Bombay High Court
Javed Kha Dilawar Kha Pathan vs The State Of Maharashtra, ... on 21 December, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION Nos. 23 with 597, 39, 285, 474, 490, 491,
586, 718, 763, 764, 779, 784, 796, 809, 829, 831, 833, 886 OF 2016 &
CRIMINAL APPLICATION (APL) NOs. 214 & 714 OF 2016.
...........................
1] CRIMINAL WRIT PETITION No. 23 OF 2016.
Pappu @ Akhilesh Shivshankar
Mishra, Aged about 32 years,
Occupation - Business, resident of
Krishna Nagar, Police Station,
Gittikhadan, Nagpur. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through Secretary, Home Department,
Mantralaya, Mumbai - 32.
2. Deputy Commissioner of Police,
Zone-2, Nagpur City, Nagpur. ....RESPONDENTS
.
WITH
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2] CRIMINAL WRIT PETITION No. 597 OF 2016.
Mr. Dhiraj s/o Arun Bamborde,
Aged about 27 years,
Occupation - Private, resident of
c/o. Dinesh Yadav, Sawange Meghe,
District Wardha. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through its Secretary, Department of Home,
Mantralaya, Mumbai - 32.
2. The Deputy Commissioner of Police,
Zone-2, Nagpur City, Nagpur.
3. The Assistant Commissioner
of Police, Sitabuldi Division,
Nagpur City, Nagpur. ....RESPONDENTS
.
WITH
3] CRIMINAL WRIT PETITION No. 39 OF 2016.
Mr. Amol s/o Suresh Mehar
Aged about 28 years,
Occupation - Private, resident of
c/o. Amol Bobade, Babulgaon (Bobade)
Tahsil Pulgaon, District Wardha. ....PETITIONER.
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VERSUS
1. The State of Maharashtra
through its Secretary, Department of Home,
Mantralaya, Mumbai - 32.
2. Deputy Commissioner of Police,
Zone-4, Nagpur City, Nagpur.
3. Assistant Commissioner of Police,
Ajni Division, Nagpur City,
Nagpur. ....RESPONDENTS
.
WITH
4] CRIMINAL WRIT PETITION No. 285 OF 2016.
Sandeep @ Sushil s/o Rooplal Samudre
Aged about 30 years,
Occupation - Service (Safai kamgar),
r/o. Near Jagnade Samaj Temple,
Itwaripeth, Umred District Nagpur. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through Sub Divisional Magistrate,
Umred, District Nagpur.
2. The State of Maharashtra,
through P.S.O., Umred,
District Nagpur. ....RESPONDENTS
.
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WITH
5] CRIMINAL WRIT PETITION No. 474 OF 2016.
Ashok s/o Mohanlal Parsoya (Rai)
Aged about 35 years,
Occupation - Agriculturist, resident of
Kiran Factory, Pandharkawada
Tahsil Kelapur, District Yavatmal. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through its Secretary, Department of Home,
Mantralaya, Mumbai.
2. The Assistant Collector and
Sub Divisional Police Officer,
Kelapur (Pandharkawada)
District Yavatmal.
3. The Police Station Officer,
Police Station, Pandharkawada,
Tah. Kelapur, District Yavatmal. ....RESPONDENTS
.
WITH
6] CRIMINAL WRIT PETITION No. 490 OF 2016.
Pramod Ramdas Wanare
Aged about 35 years,
Occupation - Agriculturist / Business,
r/o. Gajanan Nagar, Akot,
District Akola. ....PETITIONER.
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VERSUS
1. State of Maharashtra
through Sub Divisional Magistrate,
and Sub Divisional Officer,
Akot, District Akola M.S.
2. The Superintendent of Police,
Akola, District Akola.
3. Sub Divisional Police Officer,
Akot, Tq. Akot, District Akola.
4. State of Maharashtra
through P.S.O., P.S. Akot,
Distt. Akola. ....RESPONDENTS
.
WITH
7] CRIMINAL WRIT PETITION No. 491 OF 2016.
Syed Rizwan s/o Syed Rafique
Aged about 19 years,
Occupation - student, resident of
Aathawdi Bazar, Dattapur,
Tq. Dhamangaon, District Amravati. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through Superintendent of Police,
Amravati Rural, Office at Camp
Amravati.
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2. The Police Station Officer,
Police Station, Dattapur,
Tq. Dhamangaon Railway,
District Amravati. ....RESPONDENTS
.
WITH
8] CRIMINAL WRIT PETITION No. 586 OF 2016.
Akash s/o Kedar Yadav
Aged about 24 years,
r/o. Saket Nagar, Police Station Ajni
Nagpur. ....PETITIONER.
VERSUS
1. Deputy Commissioner of Police,
Zone-4, Nagpur City, Nagpur.
