Bombay High Court

Vilas Siddharth Sirsat vs Unknown on 7 December, 2009

Bench: S. S. Shinde

                                              1

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR




                                                                                       
                 Criminal Application No. 2907 of 2009




                                                               
    Vilas Siddharth Sirsat,
    Aged about 26 years,




                                                              
    Occupation - Business,
    R/o Bhim Nagar, Old City,
    Akola.                                                  .. APPLICANT

                    .. Versus ..




                                                 
    1. The State of Maharashtra,
                              
       through its Secretary,
       Ministry of Home Affairs,
       Mantralaya, Mumbai-32.
                             
    2. Sub-Divisional Magistrate,
       Akola, District-Akola.                              .. NON-APPLICANTS

    -------------------------------------------------------------------------------------
      

    Mr. N.B. Jawade, Advocate for the applicant,
    Mr. S.S. Doifode, Advocate for the non-applicants.
   



    -------------------------------------------------------------------------------------

                                    CORAM:- S. S. SHINDE, J.
                                    DATED :- 5th DECEMBER, 2009





    JUDGMENT

1. This application takes exception to the order dated

18-12-2008 passed by the Sub-Divisional Magistrate, Akola in

Case No. 29/2008 and the order dated 12-3-2009 passed by the

Principal Secretary in Appeal No. EXT-2009/8/Visha-5, thereby

rejecting the appeal of the applicant.

2. Brief facts of the case are as under :-

The non-applicant No.2 herein issued show cause notice

asking the applicant as to why he should not be externed from

five districts under the Amravati Division. The said notice was

never served on the applicant. On 18-12-2008 the applicant

came to know that the order of externment under Section 56 of

the Bombay Police Act has been passed. The applicant,

therefore, preferred an appeal bearing No.8/2009 under Section

60 of the Bombay Police Act.

ig The Principal Secretary by the

impugned order dated 12-3-2009 dismissed the said appeal.

Hence, this application is filed.

3. The learned Advocate appearing for the applicant

submits that no independent enquiry has been conducted by

the Sub-Divisional Magistrate before issuing the show cause

notice to the applicant and has relied solely on the report

placed by the Police Station Officer, Akola. The learned

Advocate further submitted that the offences mentioned in the

said show cause notice and further relied upon by the Sub-

Divisional Magistrate for passing the impugned order cannot be

considered since in first five offences mentioned in the show

cause notice, the applicant has been acquitted when in other

cases, the applicant has been granted bail.

4. The learned Advocate further submitted that on perusal

of the offences in the show cause notice, would show that the

same have been registered only in two Police Station in Akola

city. The last offence was registered against the applicant in

the previous in 2007. No offence is registered against the

applicant in the year 2008. The learned Advocate further

submitted that the order has been passed mechanically.

5. The learned Advocate in support of his contention that no

externment order externing the applicant could have been

passed from other districts than a district in which alleged

activities have been attributed to the applicant, relied on

following judgments;-

1. Shri Umar Mohamed Malbari .v. K.P. Gaikwad Deputy

Commissioner of Police, Zone-II, Thane and another reported in Cr.L.R.(Mah). 1988, 480;

2. Suleman Husa Davji .v. The State of Gujarat and another reported in 1989 Cr.L.R.(Guj.) 132;

3. Namdeo Laxman Charde .v. Sub-Divisional Magistrate Katol reported in 1996(1) Mh.L.J. 483;

4. Babadin s/o Badruddin .v. State of Maharashtra reported

in 2001(1)Mh.L.J. 502;

5. Cri.W.P. 777 of 2005 Nandkishor s/o Jagdish Duryodhan .v. State of Maharashtra and others;

6. Bharat s/o Dhondba Tarare .v. The Sub-Divisional Officer and others reported in 2007 ALL MR(Cri) 3036;

7. Gunwanta s/o Gajanan Khandekar .v. Sub-Divisional Magistrate, Sub-Division Ramtek and others reported in

2008 ALL MR (Cri) 1519:

6. Therefore, the learned Advocate submits that the order of

externment dated 18-12-2008 passed by the non-applicant No.

2 and order dated 12-3-2009 passed by the Principal Secretary

may be quashed and set aside.

7. The learned APP appearing for the non-applicants/State

vehemently opposed the application and submitted that the

applicant is habitual criminal person, there are several First

Information Reports lodged against the applicant in the Police

Station Akola City, Akola.

8. The learned APP invited my attention to the affidavit in

reply filed on behalf of the State and submitted that this

application is devoid of any merits and deserves to be rejected.

9. I have heard the learned Advocate appearing for the

applicant at length and learned APP for the non-

applicants/State. This application deserves to be allowed only

on the point that the externment order passed by the non-

applicant No.2 externing the applicant from five districts is not

sustainable, in view of the admitted position that, the alleged

offences and activities against the applicant are within the area

of Akola City. This point is no more res integra. This Court in

number of pronouncements held that, if the externment order

is passed externing the person more than one districts and his

activities or offences alleged against him are only in one

district, then the externment order externing the concerned

person has to go. This Court in case of Shri Umar Mohamed

Malbari .v. K.P. Gaikwad Deputy Commissioner of Police,

Zone-II, Thane cited (Supra) in paragraph 7 this Court has

observed that-

"If the activities indulged in by the

petitioner were restricted within the Taluka

of Bhiwandi within the Thane Commissionerate, the order externing the petitioner out of the Raigad and Nasik

Districts which has within them Taluka places at a distance of more than 100 miles will undoubtedly be an excessive order and an excessive order has

necessarily to be a struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case."

10. In Paragraph 8 of the said Judgment this Court further

observed that -

"This Court is only concerned with the question as to whether the Tribunal exercising judicial or quasi judicial function

has or has not acted without jurisdiction or whether in the exercise of jurisdiction it has acted in excess of jurisdiction. If it has

acted in excess of jurisdiction, then the

jurisdiction of this Court is to quash the order passed in excess of jurisdiction. There the power of the High Court stops. It

has no power to go further and to correct an excessive order passed by the Authority concerned."

11. The view taken by the Division Bench in case of Shri

Umar Mohamed Malbari .v. K.P. Gaikwad Deputy

Commissioner of Police, Zone-II, Thane cited (Supra)

followed by this Court in other reported judgments cited

(Supra) in paragraph 4 above.

12. Therefore, the order passed by the non-applicant No.2

suffers from voice of excess. In fact the alleged activities of the

applicant are restricted to Akola district alone and he has been

externed from the other districts and thereby the order passed

by the non-applicant No.2 is excessive. As held by the Division

Bench of this Court in Shri Umar Mohamed Malbari .v. K.P.

Gaikwad Deputy Commissioner of Police, Zone-II, Thane