Annarao @ Pintu Baburao Patil vs The State Of Maharashtra And Ors
2016 Latest Caselaw 1671 Bom

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    sas
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                           CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL WRIT PETITION NO.559 OF 2016




                                                    
          Annarao @ Pintu Baburao Patil,
          Age: 30 years, Occu: Agriculturist,




                                                   
          R/o. Village Shegaon, Taluka
          Akkalkot, District Solapur.                             ..Petitioner.




                                            
                          V/s.

          1.
                                    
                 State of Maharashtra.
                                   
          2.      Divisional Commissioner,
                 Pune Division, Pune.

          3.     Sub-Divisional Magistrate,
            


                 Solapur No.2, Solapur,
         



                 Collector Compound, Solapur.

          4.     Superintendent of Police,





                 Solapur Rural.

          5.      Senior Police Inspector,
                 Akkalkot South Police Station.                   ..Respondents.





          Mr.P.G.Sarda for the petitioner.

          Mrs.S.D. Shinde, APP for the respondent-State.




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           CORAM :            NARESH H.PATIL AND A.M.BADAR, JJ.

           RESERVED ON                  : 31ST MARCH, 2016




                                                                              
           PRONOUNCED ON : 20TH APRIL, 2016




                                                      
    JUDGMENT (PER A.M.BADAR, J.)

1. Rule. Rule made returnable forthwith. Heard finally

by consent of the learned counsel appearing for the parties.

2.

By the instant petition filed under Articles 226 and

227 of the Constitution of India, the petitioner is praying for

quashing and setting aside the impugned order dated 22 nd

December, 2015 passed by the learned Divisional

Commissioner, Pune Division, Pune in Appeal No.AR/EA-

102/2015 thereby dismissing the appeal filed by the petitioner

/ externee and confirming the order dated 31 st August, 2015

passed by the Sub-Divisional Magistrate, Solapur-2, Solapur

whereby the petitioner / externee was directed in exercise of

powers under section 56 of the Maharashtra Police Act, 1951

to remove himself from the territorial limits of Solapur, Pune

and Osmanabad Districts for a period of one year.

3. The facts leading to the institution of the present

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petition can be summarized thus :-

On 7th June, 2014, a proposal (record page 21)

came to be moved by the Police Inspector, Akkalkot Police

Station, Solapur whereby the Sub-Divisional Magistrate,

Solapur came to be requested for initiating proceedings for

externment of the petitioner from Solapur, Pune and

Osmanabad Districts for maintaining peace and tranquility.

On receipt of the said proposal, the Sub-Divisional Magistrate

asked the Sub-Divisional Police Officer, Akkalkot to make

necessary inquiries and submit report. Accordingly, after

making necessary inquiries, Sub-Divisional Police Officer,

Akkalkot submitted report to the Sub-Divisional Magistrate on

1st October, 2015. Thereafter, vide notices dated 7 th October,

2014 and 18th June, 2015, the petitioner was informed about

the general nature of the material allegations against him and

reasonable opportunity to submit his explanation was granted

to him. As the petitioner failed to submit any explanation to

the show cause notices, vide order dated 31 st August, 2015,

the learned Sub-Divisional Magistrate, Solapur-2, Solapur was

in exercise of powers section 56 of the Maharashtra Police Act,

1951 directed the petitioner to remove himself from Solapur,

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Pune and Osmanabad Districts for a period of one year from

the date of the order.

Feeling aggrieved by the said order, the petitioner

preferred an appeal under section 60 of the Maharashtra

Police Act, 1951. The Appellate Authority i.e. learned Sub-

Divisional Police Officer, Pune vide the impugned order dated

22nd December, 2015 was pleased to dismiss the said appeal

bearing No.AR/ EA-102/2015. Hence the instant petition.

4.

Heard the learned counsel appearing for the

petitioner. He vehemently argued that the petitioner was

falsely implicated in the alleged offences and there is no live

link to the past prejudicial activities to pass the impugned

order of externment. Learned counsel for the petitioner further

argued that the impugned order is based on stale and old

ground. According to the learned counsel for the petitioner,

the impugned order of externing the petitioner from three

Districts is an excessive order passed without giving any

reasons for the same.

5. As against this, the learned APP appearing for the

respondent-State supported the impugned order by

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contending the movement and act of the petitioner were

causing alarm and danger to the persons as well as property

of the public at large. Learned APP further argued that in all

five offences covered by Chapter XVI and XVII came to be

registered against the petitioner and there is a reign of terror

of the petitioner against citizens of the locality. The petitioner

has no fear of law and he is in habit of commission of crime

thereby terrorizing the residents. According to the learned

APP, the question of maintaining of public order had arisen

because of the habit of the petitioner to commit grave

offences.

6. We have also perused the record made available by

the learned APP.