2. The Divisional Commissioner,
Nagpur Division, Nagpur.
3. The State of Maharashtra
through Police Station Officer,
Police Station, Ajni,
Nagpur. ....RESPONDENTS
.
WITH
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9] CRIMINAL WRIT PETITION No. 718 OF 2016.
Mohd Salim Mohd Ismail
Aged about 38 years,
Occupation - Private,
r/o. Karanja Lad, District Washim,
Presently Khandwa, Madhya Pradesh. ....PETITIONER.
VERSUS
1. State of Maharashtra
through Sub Divisional Magistrate,
Karanja, District Washim.
2. Sub Divisional Police Officer,
Karanja Lad, District Washim.
3. The Police Station Officer,
Police Station, Karanja Lad,
Distt. Washim. ....RESPONDENTS
.
WITH
10] CRIMINAL WRIT PETITION No. 763 OF 2016.
Sandip s/o Ashruji Iratkar
Aged about 28 years,
Occupation - Labour,
r/o. Mali Galli, Risod, Tahsil Risod,
District Washim. ....PETITIONER.
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VERSUS
1. State of Maharashtra
through Secretary, Home Ministry,
Mantralaya, Mumbai - 32.
2. Sub Divisional Magistrate,
Sub Division Risod, District Washim.
3. The Sub Divisional Police Officer,
Sub Division, Washim. ....RESPONDENTS
.
WITH
11] CRIMINAL WRIT PETITION No. 764 OF 2016.
Ishwar s/o madan Bariyekar
Aged about 31 years,
Occupation - Labour,
r/o. Sant Ravidas Ward, Tirora,
Tah. Tirora, District Gondia. ....PETITIONER.
VERSUS
1. State of Maharashtra
through its Secretary,
Home Department, Mantralaya,
Mumbai 400 032.
2. Divisional Commissioner,
Nagpur Division, Old Secretariat,
Building, Civil Lines, Nagpur.
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3. Sub Divisional Magistrate,
Office at Near Tahsil Office, Tirora
Tah. Tirora, District Gondia
4. Police Station Officer,
Police Station, Tirora, Tah. Tirora,
District Gondia. ....RESPONDENTS
.
WITH
12] CRIMINAL WRIT PETITION No. 779 OF 2016.
Ganesh Ramlakhansingh Bais (Thakur)
Age 38 years, Occupation - Sarpanch,
r/o. Kasakheda, Tah. Arvi,
Wardha. ....PETITIONER.
VERSUS
1. State of Maharashtra
through Secretary,
Department of Home, Mantralaya
Madam Cama Road,
Mumbai - 400032.
2. Superintendent of Police,
District Wardha.
3. Sub Divisional Police Officer,
Tah. Arvi, District Wardha.
4. Police Station Officer,
Police Station, Kharangana,
Tah. Arvi, Distt. Wardha. ....RESPONDENTS
.
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WITH
13] CRIMINAL WRIT PETITION No. 784 OF 2016.
Shubham s/o Vasantrao Ganjre
Age 20 years, Occupation - Driver,
r/o. Kasarkheda (Savad)
Tal. Arvi, District Wardha.
ig ....PETITIONER.
VERSUS
1. State of Maharashtra
through Secretarty,
Department of Home, Mantralaya,
Madam Cama Road,
Mumbai - 400032.
2. Superintendent of Police,
District Wardha.
3. Sub Divisional Police Officer,
Tah. Arvi, District Wardha.
4. Police Station Officer,
Police Station, Kharangana,
Tah. Arvi, District Wardha. ....RESPONDENTS
.
WITH
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14] CRIMINAL WRIT PETITION No. 796 OF 2016.
Mohammad Washim s/o Mohammad Kalim
Aged about 34 years,
r/o. IBM Road, Bhimtekadi,
Police Station, Gittikhadan,
Nagpur. ....PETITIONER.
VERSUS
1. Deputy Commissioner of Police,
Zone-2, Nagpur City, Nagpur.
2. Assistant Commissioner of Police,
Sadar Division, Nagpur City,
Nagpur.
3. The Divisional Commissioner
Nagpur Division, Nagpur.
4. The State of Maharashtra
through Police Station Officer,
Police Station, Gittikhadan, Nagpur. ....RESPONDENTS
.
WITH
15] CRIMINAL WRIT PETITION No. 809 OF 2016.
Javed Kha Dilawar Kha Pathan
Aged about 47 years,
Occupation - Business,
r/o. Malegaon, District Washim. ....PETITIONER.
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VERSUS
1. State of Maharashtra
Ministry of Home, through its
Secretary, Mantralaya,
Mumbai - 32.
2. Sub Divisional Magistrate,
Malegaon, District Washim. ....RESPONDENTS
.
ig WITH
16] CRIMINAL WRIT PETITION No. 829 OF 2016.
