IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 385 OF 2017
Ganesh s/o Sanjay Kolpe,
Age : 24 years, occu. Agri.,
R/o Kolpewadi, Tq. Kopargaon,
District Ahmednagar, at present
r/o C/o Mayur Ramesh Khade,
Jachakmala, Jaibhawani Road,
Nashik PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik
2. The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Taluka Rahata, Dist. Ahmednagar RESPONDENTS
AND
CRIMINAL WRIT PETITION NO. 386 OF 2017
Yogesh s/o Sanjay Kolpe,
Age : 26 years, occu. Agri.,
R/o Kolpewadi, Tq. Kopargaon,
District Ahmednagar, at present
r/o C/o Mayur Ramesh Khade,
Jachakmala, Jaibhawani Road,
Nashik PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik
2. The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Taluka Rahata, Dist. Ahmednagar RESPONDENTS
----
Mr. S.T. Shelke, Advocate for the Petitioners
Mr. S.B. Yawalkar, A.P.P. for the respondents/State
----
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2 criwp385-386-2017
CORAM : S.V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
DATE : 5th APRIL, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule, returnable forthwith. With the consent of the learned counsel for the petitioners and the learned A.P.P., heard finally.
2. Common questions of law and facts are involved in these writ petitions. Hence, they are being decided by this common judgment.
3. The petitioners, who are the real brothers, have challenged the vires of the externment orders dated 26th October, 2016, passed against them by respondent No.2 - Sub-Divisional Magistrate, Shirdi and confirmed by respondent No.1 - Divisional Commissioner, Nasik vide orders dated 17th February, 2017 and 22nd February, 2017, respectively.
4. The learned counsel for the petitioners subits that the impugned orders of externment have been passed without application of mind. There was no sufficient ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 22:10:20 ::: 3 criwp385-386-2017 material against the petitioners so as to pass such orders against them. He further submits that the impugned orders whereby the petitioners have been externed for a period of two years from the local limits of Tahsils Kopargaon, Rahata, Shrirampur and Sangamner of Ahmednagar district, Yeola, Sinner and Niphad Tahsils of Nasik district and Vaijapur Tahsil of Aurangabad district, are exfacie excessive and uncalled for, in view of the fact that only two crimes have been registered against the petitioner - Ganesh in Police Station, Kopargaon and five crimes have been registered against the petitioner - Yogesh in the same Police Station. He submits that there is nothing on record to show that the petitioners indulged in criminal activities in the other Tahsils, referred to above. He submits that in none of the crimes registered against the petitioners in Kopargaon Tahsil, they have been convicted. He, therefore, submits that the impugned orders are not at all sustainable.
5. On the other hand, the learned A.P.P. supports the impugned orders on the say that the petitioners are involved in illegal excavation and transportation of ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 22:10:20 ::: 4 criwp385-386-2017 sand from the bank of river Godawari which flows from the above referred Tahsils of Ahmednagar, Nasik and Aurangabad districts. He submits that considering the crimes registered against the petitioners and their criminal activities having the effect of creating terror in the locality, on the basis of subjective satisfaction of respondent Nos.1 and 2, they have been rightly externed as per the impugned orders.
6. So far as the petitioner - Ganesh is concerned, he was accused No.6 in Regular Criminal Case No. 253 of 2015, registered on the basis of Crime No. 37 of 2015 in Police Station, Kopargaon for the offence punishable under Section 379 read with 34 of the Indian Penal Code ("IPC", for short). He has been acquitted alongwith other 27 accused persons in that criminal case as per the judgment and order dated 21st December, 2016. The learned counsel for the petitioner - Ganesh has produced a copy of the FIR in Crime No. 15/2015 wherein the name of the petitioner is not specifically mentioned.
7. So far as the petitioner - Yogesh is concerned, four crimes are said to have been registered against him in Police Station, Kopargaon. Besides that, one chapter ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 22:10:20 ::: 5 criwp385-386-2017 case under section 107 of the Code of Criminal Procedure also has been initiated against him. On the basis of three crimes, three criminal cases have been instituted against him, which are still pending. Crime No. 42 of 2016 was at the stage of investigation when the impugned order of externment was passed. No crime has been registered against him except in Kopargaon Tahsil. There is nothing on record to show that any specific incident of violence has been reported even by any in- camera witness from any other Tahsil than Kopargaon.
8. Even if it is accepted for a while that the petitioners indulged in some criminal activities in Tahsil Kopargaon, there was absolutely no reason to extern them from other Tahsils than Kopargaon. The impugned orders do not contain any justifiable reason to ban entry to the petitioners in other seven Tahsils of three districts. The impugned orders of externment are exfacie harsh and excessive. In the circumstances, in view of the judgment in the case of Rameshkumar @ Ramu Singh s/o Shriram Singh Thakur Vs. State of Maharashtra and another 2013 (10) LJSOFT 15, the impugned orders of externment would be unsustainable in law. The impugned ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 22:10:20 ::: 6 criwp385-386-2017 orders, therefore, are liable to be quashed and set aside. In the result, we pass the following order:-
9. The Criminal Writ Petitions are allowed. The impugned orders of externment, passed against the petitioners by respondent No.2 - Sub-Divisional Magistrate, Shirdi and confirmed by respondent No. 1 - Divisional Commissioner, are quashed and set aside. Rule is made absolute in the above terms.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
npj/criwp385-386-2017
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