Abdul Rauf Abdul Samad Momin ... vs The State Of Maharashtra
2017 Latest Caselaw 5579 Bom

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                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 805 OF 2017 


          Nikhil Suresh Rajput (Patil)
          Age : 21 years, Occupation - Labour,
          R/o. Datta Nagar, Bhusawal,
          Tq. Bhusawal, Dist. Jalgaon.
                                             PETITIONER

                   -VERSUS-

          1.       The State of Maharashtra,
                   Home Department,
                   Mantralaya, Mumbai - 32.

          2.       The Sub-Divisional Magistrate,
                   Bhusawal Division, Bhusawal,
                   Dist. Jalgaon.

          3.       Sub-Divisional Police Officer,
                   Bhusawal Division,
                   Bhusawal, Dist. Jalgaon.

          4.   The Divisional Commissioner,
               Nashik Division, Nashik.
                                             RESPONDENTS
                                ...
          Mr. B.S. Deshmukh, advocate for Petitioner. 
          Mr. S.B. Pulkundwar, APP for Respondents / 
          State. 
                                ...

                          CORAM:  S.S.SHINDE & 
                                  S.M.GAVHANE,JJ.      

Reserved on : 28.07.2017 Pronounced on : 04.08.2017

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JUDGMENT: (Per S.S.Shinde, J.):

Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

2. This Petition is filed with the

following prayer :-

"B. By allowing this Criminal Writ Petition, the order passed by respondent no.2 i.e. Sub-Divisional Magistrate, Bhusawal, Division Bhusawal, Dist. Jalgaon dated 12/1/2017 in Externment Case No.60/2016 and confirmed in Externment Appeal No.6/2017 vide order dated 30/3/2017 passed by respondent no.4 may kindly be quashed and set aside."

3. The learned counsel appearing for

the petitioner submits that, without

recording subjective satisfaction and reasons

in the externment order, the petitioner is

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externed from two districts i.e. Jalgaon and

Dhule. It is submitted that, offences which

are registered against the petitioner are in

Bazar Peth Police Station at Bhusawal in

Jalgaon district. It is submitted that, even

the alleged prejudicial activities of the

petitioner, as stated in the notice, are in

the vicinity of Bazar Peth Police Station,

Bhusawal. Therefore, the learned counsel

appearing for the petitioner submits that,

are excessive, inasmuch as, the petitioner is

externed from Jalgaon and Dhule districts. In

addition to this, the learned counsel

appearing for the petitioner submits that,

the offence bearing Crime no.102/2011 came to

be registered against the petitioner with

Bazar Peth Police Station, Bhusawal,

Dist.Jalgaon and he has been acquitted in the

said offence even before issuance of notice

and the said fact has not been considered by

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the respondent nos.2 and 4 while externing

the petitioner from two districts.

4. Learned A.P.P. appearing for the

respondent/State, relying upon the averments

made in the affidavit in reply and reasons

recorded in the impugned orders of externment

passed by Respondent nos. 2 and 4, submits

that, the externment orders are in conformity

with the material placed on record and also

within the fore corners of the provisions of

Sections 56 and 59 of the Maharashtra Police

Act, 1951, therefore, this Court may not

interfere in the impugned order.

5. We have given careful consideration

to the submissions of the learned counsel

appearing for the petitioner and the learned

A.P.P. appearing for the respondent/State. We

have also perused the original record made

available by the learned A.P.P. for perusal

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of this Court and orders impugned in this

Petition.

6. Upon careful perusal of the orders

passed by Respondent Nos.2 and 4, it appears

that, the externment orders are excessive,

inasmuch as the petitioner's alleged

prejudicial activities are confined to Bazar

Peth Police Station, Bhusawal in Jalgaon

district, however, the petitioner is externed

from Dhule district also, we are confining

our adjudication to the aforesaid ground

alone.