Shri Arjun s/o Janrao Ingole
Aged about 28 years,
Occupation - Labour
r/o. C/o. Gajanan Natekar,
Athawadi Bazar, Khamgaon,
Tq. Khamgaon, District Buldhana. ....PETITIONER.
VERSUS
1. Deputy Commissioner of Police,
Zone-II, Amravati City,
Amravati.
2. Assistant Commissioner of Police,
Rajapeth Division, Amravati.
3. Police Station Officer, Police
Station, Kholapuri Gate,
Amravati City, Amravati. ....RESPONDENTS
.
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WITH
17] CRIMINAL WRIT PETITION No. 831 OF 2016.
Rajesh @ Khanna s/o Prabhu Barve
Aged Adult, Occupation - Nil
r/o. Tilak Ward, Tiroda, Tah. Tiroda,
District Gondia. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Home Department, Mantralaya
Mumbai - 32.
2. The District Superintendent of Police,
Gondia, District Gondia.
3. Police Station Officer, Police Station,
Tiroda, Tah. Tiroda, District Gondia.
4. Sub Divisional Magistrate,
Tiroda, Tah. Tiroda,
District Gondia. ....RESPONDENTS
.
WITH
18] CRIMINAL WRIT PETITION No. 833 OF 2016.
Firoz Khan Gulam Mushtafa Khan
Aged 52 years, Occupation - Agriculturist
r/o. Indla, Mardi Road, Tah. And
District Amravti.
At present residing at Nagpur. ....PETITIONER.
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VERSUS
1. State of Maharashtra
through Deputy Commissioner of Police,
Zone-I, Amravati.
2. Assistant Commissioner of Police,
Division - Frezarpura,
District Amravati. ....RESPONDENTS
.
WITH
19] CRIMINAL WRIT PETITION No. 886 OF 2016.
Rajkumar @ Baba Shamrao Pawar
Aged about 23 years,
Occupation - Private
r/o. Athawadi Bazar, Yavatmal,
presently c/o. Sanjay Bandu Pawar,
Quarter No.134, MALA Colony
MIDC Buti Bori, Nagpur. ....PETITIONER.
VERSUS
1. State of Maharashtra
Sub Divisional Magistrate,
Yavatmal.
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2. Sub Divisional Police Officer,
Yavatmal, District Yavatmal.
3. The Police Station Officer, Police
Station, Wadgaon Road,
Yavatmal. ....RESPONDENTS
.
WITH
20] CRIMINAL APPLICATION (APL) No. 214 OF 2016.
Mr. Kunal @ Goldy s/o Sheshrao Akkalwar
Aged about 32 years,
Occupation - Business
r/o. C/o. Ramesh Vinayak Jiddewar,
Ran Nagar, Bhagyodaya Society,
Yavatmal. ....PETITIONER.
VERSUS
1. Deputy Commissioner of Police,
Zone-II, Nagpur.
2. Assistant Commissioner of Police,
Sadar Division, Nagpur. ....RESPONDENTS
.
WITH
21] CRIMINAL APPLICATION (APL) No. 714 OF 2016.
Mr. Chandu s/o Pundlikrao Aathwale
Age 31 years,Occupation - Labour
Presently r/o. C/o. Digambar Sardar,
Malegaon (Shirsuli)
Tq. Karajna, District Washim. ....PETITIONER.
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VERSUS
1. State of Maharashtra
through its Secretary,
Department of Home,
Mantralaya, Mumbai - 32.
2. Deputy Commissioner of Police,
Zone-2, Amravati City,
Amravati.
3. Assistant Commissioner of Police,
Rajapeth Division, Amravati. ....RESPONDENTS
.
-----------------------------------
S/Shri R.M. Patwardhan, R.R. Vyas, Mir Nagman Ali, S.V. Sirpurkar, D.U.
Thakare, T.U. Tathod, S.S. Shinde, P.R. Agrawal, M.V. Rai, P.V. Navlani,
A.B. Mirza, I.N. Choudhari and M.P. Kariya, Advocates for Petitioners.
Mrs. B.H. Dangre, P.P. with Shri V.A. Thakare, Mrs. M.H. Deshmukh, Shri
M.J. Khan, Shri T.A. Mirza, Shri R.S. Nayak, Shri S.S. Doifode, Shri A.D.
Sonak and Mrs. K.S. Joshi, APP for Respondents.
------------------------------------
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN , JJ.
Date of Reserving the Judgment : 01.12.2016.
Date of Pronouncement : 21.12.2016.
JUDGMENT. (Per B.P. Dharmadhikari, J)
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In all these matters orders of externment passed under Section 56
of the Maharashtra Police Act, 1951 (hereinafter referred to as "the 1951
Act" for short), are questioned. Only in two matters i.e. Criminal Writ
Petition Nos. 779 and 784 of 2016 orders of externment are under Section
55 of the 1951 Act.
