Praveen Dattuji Diwate, Aged 24 ... vs The State Of Maharashtra, Through ...
2002 Latest Caselaw 270 Bom

JUDGMENT

1. By this petition filed under Articles 226 & 227 of the Constitution of India, the petitioner is challenging the order dated 13-8-2001 passed by the Sub-Divisional Magistrate, Yavatmal in Criminal Case No. 421/01 and the order dated 11-10-2001 passed by the Appellate Authority, i.e. Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department in Appeal No. EXT/04/2001/129/SPL-5.

2. Heard Shri U.A. Gosawi, the learned Counsel for the petitioner and Shri Mirza, the learned Additional Public Prosecutor for the respondents.

3. The petitioner was externed under Sections 56 & 59 of the Bombay Police Act, 1952 by an order dated 13-8-2001 passed by the respondent no.2. By the said order, the petitioner was externed for two years from Yavatmal and five neighbouring districts, namely, Nanded, Akola, Wardha, Chandrapur and Washim. The petitioner challenged the said order of externment before the Government of Maharashtra, Home Department, Mumbai in appeal. The Appellate Authority, namely, the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department vide his order dated 11-10-2001 rejected the appeal and confirmed the externment order passed by Sub-Divisional Magistrate. The petitioner challenges both the aforesaid orders on the ground that in show-cause notice there is no averment that witnesses are not coming forward to depose or that they have not lodged the complaint against the petitioner due to fear as also on the ground that though the activity of the petitioner is stated to be restricted to Yavatmal town, yet by the externment order in question, the petitioner has been externed from not only the district Yavatmal, but also 5 other districts, namely, Nanded, Akola, Wardha, Chandrapur and Washim. According to the petitioner, it is in excess of the power conferred under Sections 56 & 59 of the Bombay Police Act. Besides this, there are other grounds on which the order of externment has been challenged.

4. Shri Gosawi, the learned Counsel for the petitioner, relying upon the decision of this Court in Punjaji Dagdu Gaikwad .vs. State of Maharashtra and others reported in 2001(3) Mh.L.J. 926 contended that the order of externment suffered from vice of excessive externment from 5 districts in respect of which no data was placed and, therefore, the entire order of externment is liable to be quashed.

5. Shri Mirza, the learned Additional Public Prosecutor, though supported the impugned orders conceded that the activity of the petitioner was restricted to Yavatmal town only. However, by the externment order in question, the petitioner has been externed not only from Yavatmal town but also from 5 other districts, namely, Nanded, Akola, Wardha, Chandrapur and Washim.

6. In Punjaji Dagdu Gaikwad .vs. State of Maharashtra and others reported in 2001(3) Mh.L.J. 926 relied upon by the learned Counsel for the petitioner, this Court relying upon the decision in Pandharinath Shridhar Rangnekar .vs. Dy. Commissioner of Police, State of Maharashtra , observed in paragraph no.6 as below :- "6. In Pandharinath Shridhar Rangnekar .vs. Dy. Commissioner of Police, State of Maharashtra , upon which reliance was placed by learned A.P.P., it was held that it is the externment authority which must decide the period for which the order is to operate and the territories to which it should extend. Nevertheless, it is pertinent to note that the Apex Court had observed that it depends upon the nature of data collected in each case and no general formulation is possible, but there should not be greater restraint on personal liberty than is reasonable in the circumstances of the case. The Apex Court had referred to judgment of this Court in Balu Shivling Domble .vs. The Divisional Magistrate and held that an excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. Nevertheless, it was pointed out that the larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings. However, for that purpose data is required. In the case under consideration, there does not appear to be any such data with relation to the five districts from where also the petitioner has been externed along with the area of the activities, i.e. district Buldana.

Therefore, the impugned order suffers from the vice of excessive externment from the five districts in respect of which no data was placed and the entire externment order is liable to be quashed."

7. The aforesaid observations made by this Court clearly indicate that an excessive order can undoubtedly be struck down since no greater restraint of personal liberty can be permitted than is reasonable in the circumstances of the case. However, larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings but for that purpose data is required. In the case in hand, there does not appear to be any such data with relation to the five districts from where also the petitioner has been externed along with the area of activities, i.e. Yavatmal town. This clearly indicates that the externment order in question suffers from vice of excessive externment from the five districts mentioned as above and, therefore, both the impugned orders dated 13-8-2001 passed by the Sub-Divisional Magistrate, Yavatmal and 11-10-2001 passed by the Principal Secretary (Appeals & Security) to the Government of Maharashtra, Home Department, Mumbai are liable to be quashed.

8. In the result, the Writ Petition is allowed. The impugned orders dated 13-8-2001 and 11-10-2001 are hereby quashed and set aside. The petitioner/externee shall be set at liberty forthwith in case he is not required in any matter. Rule is accordingly made absolute in the aforesaid terms.