Bombay High Court
Indian Inhabitant vs The State Of Maharashtra on 2 December, 2013
Bench: S.C. Dharmadhikari, R.P. Mohite-Dere
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2115 OF 2013
Manik Ramchandra Gupta
Indian Inhabitant, adult
Occupation : Business,
Presently residing at 203,
Building No.C/15, Sector No.2.,
Shanti Nagar, Mira Road (East),
Thane. ...Petitioner.
v/s.
1. The State of Maharashtra
Through the Government Pleader,
Hon'ble High Court at Bombay.
2. Sub-Divisional Magistrate,
Thane Division, Thane.
3. Principal Secretary,
(Appeal & Security), Home Department,
State Government of Maharashtra,
Mantralaya, Mumbai
4. Senior Inspector of Police,
Mira Road Police Station,
Thane Division, Thane. ...Respondents.
---
Mr. Waquar Ahmad for the petitioner.
Ms. P. H. Kantharia, APP for the State.
----
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CORAM: S.C.DHARMADHIKARI &
REVATI MOHITE DERE, JJ.
DATE : 2nd DECEMBER, 2013.
JUDGMENT (Per Revati Mohite Dere,J. ) :-
1. Heard Shri Waquar Ahmad, learned Counsel for the petitioner
and Ms. P. H. Kantharia, learned A.P.P.
2. Rule. Rule made returnable forthwith with the consent of the
parties and taken up for final hearing.
3. The petitioner in this petition preferred under Article 226 of
Constitution of India, takes exception to the order of externment dated 19 th
December, 2012 passed by the Sub-Divisional Magistrate, Thane Division,
Thane No.TD/4/ADMN/Haddapar/SR-13/12 and the order dated 26th April,
2013 passed by the Appellate Authority i.e. Secretary (Special), Home
Department, Government of Maharashtra, confirming the order of
externment in Appeal No.EXT-2013/23/SPL-3(B).
4. Considering the petitioner's activities, it appears that the
respondent No.3 had initiated an action for externing the petitioner. On a
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proposal submitted to the Sub-Divisional Police Officer, Mira Road
Division, a show cause notice came to be issued to the petitioner, on 6 th
July, 2012 under Section 59 of the Bombay Police Act, 1951 (hereinafter
referred to as the `Act of 1951'). The petitioner replied to the said notice.
After considering the reply, the Sub-Divisional Police Officer, Mira Road
Division, i.e. the Enquiry Officer forwarded his report to the Externing
Authority i.e. the Sub-Divisional Magistrate, Thane Division, Thane. On
receipt of the said report,
ig the Externing Authority after giving an
opportunity to the petitioner, passed the impugned order dated 19 th
December, 2012, externing the petitioner from the Districts of Thane,
Pune, Nashik, Brihan Mumbai and Mumbai Suburban District for a period
of two years.
5. Against the said order of externment dated 19th December, 2012,
the petitioner preferred an Appeal being Appeal No.EXT-2013/23/STL-
3(B) before the Secretary (Special), Home Department, Government of
Maharashtra. The Appellate Authority after hearing both the parties
confirmed the order of externment vide Order dated 26th April, 2013. The
petitioner has challenged before us, both the aforesaid orders.
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6. The learned counsel for the petitioner Mr. Ahmad urged before
us, that the order of externment was clearly excessive, in as much as the
offences that were registered against the petitioner from 2009 to 2011, were
registered only with the Mira Road Police Station, Thane, whereas the
order of externment extended not only to Thane District but also to Pune
and Nashik Districts, Brihan Mumbai and Mumbai Suburban District. He
contended that the offences registered as against the petitioner have not
ended in any conviction nor was there anything on record to show that the
petitioner had abused the conditions of bail, granted in those cases and as
such prayed for quashing and setting aside of the impugned orders. He
also contended that due to the order of externment, his business has been
adversely affected and he being the sole earning member of the family, the
order of externment violated his fundamental right to livelihood.
7. Per contra, learned APP supported the impugned orders and
prayed for dismissal of the petition. It was contended that the order of
externment is not excessive considering the close proximity of the
extended Districts to Thane District.
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8. At the outset, it would be useful to refer to the cases alleged to
have being registered as against the petitioner with the Mira Road Police
Station, Thane, which are as follows :-
Sr. Police C.R. Offences alleged Status as per Actual Status
No. Station No. Notice
1. Mira I-344/11 Section 325, 504, Pending Pending
Road 506, 34 IPC
2. Mira I-593/09 Section 326, 325, Pending Pending
Road 143, 147, 148,
149, 504, 506
IPC
3. Mira I-140/11 Section 354, 323, Pending Pending
Road 504, 506, 34
IPC
PUBLIC NON-COGNIZABLE OFFENCES
Sr. No. Police Station C.R. No. Section
1. Mira Road 1210/2005 323, 504, 506 IPC
CHAPTER CASE
Sr. No. Police Station Chapter Case Section
No.