2. In all these matters one of the contentions canvassed by the
learned counsel for petitioners is, common. Petitioners state that they have
been externed out of large area or at times from several districts when the
alleged activities (offences) are restricted to only one police station. By
placing reliance upon various judgments they urge that the selection of area
from which a person is to be externed, calls for application of mind to the
relevant factors. Effort of the respondents is to persuade us to take other
view of the matter. As there are several judgments of this Court accepting
this contention, at the request of learned Public Prosecutor, we have taken
up all matters together so as to find out what is the correct position in law.
Learned A.P.P. has relied upon the judgments of the Hon'ble Supreme Court
to urge that when areas from which externment is ordered are intimately
connected with each other, geographical jurisdiction of any particular police
station ceases to be a relevant factor..
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3. It is in this background, that we have heard the respective counsel
only on the question of determination of extent of area from which the
respective petitioner has been ousted.
4. S/Shri R.M. Patwardhan, R.R. Vyas, Mir Nagman Ali, S.V.
Sirpurkar, D.U. Thakare, T.U. Tathod, S.S. Shinde, P.R. Agrawal, M.V. Rai,
P.V. Navlani, A.B. Mirza, I.N. Choudhari and M.P. Kariya, learned Counsel
have supported the non-permissibility of externment from larger area and
bearing of the need of externment with area out of which the externment
is ordered.
5. Mrs. B.H. Dangre, learned Public Prosecutor with Shri V.A.
Thakare, Mrs. M.H. Deshmukh, Shri M.J. Khan, Shri T.A. Mirza, Shri R.S.
Nayak, Shri S.S. Doifode, Shri A.D. Sonak and Mrs. K.S. Joshi, APP for
Respondents in respective criminal writ petitions/ criminal applications have
defended the action. Learned Public Prosecutor/ Additional Public
Prosecutors appearing for the respondent State Government have stated that
in few matters where orders are found to be excessive i.e. externment is
from larger area without demonstrating any application of mind,
respondents have sought leave to withdraw the orders and to pass fresh one.
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6. Petitioners urge that externment of a person is violation of his
fundamental right guaranteed under Article 19[1] read with Article 21 of
the Constitution of India, and therefore, while selecting area from which a
person is to be ousted, there has to be a proper consideration of relevant
factors. They oppose leave sought by the respondents to pass fresh orders,
as according to them once non application of mind is demonstrated, order of
externment must fall to ground and passing of fresh orders has to be in
accordance with law i.e. with reference to appropriate material becoming
available thereafter possessing live link with the externment. They submit
that in writ jurisdiction, there cannot be any remand as writ jurisdiction is
essentially different from Appellate Jurisdiction. They have relied upon
various judgments reported and unreported to which we may make
reference at appropriate juncture.
7. Learned Public Prosecutor has invited our attention to the
legislative developments to urge that law laid down by this Court prior to
1981 is not relevant for consideration of the present controversy. In 1981,
provisions of Section 56[1] have been amended and the competent authority
is permitted to order externment, not only from his local limits of
jurisdiction, but, from other area also, whether such other area is contagious
Judgment wp23.16
or not. Our attention is invited to statement of object and reasons to
Maharashtra Amendment Act No. 8 of 1981 to substantiate said contention.
Various judgments are also relied upon to submit that this Court has taken
judicial note of the adjacent/larger areas being intimately connected with
the area in which an externee operates. It is submitted that ousting of a
person from area of one police station, and permitting him to stay in vicinity
in jurisdiction of other police station within the same city, will defeat the
object of the externment order. Judgment of Constitution Bench reported at
AIR 1952 SC 221 (Gurbachan Singh .vrs. State of Bombay), is pressed
into service to show that the constitutional validity of said provision has
been upheld by the Hon'ble Supreme Court. He has strongly relied upon the
judgment of Hon'ble Supreme Court reported at AIR 1973 SC 630
(Pandharinath Shridhar Rangnekar .vrs. Dy. Commissioner of Police).
Again we will refer to these judgments at appropriate juncture.
8. As limited controversy is to be looked into, perusal of other
specific grounds raised by the petitioners to assail the orders is not
necessary. The office of the Public Prosecutor has prepared a case wise
Chart pointing out the area of activity of a particular petitioner and area
from which he is externed. Data there in is verified by the respective learned
counsel appearing for the petitioners and found to be correct. We reproduce
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that chart below for ready reference.
Sr.No. Case No. Name
of Area of Activity Area and
Petitioner. period of
Externment.
1. Criminal Writ Pappu @ Akhilesh Police Station, City &Rural
Petition Mishra Gittikhadan. Nagpur.
No.23/2016. 2 years.
2. Criminal Writ Dhiraj Arun Police Station, Nagpur City .
Petition Bamborde Ambazari. 1 year.
