1 WP: 1088/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1088 OF 2010 Shri Arun Shripati Bhalerao .... Petitioner Vs. The State of Maharashtra & Ors. .... Respondents Mrs. V.R. Raje, Advocate for Petitioner. Mr. H.J. Dedhia, APP. For State. Coram : Smt. R.P.SondurBaldota, J. Date : 7th July, 2011 P.C. 1. Rule. Rule made returnable forthwith. 2. This writ petition challenges the order of externment dated 3rd April 2010 issued by the Deputy Commissioner of Police, Zone-4, Pune under Section 56(1)(b) of the Bombay Police Act. 3. The petitioner contends that the show cause notice dated 3rd September 2009 preceding the impugned action contains the same grounds as in the earlier identical action initiated against him. The petitioner had been served notice dated 20th July 2008 calling upon him to show cause as to why action of externment be not taken 2 WP: 1088/2010 against him. The show cause notice had culminated into externment order dated 26th February 2009. The petitioner had preferred writ petition in this court being Writ Petition No.1014 of 2009 to challenge that order of externment. The petition came to be allowed by this court by the order dated 29th April 2009 and the externment order quashed. Perusal of the old show cause notice dated 20th July 2008 and the present notice dated 3rd September 2009 shows that substantial part of the material mentioned therein against the petitioner is the same. The subsequent notice differs in only addition of three cases being CR No.279 of 2008 for the offences punishable under Sections 309, 504, 506(I) Indian Penal Code, C.R. No. 164 of 2009 for the offences punishable under Sections 452, 232, 504, 506(I) Indian Penal Code and C.R. No.111/2009 for the offence punishable under Section 385 Indian Penal Code. The learned counsel for the petitioner states that the petitioner has been acquitted in two of the cases i.e. in C.R. Nos.279 of 2008 and 164 of 2009 and the third case is pending. She argues that thus there is almost no material against the petitioner and that the externment order cannot be founded on a solitary incident. She also submits relying upon decision of this court in Subhash Bhoir vs. K.P. Raghuvanshi, reported in 1987(1) 3 WP: 1088/2010 Bom. C.R.,page 425 that where some of grounds which were subject matter of earlier externment proceedings, are made basis of the subsequent proceedings, the whole externment proceedings get vitiated. Learned APP strongly opposes the petition submitting that two more cases have been registered against the petitioner since filing of the present petition. 4. The challenge to the order is on the grounds that the order does not disclose application of mind on the part of the externment authority. It is based on stale grounds. And thirdly that it is issued for extraneous reasons. The application is opposed on the ground that the writ petition filed without exhausting the alternative remedy of statutory appeal is not maintenable. The state also contends that considering the criminal background of the petitioner and the criminal activities continuously indulged into by him, it is in the interest of the general public that he is externed. 5. Perusal of the impugned externment order, the show cause notice preceding thereto and the earlier show cause notice makes it abundantly clear that substantial grounds in the two show cause notices are same. The grounds which had formed basis of the earlier externment order had already undergone judicial scrutiny in 4 WP: 1088/2010 Writ Petition No.1014 of 2009 and were found to be insufficient to sustain the externment order. They were also therefore beyond the purview of consideration for similar action. The impugned order however takes into consideration all the grounds including the grounds covered by the earlier notice. The impugned order therefore gets vitiated. Besides there is also substance in the contention of the petitioner that the impugned order does not disclose application of mind. It merely lists all the complaints filed against the petitioner whether pending or otherwise and then records conclusion that the activities of the petitioner are causing harm alarm or danger to the residents or traders in the locality. The impugned order affects the fundamental right of the petitioner to move freely throughout the territory of India guaranteed under Article 19(1)(d) of the Constitution of India. Therefore, the same could not have been passed in a casual manner. The three complaints subsequently registered against the petitioner are not even separately mentioned in the externment order much less discussed. For this reason also, the impugned order cannot be sustained. 6. As regards the argument of non-maintenability of writ petition in view of the alternative remedy of an appeal to the State 5 WP: 1088/2010 Government, the same is in the facts of the case meritless. The division bench of our High Court in Umar Malbari vs. K.P. Gaikwad, Deputy Commissioner of Police and Another, reported in 2000 ALL M.R. (Cri.) 578 has held that failure to exhaust alternative remedy does not bar jurisdiction of the High Court but is only a rule relating to the discretion of the court. The relevant observations at paragraph 9 of the judgment read as follows: In our judgment, there is no merit in this contention “ inasmuch as the Rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant petition. Therefore, the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain and dispose of the petition, but is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to this Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the Act viz. An appeal to the State Government against the order.” In the present case, the impugned order being absolutely non sustainable, it must be held that it affects the petitioners fundamental right to move freely throughout the territory of the country guaranteed under Article 19(1)(d) of the Constitution of India is infringed. Hence, the 6 WP: 1088/2010 petition can be entertained by this Court. 7. In the above circumstances, the externment order cannot be sustained and the same is required to be set aside. The petition is therefore allowed in terms of prayer clause (c). Rule is made absolute. (Smt. R.k.SondurBaldota, J)