1. Mira Road 70/2005 107 Cr. P. C.
9. From a perusal of the aforesaid chart, it is evident, that all the
cases which came to be registered against the petitioner pertained to Mira
Road Police Station, Thane from the period 2009 to 2011 and that there
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was not a single offence alleged to have been committed by the petitioner
in any of the other districts viz. Pune, Nashik, Brihan Mumbai and Mumbai
Suburban District. We are conscious of the decision of the Apex Court
rendered in Pandharinath Shridhar Rangnekar v/s. Deputy
Commissioner of Police, State of Maharashtra 1. It is true, that the area of
externment can be larger than the area to which the activities of the
externee are or were confined, as the object is to isolate the externee. It is
true, that the District of Greater Mumbai and Thane are intimately
connected, due to the existence of several factors, such as continuous
availability of suburban trains, taxis plying to and from Greater Bombay
and by bus services operating between Greater Bombay and several parts
of Thane District, so as to form a single unit. Therefore, the Apex Court in
Pandharinath's case (supra) proceeded on the basis of an established
intimate connection between Greater Mumbai and Thane District.
10. Keeping in mind the aforesaid, we may note that the areas to
which the order of externment is to operate must be chosen by the
Externing Authority, with a view to merit the situation created by the
objectionable acts of the persons sought to be externed. It would not be out
1 [1973 Mh.L.J.]
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of place to refer to the decision of Balu Shivling Dombe v/s. The
Divisional Magistrate, Pandharpur2. The challenge in the said petition
was to the order of externment of the petitioner therein, who was a resident
of Pandharpur in the District of Solapur. The order of externment passed
against the petitioner in that case extended to the Districts of Solapur,
Satara and Pune. There was challenge in that petition to the order of
externment, on the ground, that the order was excessive and that Section 56
of the Act of 1951 authorised externment of a person outside the area
within the local limits of jurisdiction of the authority making the order as
"such area and any district or districts, or any part thereof, contiguous
thereto." The Division Bench of this Court in Balu's case (supra) held,
that the words used in Section 56 of the Act of 95, cannot be so construed
so as to enable the authority to extend the area of externment without
reference to the purpose of the externment. In paragraph 9 of the said
decision, the Division Bench held thus :-
"9. There is a third ground why the impugned order requires to
be set aside. Supposing that the two grounds mentioned in cls. 2 (h) and 2
(i) of the notice permit the externment of the petitioner, it is difficult to
understand why the Divisional Magistrate extended the order to the three
revenue districts of Sholapur, Poona and Satara. Section 56 authorises the
externment of a person outside the area within the local limits of the
jurisdiction of the authority making the order as "such area and any
district or districts, or any part thereof, contiguous thereto." These words,
however, cannot be so interpreted as to enable the authority to extend the
2 [1969 Mh.L.J 387]
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area of externment without reference to the purpose of the externment. In
a sense, the whole State of Maharashtra is contiguous to any area within
that State. If the authority concerned is not to have an arbitrary and
unguided discretion in deciding the area of externment it must follow that
the area must be so chosen as to meet the situation created by the
movements or acts of the person to be externed. Such an interpretation is
also necessary in order that Section 56 may be in conformity with Art.
19(5) of the Constitution referred to above. The restriction placed by
Section 56 on the fundamental rights guaranteed by Art. 19(1)(d) and (e)
of the Constitution cannot be held to be a reasonable restriction, unless
the area of externment is restricted to the requirement created by the
movements or acts of the person to be externed. The allegation contained
in the notice in the present case was that the illegal acts of the petitioner
had led to an atmosphere of danger and alarm "in Pandharpur city and the
surrounding area." The two illegal acts on which the Divisional
Magistrate relied were confined to Pandharpur city. No reasons have been
given or suggested by the Divisional Magistrate for extending the area,
not only outside the Pandharpur taluka, but to the district of Sholapur,
and the districts of Poona and Satara as well.
11. Thus, the Division Bench in Balu's case (supra) found that there
were no reasons given or suggested by the Authority for extending the area
of externment besides the District of Solapur to the Districts of Pune and
Satara. The said decision in Balu's case (supra) has not been disturbed by
the Apex Court. In the case of Balu (supra), this Court held, that liberal
interpretation cannot be given to the phraseology used in Section 56 of the
Bombay Police Act, 1951, as in a sense the whole State of Maharashtra
can be said to be contiguous to any area within the State. It may be noted,
that in the case of Pandharinath (supra), the Apex Court has not adopted
the test of geographical proximity. The test adopted was based on several
factors such as availability of easy modes of transport like
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suburban trains and more importantly intimate connection. It is pertinent
to note, that what was accepted as correct by the Apex Court in
Pandharinath's case (supra) are the several decisions of this Court rendered
after considering the local colour and condition, holding that Greater
Mumbai and Thane are intimately connected and form, to say, a single unit.