No.597/2016
3. Criminal Writ Amol Meher Police Station, City &Rural
Petition
No.39/2016.
ig Gittikhadan,
Ajni
Nagpur.
and 2 years.
Sonegaon.
4. Criminal Writ Sandip Samudre Police Station, Nagpur City
Petition Umred. &Rural,
No.285/2016 Wardha,
Chandrapur
and
Bhandara. 2
years.
5. Criminal Writ Ashok Roy Parsoya. Police Station, Yavatmal,
Petition Pandharkawada. Chandrapur,
No.474/2016 Wardha,
Amravati and
Nanded.
1 year.
6. Criminal Writ Pramod Wanare. Police Station, Akola District.
Petition Akot. 2 years.
No.490/2016
7. Criminal Writ Sayyad Rizwan Police Station, Amravati
Petition Sayyad Dattapur. District,
No.491/2016 Yavatmal,
Washim and
Wardha.
2 years.
8. Criminal Writ Akash Yadav Police Station, Nagpur City
Petition Ajni. &Rural.
No.586/2016 2 years.
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9. Criminal Writ Mohd. Salim Mohd. Police Station, Akola,
Petition Ismile Karanja City. Buldhana,
No.718/2016 Yavatmal,
Amravati and
Washim.
2 years.
10. Criminal Writ Sandip Iratkar Police Station, Washim,
Petition Risod. Akola,
No.763/2016 Buldhana,
Hingoli,
Amravati and
Yavatmal.
3 months.
11. Criminal Writ Ishwar Bariyekar
ig Police Station, Gondia
Petition Tiroda. District.
No.764/2016 2 years.
12. Criminal Writ Ganesh Bais Police Station, Wardha
Petition Kharangana. district.
No.779/2016 1 year.
13. Criminal Writ Shubham Ganjare Police Station, Wardha
Petition Kharangana. District.
No.784/2016 1 year.
14. Criminal Writ Mohd. Washim Police Station, Nagput City.
Petition Mohd. Kalim Gittikhadan. 2 years.
No.796/2016
15. Criminal Writ Javed Khan Dilawar Police Station, Washim,
Petition Khan Pathan Malegaon. Akola and
No.809/2016 Buldhana.
16. Criminal Writ Arun Ingle Police Station, Amravati City
Petition Kholapuri Gate.. &District.
No.829/2016 1 year.
17. Criminal Writ Rajesh @ Khanna Police Station, Gondia,
Petition Barve Tiroda. Bhandara,
No.831/2016 Gadchiroli,
Chandrapur
and Nagpur.
2 years.
18. Criminal Writ Firoz Khan Gulam Police Station, Amravati City
Petition Mustafa Khan Kotwali and &Rural.
No.833/2016 Frezarpura. 1 year.
19. Criminal Writ Rajkumar @ Baba Police Station, Yavatmal,
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Petition Pawar Wadgaon Road, Wardha,
No.886/2016 Yavatmal City. Washim and
Amravati.
2 Months.
20. Criminal Kunal @ Goldi Police Station Nagpur City
Application Sheshrao Akkalwar Sadar and and Rural.
No. Ambazari. 2 years.
214/2016
21. Criminal Chandu Pundilkrao Police Station, Amravati City
Application Aathwale Kholapuri Gate. &Rural.
No.714/2016 1 year.
9.
Perusal of data given in chart itself shows that the petitioner
Chandu Aathawale in Criminal Application No.714/2016 was already
externed from Amravati District for a period of two years between 2012 to
2014. His area of activity is only one police station. By the impugned order
he has been externed on second occasion only for one year from Amravati
City and Amravati Rural area. Petitioner in Criminal Writ Petition No.
829/2016 (Arjun Ingole) has also very same police station as area of
activity. He has been externed from Amravati City and Rural area also for
one year.
10. In the externment order passed against petitioner - Chandu for 8
offences, he was externed for a period from 11.09.2012 to 10.09.2014.
Impugned order mentions that he violated that order and committed three
offences when that order was in force. After expiry of period of externment
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in said order, he has committed offence on 02.05.2015. Restraining /
Preventive action taken against him is on two occasions, after expiry of
earlier externment order.
11. Petitioner - Arjun in Criminal Writ Petition No. 829/2016 is
externed by the order dated 19.09.2016. Offences under Indian Penal Code
committed by him are between 2012 to 2014. After last offence dated
03.01.2014, he has committed an offence under Sections 302, 143, 147,
148, 149, 341 and 323 of Indian Penal Code on 17.10.2015. Preventive
action has been taken against him on 13.04.2012 and 09.01.2014. Thus,
very same officer has found it sufficient to extern him for a period of one
year from Amravati City and Amravati Rural area.