7. Upon careful reading of the original

record and also the impugned orders, so far

alleged prejudicial activities of the

petitioner are concerned, the same are

described in Bazar Peth Police Station,

Bhusawal in Jalgaon district, there is no

discussion or subjective satisfaction

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disclosed in the impugned orders, why the

externment of the petitioner from Dhule

district is necessary. Upon careful reading

of the impugned orders, it appears that, the

offences registered against the petitioner

are at Bazar Peth Police Station located at

Bhusawal Taluka, Dist. Jalgaon. Therefore, it

is crystal clear that, the Sub-Divisional

Magistrate, Bhusawal Division, Bhusawal has

not assigned any reasons or recorded the

subjective satisfaction about the externment

of the petitioner from Dhule district.

8. The point raised in this Petition is

no longer res integra and covered by the

exposition of law by this Court in the case

of Nisar @ Nigro Bashir Ahmed Khan V/s Dy.

Commissioner of Police & ors reported in

2013(3) Bom.C.R.(Cri.) 566. The paragraph

nos. 9 to 11 of the said judgment read as

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under :-

"9. The point raised by the learned Counsel for the Petitioner that the externment order is excessive, in as much as, the alleged activities against the Petitioner, which are alleged in the show cause notice are confined to the jurisdiction of the Shivaji Nagar Police Station and within the area of Greater Bombay, therefore, externment of the Petitioner from aforesaid other three Districts is excessive, is no more res integra and is covered by the authoritative pronouncements of the Hon'ble Supreme Court as well as by this Court. The Hon'ble Supreme Court in the case of (Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra), reported in 1973 Mh.L.J. 413, in Paragraph 16, held as under :

"16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision of the Bombay High Court in (Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur) 1969 Mh.L.J. 387

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is an instance in point where an 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 are far widely removed from the locality in which the externee had committed but two supposedly 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."

10. This Court had also occasion to consider the same point involved in this Petition in the case of Balu Vs. The Divisional Magistrate, Pandharpur, reported in 1969 Mh.L.J. 387, while appreciating the facts involved in that case, this Court held that extending the area of externment not only outside Pandharpur Taluka but to the Districts of Solapur, Pune and Satara is illegal since the alleged activities against the Petitioner therein, as stated in the show cause notice, were confined to the Pandharpur City. In the case of Punjaji

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Dagdu Gaikwad Vs. State of Maharashtra and Ors., reported in 2001(Supp.2) Bom.C.R. 611(N.B.): 2001 (3) Mh.L.J. 926, in the facts of that case, this Court held that the Petitioner's area of activities is confined to Buldhana District, but the Petitioner is externed from Buldhana District as well as Districts of Akola, Washim, Jalna, Parbhani and Jalgaon. Order suffered from vice of excessive externment from five Districts in respect of which no data was placed and the entire externment order was in the circumstances liable to be quashed. Yet in another exposition of this Court, in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and Ors., reported in 2006 (1) Bom.C.R. (Cri.) 44, in the facts of that case, this Court held that the alleged activities of the Petitioner therein are restricted to particular District. Therefore, an externemnt order of the respective Petitioners from other District except Greater Bombay and adjoining Districts of Thane is excessive.

11. In the background of aforesaid discussion and upon perusal of facts of this case, when the crimes registered against the Petitioner are confined to

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Shivaji Nagar Police Station within the limits of Greater Bombay, by impugned order, the Petitioner is externed from Greater Bombay, New Bombay, Thane and Raigad Districts for two years."

9. Once this Court has reached to the

conclusion that, the externment order is

excessive, the same deserves to be quashed in

its entirety.

10. At this stage, learned A.P.P.,

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. In the

case of Umar Mohamed Malbari Vs. K.P.

Gaikwad, Dy. Commissioner of Police and anr.

(1988 Mh.L.J. 1034), while considering the

similar argument advanced by the learned

A.P.P., the Division Bench of this Court in

para 8 held thus :-

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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

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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 page 513".

11. In the light of discussion in

foregoing paragraphs, we pass the following

order :-

ORDER

(i) The impugned order dated 12th January,

2017 passed by respondent no.2 - Sub-

Divisional Magistrate, Bhusawal Division,

Bhusawal, Dist. Jalgaon in Externment Case

No.60 of 2016 and the order dated 30th March,

2017 passed by respondent No.4 - Divisional

Commissioner, Nashik Division, Nashik in

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Externment Appeal No.6/2017 are hereby

quashed and set aside.

(ii) Rule is made absolute on the above terms.

The petition stands disposed of accordingly.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          SAG