12. In Ganpat @ G. Katare v. Assistant Commissioner of Police 3
this Court in Para 12 observed thus:
"12. There cannot be any dispute that considering the facts and
circumstances of a particular case, the order of externment need not be
restricted to the area in which illegal activities of the externee are carried
on. A larger area may always form part of externment order. In a case
where activities are confined to particular district and geographically
contiguous district is shown to be intimately connected to the said
district, the order may extend the both districts. Mere geographical
proximity is no ground to extend the order of externment to another
district in which there are no objectionable activities by the externee.
The decision of the Apex Court in Pandharinath's case proceeds on the
basis of established intimate connection between Mumbai and Thane
Districts. The area to which order of externment is to operate must be
chosen with a view to meet the situation created by the objectionable
acts of the person sought to be externed."
13. We may state that there cannot be any dispute, that considering
the facts and circumstances of a particular case, the order of externment
3 2006 (1) Bom.C.R. (Cri.) 44
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need not be restricted to the area, in which the illegal activities of the
externee are carried out, and that a larger area can always form part of an
externment order. Thus, an order of externment may extend to other
Districts i.e. geographically contiguous districts, which are shown to be
intimately connected. However, that would depend on the facts and
circumstances of each case and the order passed by the externing authority
must record the reasons for the same.
14.
We have perused the petition along with the annexures thereto
and after giving our anxious consideration to the rival submissions
advanced by the parties, we are of the opinion that the impugned order of
externment dated 19th December, 2012 passed by the Sub-Divisional
Magistrate, Thane Division, Thane and confirmed by the Appellate
Authority vide order dated 26th April, 2013 ought to be quashed and set
aside, as the same suffers from the vice of excessive jurisdiction and
cannot be sustained in law.
15. In the present case, the petitioner's area of activities as is
evident from the chart set out in para 8, were confined only to Mira Road
Police Station, Thane District, whereas the order of externment relates and
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extends to other Districts i.e. Pune, Nashik, Brihan Mumbai and Mumbai
Suburban District. As observed earlier, mere geographical proximity
would not be a ground to pass an order of externment. The impugned
order of externment merely records that there are facilities of
communication and transport available between the said districts and the
geographical proximity of the four Districts i.e. Pune, Nashik, Brihan
Mumbai and Mumbai Suburban to Thane District. Infact, Brihan Mumbai
and Mumbai Suburban can be considered to be intimately connected with
Thane District, by means of communication, transport and proximity, but
Pune and Nashik Districts are areas far widely removed from the locality,
i.e. Mira Road, where the externee had allegedly committed illegal acts i.e.
from 2009 to 2011.
16. There is nothing on record in the Impugned Order of
externment to show that considering the facts peculiar to the petitioner
there was necessity of extending the order to other districts, i.e. beyond
Thane to Brihan Mumbai, Mumbai Suburban, Pune and Nashik Districts.
The impugned order of externment also does not record even preferably
the necessity of extending the order to other districts beyond Thane. The
impugned order, apart from stating geographical proximity of Thane
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District to other Districts and the means of transport available between the
Districts does not record the objectionable activities of the externee in the
Districts of Pune and Nashik, Brihan Mumbai and Mumbai Suburban nor
does it record the necessity of extending the order to other Districts i.e. it
was necessary to extern the externee to meet the exigencies/situation
created by him by his objectionable and prejudicial acts. Therefore, in our
view, in the absence of any material data to the contrary, the order of
externment is clearly excessive in as much as it also extends to other
districts. Infact, Thane District, Brihan Mumbai, Mumbai Suburban, may
be considered as a single unit in a given case, but by no stretch of
imagination, it can be said that Pune and Nashik are so intimately
connected to Mira Road in District Thane and infact that is not even the
case made out by the State. Considering the nature of cases listed against
the petitioner, even assuming his involvement in them, were not grave
enough to resort to such a drastic measure of externment of `the petitioner
from the vast areas of Brihan Mumbai, Mumbai Suburban, Pune and
Nashik Districts in the facts and circumstances of this case. An externment
order which is outrageously disproportionate to the alleged
offence/criminal acts cannot be sustained in law.
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17. It is well settled that an excessive order can undoubtedly be
struck down as there can be no greater restraint on personal liberty than is
reasonable in the circumstances of the case. Exercise of power by the
Externing Authority cannot be arbitrary or excessive and the order of
externment passed ought to be with reference to the purpose of externment
and not mere geographical proximity. In view of the findings recorded by
us, we are of the opinion, that in the facts of the present case, the order of
externment dated 19th December, 2012 passed by the Sub-Divisional
Magistrate, Thane Division, Thane no. TD/4/ADMN/Haddapar/SR-13/12
and confirmed by the Appellate Authority dated 26th April, 2013 ought to
be quashed and set aside.
18. Rule is accordingly made absolute in terms of prayer clause (a).
(REVATI MOHITE DERE,J.) (S.C.DHARMADHIKARI,J.)