12. We do not find it necessary to multiply the instances as
appreciation of various judgments delivered by this Court and its use by the
respective learned Counsel itself shows the aptness behind the request of
learned Public Prosecutor to hear all the matters together.
13. Perusal of judgment in case of Pandharinath Shridhar
Rangnekar .vrs. Dy. Commissioner of Police (supra), reveals that there the
Constitution Bench judgment upholding the validity of pari materia
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provisions i.e. Section 27[1] of the City of Bombay Police Act, 1902 is taken
note of. Appellant Pandharinath, approached Hon'ble Supreme Court
challenging the order of externment. He had earlier approached High Court
under Articles 226 and 227 of the Constitution of India. One of his
contentions was that his illegal activities, as alleged, were confined to
specific localities within the jurisdiction of Vile Parle Police Station, and
therefore, order asking him to remove himself from the limits of districts of
Greater Bombay and Thane was excessive and unreasonable. The Division
Bench of High Court upheld the order. Hon'ble Supreme Court in paragraph
no.15 of the judgment holds that it is primarily for the externing authority to
decide how best the externment order can be made effective. It depends
upon nature of data collected by that authority and no general propositions
that such an order always should be restricted to areas of illegal activities
can be made. A larger area may be required to be stipulated in externment
order to isolate externee from his moorings. The decision of Bombay High
Court reported at AIR 1969 Bom. 351 (Balu Shivling Dombe .vrs.
Divisional Magistrate, Pandharpur) relied upon by the petitioner is looked
into in its paragraph no.16, and the Hon'ble Apex Court finds that in the said
matter, activities of externee were confined to city of Pandharpur, but, the
area of externment covered districts of Solapur, Satara and Pune, which
were widely removed from the said locality. It found that in the matter
Judgment wp23.16
before it, if order of externment was to be restricted to Vile Parle Police
Station only and its periphery, that order would not serve its purpose. It is
observed that rather than solving the problem of law and order, it would
create one more problem. In paragraph no.18, un-reported Division Bench
judgment of Bombay High Court ordering externment from adjacent area
because those areas were connected by several means of communication,
including suburban trains, has been referred to. The fact that Special Leave
Petition No.487/1972 preferred against the said order of the High Court was
dismissed by the Hon'ble Supreme Court is taken note of in paragraph no.19.
Discussion in paragraph no.20 shows that the very object of the externment
would be defeated, if it was not made cumbersome for externee to return to
the field of his activities. Greater Bombay and Thane Districts are found to
be intimately connected. The Hon'ble Supreme Court says that in matters of
local colour and conditions, the view so consistently expressed by the
learned Judges of the High Court needed to be accepted as correct.
14. In 2005 [3] Mh.L.J. 463 (Gafoor Dastagir Sheikh .vrs. State of
Maharashtra), the learned single Judge of this Court has upheld the order
of externment from City of Mumbai, Mumbai Suburban, Thane and Raigadh
Districts for a period of two years. The above mentioned judgment of
Hon'ble Supreme Court in case of Pandharinath (supra), along with other
Judgment wp23.16
judgments are looked into, while accepting the externment. Thus there is
already a finding by the Hon. Apex Court that these areas being intimately
connected, may constitute one zone out of which externment may be
warranted.
15. In 2014 All MR (Cri) 443 (Imtiyaz Afzal Hussain Shaikh .vrs.
Asstt. Commissioner of Police and others), the Division Bench of this
Court has found that the areas from which externment was ordered i.e. Pune
city and Pune district, were in intimately connected. The discussion in
paragraph no.11 shows that the law laid down by the Hon'ble Supreme
Court in the case of Pandharinath (supra), continues to bind the High Court.
16. This Court in 2014 All MR (Cri) 2181 (Satish Sagun
Korgaonkar .vrs. The State of Maharashtra) has considered the order of
externment from area of Greater Mumbai, Thane and Raigadh for a period
of two years. It has looked into the judgment of Hon'ble Supreme Court in
case of Pandharinath (supra) and other judgments. In paragraph no.24, it
has found that show cause notice did not proposes externment from Raigadh
district and the order was therefore found to be in violation of principles of
natural justice. Apart from this, facts specific to said case are also looked
into.
Judgment wp23.16
17. In 2014 All MR (Cri) 4537 (Manik Ramchandra Gupta .vrs.
State of Maharashtra), the Division Bench of this Court refers to the
judgment of Hon'ble Supreme Court in Pandharinath (supra), and to
judgment of Division Bench of this Court in case of Balu Dombe (supra). It
has concluded in paragraph no.16 that there was nothing on record to show
that it was necessary to extend the order of externment beyond Thane
District to Brihan Mumbai, Mumbai Suburban, Pune and Nashik districts.
