Bhavani Peth vs The State Of Maharashtra
2013 Latest Caselaw 58 Bom

                                                                CRWP2818-13


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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                              
                CRIMINAL APPELLATE JURISDICTION

                   WRIT PETITION NO.2818 OF 2013




                                             
    Vicky Balasaheb Jhaveri
    Age 30 years, Residing at




                                        
    Bhavani Peth, Barshi, Solapur,
    District : Solapur
    At present R/at : Ashok Munjal
    Chawl, Moroligaon, Ambarnath,
    District : Thane                                          ...Petitioner
                     
                 Versus

    1)     The State of Maharashtra,
      


           Through the Secretary (Special),
           Home Department,
   



           Government of Maharashtra,
           Mantralaya, Mumbai.





    2)     The Sub-Divisional Officer,
           Solapur Division, Solapur.

    3)     The Police Inspector,
           Barshi City Police Station,





           Barshi, District : Solapur.                    ...Respondents


    Mr. Ashish Gaikwad for the petitioner.
    Mr. K.V. Saste, APP for the State.



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                                                                     CRWP2818-13


                              CORAM : S.C. Dharmadhikari, &
                                      G.S. Patel, JJ.

DATE : 19th October 2013

JUDGMENT: (Per G.S. Patel, J.)

1. Rule. Mr. K.V. Saste, learned APP, waives service on behalf of the Respondents. By consent, Rule made returnable forthwith and

petition taken up for final hearing and final disposal.

2.

The Petitioner challenges an Externment Order dated 17th April 2013 and an Appellate Order therefrom, dated 4th July 2013,

by which the Petitioner has been externed from the District of Solapur, Pune and Osmanabad for a period of two years. The Externment Order is purportedly passed under Section 56(1)(a) of

the Bombay Police Act, 1951.

3. We have heard Mr. Gaikwad, learned Advocate for the Petitioner and Mr. Saste, learned APP, and carefully considered the

Petition and its annexures, including the two impugned orders. The Externment Order is based on four previous cases registered against the Petitioner between the years 2009 and 2012. There is also a

reference in the externment order to two proceedings under Chapter VIII of the Code of Criminal Procedure, 1973. In addition, the externing authorities have relied on two in-camera witness statements.

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4. We find that both the Externing Authority and the Appellate

Authority have completely failed to apply their minds to the factual position. In his reply to the show-cause notice that preceded the

Externment Order, as also in proceedings before the Appellate Authority, the Petitioner pointed out that he has been acquitted in at least one of the criminal cases referred to in the show cause notice

and the externment order. The manner in which the Appellate Authority has dealt with this is wholly unsatisfactory. He has, despite this acquittal, chosen to place reliance on that criminal

complaint saying that the acquittal is because "the witnesses have turned hostile". In our view, the reason for the acquittal is irrelevant

to these externment proceedings, and it is certainly not open to the externing authorities to attempt such an assessment of that judicial

order. Once the Petitioner was acquitted, that criminal complaint could not have been relied upon in support of the externment. We also note that neither in the Externment Order nor in the Appellate

Order is there any material to show how the Petitioner's alleged

previous criminal activities of 2009 to 2012 have any bearing or live link with the proposed externment.1 Further, the reliance on proceedings under Chapter VIII of the Code of Criminal Procedure,

1973 is wholly misplaced. We have repeatedly held that these proceedings have nothing to do with the provisions of the Bombay Police Act, 1951.2

Dattatraya Ramchandra Jadhav v The State of Maharashtra, Cri WP No.1666 of 2013, decided on 21st August 2013; Karan Ramesh Ghuge v Dy Commissioner of Police, Cri WP No 1305 of 2013, decided on 4th July 2013.

Namdeo Zipa Desale v M.V. Chitale, 1987 (3) Bom. C.R. 370; Zahoor Ismail Fakie v The State of Maharashtra, Cr WP No.2382 of 2013, decided on 23rd August 2013.

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5. The reliance on the in-camera witness statements is equally

misplaced. Apart from the fact that these statements are vague and only in generalities, they have no bearing whatsoever in proceedings

under Section 56(1)(a) of the Bombay Police Act, 1951. At best, they could have been relied upon if the externment was sought to be made under Section 56(1)(b). This is not the case. We also find that

the Appellate Authority has, and not for the first time, used the same stereotyped phrases while dealing with these in-camera statements in sub-para 5(e) of the Appellate Order. The Appellant

Authority has also, yet again, purported to approve the Externment Order on the ground that the externment proceedings were taken

"to maintain the peace in the said area". This is yet another consideration that is wholly extraneous to the externment

proceedings under the Bombay Police Act, 1951. 3

6. It cannot be disputed that the cases against the Petitioner

were registered only in Solapur. Yet, the Externment Order purports

to extern the Petitioner from the limits of Solapur, Pune and Osmanabad. While it is true that the territorial extent of externment is a matter best left to the Externment Authority, and, too, that his

externment is not necessarily to be restricted to the local area in which he is said to operate,4 yet it is also well settled that Order cannot be irrational or unreasonable.5 The order of externment

Shri Kishore Baliram Balu v Deputy Commissioner of Police & Ors., Cr WP No. 2829 of 2013, decided on 1st October 2013; Imran Jaffer Shaikh v State of Maharashtra, Cri. WP No.3035 of 2013, decided on 24th September 2013.

Pandharinath Shridhar Rangnekar v Dy Commissioner of Police, (1973) 1 SCC 372

Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur, 71 Bom LR 79

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cannot be excessive, i.e., it cannot be more than the situation

demands. To merely say, as the Appellate Authority does in this and in a very large number of other cases, that "the availability of fast

moving means of transport justify the action of externment" is, to our mind, entirely incorrect and displays a complete non-application of mind.

7. Neither order can be sustained. The Petition must, therefore, succeed. Rule is absolute in terms of prayer clause (a). There will be

no order as to costs.

(G.S. Patel, J.) (S.C. Dharmadhikari, J.)

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