Zubair Shah vs The Sub Divisional Magistrate
2013 Latest Caselaw 158 Bom

                                      1                       Cr.WP601/2013

          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                                     
                CRIMINAL WRIT PETITION NO.601/2013 




                                             
     Zubair Shah s/o Basit Shah
     Age: 24 Yrs., occu. Business,
     R/o Osmanpeth Bhokardan, 




                                            
     District Jalna.                           -  PETITIONER


           VERSUS




                                  
     1)   The Sub Divisional Magistrate
                    
          Jalna.
                   
     2)   The State of Maharashtra.      -  RESPONDENTS 
                                  *****
     Mr.MA Latif,Advocate for Petitioner;
      


     Mr.MM Neralikar, APP for State.
   



                                *****
                            CORAM : K.U.CHANDIWAL &
                                     M.T.JOSHI,JJ.

DATE : 18th NOVEMBER,2013.

ORAL JUDGMENT (PER:- K.U.CHANDIWAL,J.)

1) Heard. The petitioner questions order of externment recorded by Sub Divisional Magistrate,

Jalna, dated 18th March, 2013 in terms of Section 56(1) of Bombay Police Act, 1951.

. It is a matter of record that the petitioner carried an appeal before the Secretary (Special) Home Department, Government of Maharashtra, against the order of the the Sub Divisional Magistrate and the learned Secretary (Home Department) confirmed the

2 Cr.WP601/2013

externment order passed by the Sub Divisional

Magistrate.

2) We have gone through the proceedings

referred to above. Four cases arising out of Crime Nos.3027/2008; 3036/2008; 3010/2012 and 3024/2012, are referred for initiation of the proceedings of

externment. These four cases are under the Bombay Gambling Act. There is no other prosecution of the petitioner for offence punishable under the

provisions of Indian Penal Code.

3) Learned APP says, there are statements of

4)

the witnesses against the petitioner.

The offences registered against the

petitioner under provisions of the Gambling Act, cannot be said to be so grave and serious to cause disturbance to the public at large. Section 56 of The Bombay Police Act (Now, The Maharashtra Police Act)

deals for action if the person is engaged in

commission of an offence, involving force or violence or an offence under Chapters - XII, XVI or XVII of the Indian Penal Code, or other dangerous activities.

The confidential statements of few witnesses, to which learned APP invited our attention, demonstrate that the writ petitioner has indulged in illegal betting (Matka) activities. If it was so, it was

expected of the police machinery to discharge their obligation to nab and prosecute the petitioner for such infraction. However, application of extreme and stringent provisions of Bombay Police Act, squeezing rights of petitioner of his liberty, should not have been applied as a parameter and in routine manner.

     .           The   expression   "alarm,   danger   or   harm   to 





                                      3                        Cr.WP601/2013

person or property" in Section 56(a) of the Act,

needs to be read in tune with effect of fundamental rights guaranteed by Article 19(1)(d) and (e) of the

Constitution. There was not a public outcry about danger by presence of the petitioner/externee in the vicinity.

5) Consequently, impugned order of externment passed by the learned Sub-Divisional Magistrate, Jalna dated 18.3.2013, which is confirmed by the

order dated 17th June, 2013 by the Secretary (Special), Home Department, Government of

Maharashtra, are quashed and set aside. Rule is made absolute.

               Sd/-                    sd/-          
            (M.T.JOSHI)             (K.U.CHANDIWAL)
              JUDGE                      JUDGE
      


                    
   



                
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