7. At the outset, it needs to be examined whether the

impugned order of externing the petitioner from three

Districts viz. Solapur, Pune and Osmanabad is suffering from

vices of excessiveness. Perusal of the proposal dated 7 th June,

2014 by the Police Inspector, South Akkalkaot Police Station,

Solapur acting upon which the externment proceedings

against the petitioner came to be initiated goes to show that

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in all five offences against the petitioner were registered at

South Akkalkot Police Station, Solapur. One amongst them

came to be registered in the year 2009 whereas the rest of

the offences came to be registered against the petitioner in

the year 2013. The proposal for externment of the petitioner

shows that the alleged activities of the petitioner were

confined to the territorial jurisdiction of South Akkalkot Police

Station, Solapur.

8.

The order of the Sub-Divisional Magistrate passed

under section 56 of the Maharashtra Police Act, 1951 goes to

show that out of the five crimes registered against the

petitioner, in one case, he was convicted, whereas, two of

them are pending in the Court. The other two crimes were

under investigation by the police. As stated earlier, all these

criminal cases were arising out of offence registered at South

Akkalkot Police Station, Solapur. Perusal of the order passed

by the learned Sub-Divisional Magistrate so also the impugned

order passed by the learned Divisional Commissioner

confirming the said order externing the petitioner from

Solapur, Pune and Osmanabad Districts makes it clear that no

reasons are assigned by the authorities for externing the

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petitioner from the territorial limits of three Districts

particularly when the alleged prejudicial activities of the

petitioner are confined to territorial limits of South Akkalkot

police station, Solapur. The learned Division Commissioner

has not assigned any reasons or recorded his subjective

satisfaction for externment of the petitioner from the three

Districts viz. Solapur, Pune and Osmanabad. On the contrary,

last but one para of the order of externment passed by the

Sub-Divisional Magistrate reflect the opinion of the said

authority that the petitioner needs to be externed from

Solapur District only for a period of one year. However,

ultimately the externing authority as well as the appellate

authority decided to extern the petition from three Districts

without application of mind to the relevant facts. As such, it is

crystal clear that the impugned order of externing the

petitioner from three Districts is excessive order.

9. At this juncture, it is pertinent to quote the

Shri Umar

Mohmmed Malbari V/s. K.P. Gaikwad and Another relied

upon by the learned counsel for the petitioner. paragraphs 7

and 8 of the said judgment read thus :-

1 1988 (2) Bom.C.R. 724

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"7. In our judgment, there is considerable merit in

the contention of Shri Mohite and the same will have to be accepted. 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 struck down because no greater restraint on personal liberty can be

permitted within than is reasonable in the circumstances of the case. In the case of Balu Shivling Dombe V. The

Divisional Magistrate, reported in 71 Bom.L.R. at page 79 which case was cited with approval in the case of Pandharinath Shridhar Rangnekar v. Dy. Commissioner

of Police, on the facts of that case the externment order

was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of

Pandharpur and yet the externment order covered an area as extensive as the districts of Sholapur, Satara, and Poona. These areas were far widely removed from

the locality in which the externee had committed his illegal acts. The exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the purpose of the externment was quashed.

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8. Shri Khothari, the learned Public Prosecutor however, contended that the entire order of externment was not

liable to be struck down merely because it covered areas which were excessive than what was justified. This

would be a case where appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. In our judgment, there is

no merit in the aforesaid contention of Shri Kothari. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial Tribunal against which it

is acting to transmit its record to the Court and if

necessary to quash the order which the Tribunal has passed. It must not be forgotten that in issuing the writ

this Court is not acting as a Court of appeal. It is exercising supervisory powers conferred upon it, and those powers are exercised by means of issuing high

prerogative writs. But the power and jurisdiction of the Court is limited and the same cannot extend to the

powers of an Appellate Court. This Court is only concerned with the question as to whether the Tribunal

exercising judicial or quasi judicial functions 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. Mohamed Usman v. Labour Appellate Tribunal, LIV Bom.L.R. at

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Page 513."

10. In the background of the aforesaid discussions and

upon perusal of the facts of the instant case, it is clear that

the impugned order of externment of the petitioner from the

three Districts is excessive and the same deserves to be

quashed and set aside. Hence the order.

(i) The impugned order dated 22nd December, 2015 passed

by the Divisional Commissioner, Pune Division, Pune in

Appeal No.AR/EA-102/2015 dismissing the appeal filed by

the petitioner is hereby quashed and set aside. The

appeal stands allowed and consequently the order dated

31st August, 2015 passed by the Sub-Divisional

Magistrate, Solapur No.2, Solapur in exterment

proceedings No.MAG/SR/06/2015 externing the petitioner

from Solapur, Pune and Osmanabad Districts for a period

of one year is quashed and set aside.

(ii) Rule is made absolute in terms of prayer clause (b).

             (A.M. BADAR, J.)                          (NARESH H.PATIL, J.)