Order was found not containing any application of mind for extending the
area of externment beyond Thane. Division Bench also mentions that in the
impugned order, except for stating the geographical proximity of Thane
district to other districts and the means of transport available between the
districts, objectionable activities of externee in districts of Pune, Nashik,
Brihan Mumbai and Mumbai Suburban were not referred. Thus area selected
was larger than the area already judicially found to be intimately connected.
18. In 1988 Mh.L.J. 1034 (Umar Mohamed Malbari .vrs. K.P.
Gaikwad and another), the Division Bench of this Court has considered the
challenge to an excessive order. In paragraph nos. 7 and 8, it is found that
the areas were not contagious. Activities of petitioner there were restricted
to taluq of Bhivandi, while the petitioner was externed out of Raigadh and
Judgment wp23.16
Nashik districts. The Division Bench has taken note of the fact that these
districts had within them taluq places situated at a distance of more than
100 miles. The impugned order was therefore found excessive. In
paragraph no.8, the Division Bench found that once the order is found to be
excessive, it cannot be read down and restricted only to the area of activities.
The Division Bench has found that it was exercising writ jurisdiction and not
appellate jurisdiction. It therefore, could have examined the question,
whether the authority ordering externment had or had not acted without
jurisdiction or then did act in excess of jurisdiction. It held that there the
power of High Court as writ court stopped. It can not go further and correct
the excessive order passed by the Authority concerned.
19. In 2013 All MR (Cri) 1268 (Mahavir Saremal Jain .vrs. The
State of Maharashtra and others), the Division Bench of this Court has
found the externment order defective, as record did not indicate adequate
and tangible material to support externment of petitioner from multiple
districts.
20. In 2015 SCC Online Bom 6803 (Sayeed firoz Sayeed Noor .vrs.
State of Maharashtra), Division Bench of this Court has applied the same
analogy and found the order of externment excessive. There the externment
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was from city and rural limits while the area of activity was found to be only
one police station. Two writ petitions i.e. one in relation to Nagpur and
other in relation to Amravati have been decided together. Discussion on
what "subjective satisfaction" implies in case of Yakum Ismail Chippa .vrs.
The District Magistrate, reported at (1996) 1 GLR 4, is looked into in this
judgment. One of us (B.P. Dharmadhikari, J) is party to it.
21.
In 2013 (4) Mh.L.J. (Cri) 655 (Sanket Balkrushna Jadhav .vrs.
State of Maharashtra and others), Division Bench of this Court has
quashed and set aside the order of externment from entire Satara district
when the offences were alleged to be only in one police station.
22. In 2016 [1] Mh.L.J. (Cri) 192 (Ravindra @ Ravi Harisingh
Jadhav .vrs. State of Maharashtra and another), externment order from
Jalna and Aurangabad districts when offences were registered in only one
police station, was found excessive.
23. Shri Ali, learned counsel has pointed out identical view taken at
Aurangabad and at Bombay in few other matters.
24. In 2013 All MR (Cri) 122 (Nisar @ Nigro Bashir Ahmed
Khan .vrs. Dy. Commissioner of Police and others), the Division Bench
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has considered the challenge to an order of externment from Bombay city,
Suburban area, New Bombay, Thane and Raigadh districts. Activities of the
externee were confined to Shivaji Nagar Police Station within Greater
Bombay. Judgment of Hon'ble Supreme Court in case of Pandharinath
(supra), and various other judgments of this Court are looked into.
25. Judgment of Hon'ble Supreme Court in case of Pandharinath
(supra), after noticing that the provisions of Section 56 are found to be
constitutionally valid, in paragraph no.10 adds that care must be taken to
ensure that terms of Sections 56 and 59 are strictly complied with and that
the slender safeguards which those provisions offer must be made available
to the externee. If the impugned order amounts to infringement of
fundamental rights guaranteed under Article 19 of the Constitution of India,
it cannot be sustained.
26. It appears that before amendment to Section 56[1] by Act
No.8/1981, externment was possible from local limits of jurisdiction of
respective authority and contagious area. Statement of object and
reasons/SOR of Amendment Act reveals that there was improvement in
transport facilities and means of communications which consequently
reduced efficacy of the provisions. By said amendment, the Authority is now
Judgment wp23.16
empowered to order externment from areas falling not only within the local
limits of its jurisdiction, but, also from other areas, even if such other areas
are not contagious to its jurisdictional area. There is no challenge to this
provision. The amendment therefore gives teeth to the Authority ordering
externment and may effectively check return of the externed person to the
area of his influence. Thus, facts & factors looked into by the Authority for
reaching subjective satisfaction as envisaged under Section 56[1] must be
capable of supporting the need of ordering externment beyond the area of
jurisdiction of such authority. If larger area is being selected, need thereof
must also be evaluated by that authority, and such an evaluation which
constitutes the "application of mind", has to surface in the impugned order.
