Bombay High Court
Ganesh S/O Sanjay Kolpe vs The Divisional Commissioner, ... on 5 April, 2017
Bench: S.V. Gangapurwala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 385 OF 2017
Ganesh s/o Sanjay Kolpe,
Age : 24 years, occu. Agri.,
R/o Kolpewadi, Tq. Kopargaon,
District Ahmednagar, at present
r/o C/o Mayur Ramesh Khade,
Jachakmala, Jaibhawani Road,
Nashik PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik
2. The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Taluka Rahata, Dist. Ahmednagar RESPONDENTS
AND
CRIMINAL WRIT PETITION NO. 386 OF 2017
Yogesh s/o Sanjay Kolpe,
Age : 26 years, occu. Agri.,
R/o Kolpewadi, Tq. Kopargaon,
District Ahmednagar, at present
r/o C/o Mayur Ramesh Khade,
Jachakmala, Jaibhawani Road,
Nashik PETITIONER
VERSUS
1. The Divisional Commissioner,
Nashik Division, Nashik
2. The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Taluka Rahata, Dist. Ahmednagar RESPONDENTS
----
Mr. S.T. Shelke, Advocate for the Petitioners
Mr. S.B. Yawalkar, A.P.P. for the respondents/State
----
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CORAM : S.V. GANGAPURWALA AND
SANGITRAO S. PATIL, JJ.
DATE : 5th APRIL, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule, returnable forthwith. With the consent
of the learned counsel for the petitioners and the
learned A.P.P., heard finally.
2. Common questions of law and facts are involved
in these writ petitions. Hence, they are being decided
by this common judgment.
3. The petitioners, who are the real brothers,
have challenged the vires of the externment orders dated
26th October, 2016, passed against them by respondent
No.2 - Sub-Divisional Magistrate, Shirdi and confirmed
by respondent No.1 - Divisional Commissioner, Nasik vide
orders dated 17th February, 2017 and 22nd February, 2017,
respectively.
4. The learned counsel for the petitioners subits
that the impugned orders of externment have been passed
without application of mind. There was no sufficient
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material against the petitioners so as to pass such
orders against them. He further submits that the
impugned orders whereby the petitioners have been
externed for a period of two years from the local limits
of Tahsils Kopargaon, Rahata, Shrirampur and Sangamner
of Ahmednagar district, Yeola, Sinner and Niphad Tahsils
of Nasik district and Vaijapur Tahsil of Aurangabad
district, are exfacie excessive and uncalled for, in
view of the fact that only two crimes have been
registered against the petitioner - Ganesh in Police
Station, Kopargaon and five crimes have been registered
against the petitioner - Yogesh in the same Police
Station. He submits that there is nothing on record to
show that the petitioners indulged in criminal
activities in the other Tahsils, referred to above. He
submits that in none of the crimes registered against
the petitioners in Kopargaon Tahsil, they have been
convicted. He, therefore, submits that the impugned
orders are not at all sustainable.
5. On the other hand, the learned A.P.P. supports
the impugned orders on the say that the petitioners are
involved in illegal excavation and transportation of
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sand from the bank of river Godawari which flows from
the above referred Tahsils of Ahmednagar, Nasik and
Aurangabad districts. He submits that considering the
crimes registered against the petitioners and their
criminal activities having the effect of creating terror
in the locality, on the basis of subjective satisfaction
of respondent Nos.1 and 2, they have been rightly
externed as per the impugned orders.
6. So far as the petitioner - Ganesh is concerned,
he was accused No.6 in Regular Criminal Case No. 253 of
2015, registered on the basis of Crime No. 37 of 2015 in
Police Station, Kopargaon for the offence punishable
under Section 379 read with 34 of the Indian Penal Code
("IPC", for short). He has been acquitted alongwith
other 27 accused persons in that criminal case as per
the judgment and order dated 21st December, 2016. The
learned counsel for the petitioner - Ganesh has produced
a copy of the FIR in Crime No. 15/2015 wherein the name
of the petitioner is not specifically mentioned.
7. So far as the petitioner - Yogesh is concerned,
four crimes are said to have been registered against him
in Police Station, Kopargaon. Besides that, one chapter
5 criwp385-386-2017
case under section 107 of the Code of Criminal Procedure
also has been initiated against him. On the basis of
three crimes, three criminal cases have been instituted
against him, which are still pending. Crime No. 42 of
2016 was at the stage of investigation when the impugned
order of externment was passed. No crime has been
registered against him except in Kopargaon Tahsil.
There is nothing on record to show that any specific
incident of violence has been reported even by any in-
camera witness from any other Tahsil than Kopargaon.
8. Even if it is accepted for a while that the
petitioners indulged in some criminal activities in
Tahsil Kopargaon, there was absolutely no reason to
extern them from other Tahsils than Kopargaon. The
impugned orders do not contain any justifiable reason to
ban entry to the petitioners in other seven Tahsils of
three districts. The impugned orders of externment are
exfacie harsh and excessive. In the circumstances, in
view of the judgment in the case of Rameshkumar @ Ramu
Singh s/o Shriram Singh Thakur Vs. State of Maharashtra
and another 2013 (10) LJSOFT 15, the impugned orders of
externment would be unsustainable in law. The impugned
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orders, therefore, are liable to be quashed and set
aside. In the result, we pass the following order:-
9. The Criminal Writ Petitions are allowed. The
impugned orders of externment, passed against the
petitioners by respondent No.2 - Sub-Divisional
Magistrate, Shirdi and confirmed by respondent No. 1 -
Divisional Commissioner, are quashed and set aside.
Rule is made absolute in the above terms.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.V. GANGAPURWALA]
JUDGE JUDGE
npj/criwp385-386-2017
