198.2017Cri.WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.198 OF 2017
Kailas Devram Kolpe,
Age 35 years, Occu. At Present Nil,
R/o. C/o. Navnath Devram Shelke,
Shubham Park, Flat No.8, A-Wing,
4th Floor, Near Bombay Naka,
Pawan Nagar Road, Nashik. PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik.
2. The Sub Divisional Police Officer
Shirdi Division, Shirdi,
Tq. Rahata, Dist. Ahmednagar
3. The Sub Divisional Officer
Shirdi Division, Shirdi,
Tq. Rahata, Dist. Ahmednagar
RESPONDENTS
...
Mr.K.B.Borde, Advocate for the Petitioner
Ms.P.V.Diggikar, APP for the Respondent/State
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 28.02.2017 Pronounced on : 06.03.2017 JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
2. Rule. Rule made returnable ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 2 forthwith, and heard finally with the consent of the parties.
3. This Writ Petition is filed by the petitioner, questioning the legality, propriety and correctness of the order dated 30th September, 2016 passed by respondent no.1
- Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No.42/2016.
4. The learned counsel appearing for the petitioner invites our attention to the pleadings/grounds in the Petition, annexures thereto and submits that the alleged activities/offences registered against the petitioner are within the jurisdiction of Kopargaon Police Station, however, the petitioner is externed from Ahmednagar District, Yeola, Sinnar and Niphad Talukas in Nashik and Vaijapur Taluka in Aurangabad District. He submits that the order is excessive inasmuch as the alleged activities ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 3 of the petitioner are stated within the jurisdiction of the Kopargaon Police Station, however, the petitioner is externed from the above mentioned other Talukas. He further submits that there is no mention in the show cause notice dated 8th March, 2016 as well as in the impugned order that in-camera statement of the witness disclosed any specific allegedly activities committed by the petitioner causing harm or danger to a person or properties. Therefore, relying upon the judgments in the cases of Iqbaluddin Ziauddin Pirzade Vs. The State of Maharashtra and Ors.1, Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another2, Umar Mohamed Malbari Vs. K.P.Gaikwad, Dy. Commissioner of Police and another3 in the cases of Shafi and Saddam Shoukat Qureshi Vs. Assistant Police Commissioner and others in Criminal Writ 1 2015 (2) Bom.C.R. [Cri.] 464 2 1989 (3) Bom.C.R. 240 3 1988 Mh.L.J. 1034 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 4 Petition No.2032 of 2016, decided on 11.08.2016, Sayeed Firoz Sayeed Noor Vs. State of Maharashtra,4, in the case of Ravindra @ Ravi Harisingh Jadhav in Criminal Writ Petition No.117 of 2015 decided on 09.03.2015 and in the case of Balu Vs. The Divisional Magistrate, Pandharpur5, he submits that, the show cause notice is violative of the principles of natural justice. He further submits that the petitioner did not get an opportunity to explain the allegations made against him. He further submits that there was no sufficient material for arriving to the subjective satisfaction by the respondent no.2 before issuing show cause notice and passing the impugned order externing the petitioner from Ahmednagar District, Yeola, Sinnar and Niphad Talukas in Nashik and Vaijapur Taluka in Aurangabad District.
4 2016 [1] Bom.C.R. [Cri.] 270. 5 1969 Mh.L.J. 387 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 5
5. The learned APP appearing for respondent - State relying upon the reasons assigned in the order dated 30.06.2016 passed by the Sub Divisional Officer and the order dated 30.09.2016 passed by the Divisional Commissioner, Nashik Division, Nashik, submits that both the authorities, on the basis of the documents placed on record and the statement of the witness, have reached to the correct conclusion and passed the order of externment against the petitioner. Therefore, he submits that the Petition may be rejected.
6. We have carefully perused the original record of an externment proceedings. The first show cause notice dated 08.03.2016 issued by the SDPO contains that there were six crimes registered against the petitioner in Kopargaon City Police Station. It further contains that in-camera statement of one witness i.e. A, shows that the petitioner, ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 6 with the help of his companions, causes illegal excavation of sand for sale and on the basis of the money acquired therefrom, creates terror in the village. Due to his illegal acts, there has been danger to the lives and properties of the villagers. He is habituated to commit serious offences. Therefore, the witness gave statement against him on the condition of non-disclosure of his name. In the second show cause notice dated 27.04.2016, issued by the Sub Divisional Magistrate, Shirdi Division, Shirdi, there is absolutely no mention about the in-camera statement alleged to have been recorded by the SDPO. There is no mention in the said statement with regard to the alleged incidents of violence committed by the petitioner which created fear in the minds of the villagers. Such vague and general statement cannot be relied on to curtail the liberty of a person to move freely in the ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 7 area in which he is legitimately entitled to move. In the circumstances, in view of the judgments in the case of Bilal Gulam Rasul Patel Vs. Divisional Magistrate, Thane and others6 and in the case of Bajrang Sidaram Jadhav Vs. State of Maharashtra and others in Criminal Writ Petition No.282 of 2013, decided on 23.08.2013, the externment order passed on the basis of such show cause notices, being violative of the principles of natural justice, is liable to be set aside.
7. As stated above, the petitioner is alleged to have committed the offence within the local limits of Kopargaon Police Station only. However, he has been externed from the above mentioned tahsils from Ahmednagar, Nashik and Aurangabad Districts. The impugned order does not contain any justifiable reason to ban entry of the petitioner in other tahsils. The impugned order of externment ex- 6 2014 All MR [Cri.] 2161 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 8 facie is harsh and excessive. There is no material on record to show that the petitioner committed any offence in the area of the other tansils, excepting that of Police Station, Kopargaon. 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 another7, the impugned order of externment would be unsustainable in law.
8. In view of the above facts and circumstances of the case, the externment order dated 30th September, 2016, being illegal, is liable to be set aside and accordingly set aside with the following order:
ORDER
(i) Criminal Writ Petition is allowed.
(ii) The impugned order of externment dated 30th September, 2016, passed in 7 2014 [1] Mh.L.J. [Cri.] 710 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 01:11:50 ::: 198.2017Cri.WP.odt 9 Externment Appeal No.42/2016, is quashed and set aside.
(iii) Rule is made absolute in the above terms.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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