Externment is a measure which operates against the fundamental right and
therefore, order of externment must be a reasonable order. It has to
demonstrate that externment has been ordered only from the area which is
necessary to give effect to it and not from unnecessarily larger area.
Precedents looked into by us show that this application of mind, qua the
extent of area also constitutes one of the essential ingredients of a test used
to uphold the provisions of externment as a reasonable restriction on
fundamental right of the externee. Various precedents looked into by us
show that where order of externment is found not to contain any material
for ordering externment from a larger area, the same have been quashed
Judgment wp23.16
and set aside.
27. The Hon'ble Supreme Court in case of Pandharinath (supra), has
found that the local colour and condition consistently noted by the learned
Judges of High Court needed to be accepted as correct. In present matters,
no judicial pronouncements holding any City areas/urban area and rural
areas with which we are concerned, to be intimately connected with each
other, has been pressed into service before us. Where more districts than
one are involved, no view taken by any Court that said areas are intimately
connected due to improved or common means of transport, is pointed out.
Impugned order also does not show that these cities/urban and rural areas
are intimately connected or otherwise. The material in the chart reproduced
above, does not show any consistent approach in this respect. The authority
ordering externment has no where mentioned local limits of its jurisdiction.
There is nothing on record to show that it was alive to the fact that it was
ordering externment from adjacent/ contagious areas not ordinarily falling
in its jurisdiction. Need for selecting such additional areas is also not
apparent in any order. In absence of any such application of mind, this
Court in writ jurisdiction cannot for the first time appreciate the need to
extern a person from a larger area. Facts warranting externment from larger
area are absent in the impugned order & are not presented to us in any
Judgment wp23.16
manner by the respondents.
28. The orders of externment are already passed and those orders are
not stayed by this Court. The externee is, therefore, out of the area from
which the externment has been ordered by the respective impugned orders.
Impugned orders show various offences committed by them. But, then, as
there is non application of mind while selecting area of externment, any of
the orders of externment assailed before us, cannot be sustained.
29. We are aware that the petitioners have raised some other grounds
to assail their externment. However, in this view of matter, we cannot
sustain the order of externment only on first ground, which is common in all
matters. Hence, leaving all other contentions open, we quash and set aside
the impugned order of externment. Needless to mention that respondents
are at liberty to pass fresh orders in appropriate cases in accordance with
law, if they find it necessary.
30. Accordingly the order of externment - (1) dated 25.11.2015 in
Writ Petition No. 23/2016 passed by respondent no.2; (2) dated 08.06.2016
in Writ Petition No. 597/2016 passed by respondent no.2; (3) dated
30.11.2015 in Writ Petition No. 39/2016 passed by respondent no.2; (4)
Judgment wp23.16
dated 23.09.2016 in Writ Petition No. 285/2016 passed by respondent no.1;
(5) dated 01.06.2016 in Writ Petition No. 474/2016 passed by respondent
no.2; (6) dated 24.09.2015 in Writ Petition No. 490/2016 passed by
respondent no.1; (7) dated 06.11.2015 in Writ Petition No. 491/2016
passed by respondent no.1; (8) dated 28.07.2015 in Writ Petition
No.586/2016 passed by respondent no.1 and order dated 03.03.2016 passed
by respondent no.2; (9) dated 16.08.2016 in Writ Petition No. 718/2016
passed by respondent no.1; (10) dated 06.09.2016 in Writ Petition No.
763/2016 passed by respondent no.2; (11) dated 20.09.2016 passed by
respondent no.2 and order dated 18.07.2016 passed by respondent no.3 in
Writ Petition No. 764/2016; (12) dated 06.09.2016 in Writ Petition No.
779/2016 passed by respondent no.2; (13) dated 06.09.2016 in Writ
Petition No. 784/2016 passed by respondent no.2; (14) dated 05.04.2016
passed by respondent no.1 and order 20.09.2016 passed by respondent no.3
in Writ Petition No. 796/2016; (15) dated 31.08.2016 in Writ Petition No.
809/2016 passed by respondent no.2; (16) dated 19.09.2016 in Writ
Petition No. 829/2016 passed by respondent no.1; (17) dated 06.09.2016 in
Writ Petition No. 831/2016 passed by respondent no.4; (18) dated
10.10.2016 in Writ Petition No. 833/2016 passed by respondent no.1; (19)
dated 10.11.2016 in Writ Petition No. 886/2016 passed by respondent no.1;
(20) dated 25.11.2015 in Criminal Application No. 214/2016 passed by
Judgment wp23.16
respondent no.1 and (21) dated 30.09.2016 in Criminal Application No.
714/2016 passed by respondent no.2 are quashed and set aside.
31. Criminal Writ Petitions and Criminal Applications are accordingly
allowed. Rule is made absolute in all the matters, in the aforesaid terms
with no order as to costs.
JUDGE JUDGE
Rgd.
