Ashutosh S/O. Valladh Dheeraj ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 3224 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR.

                     CRIMINAL WRIT PETITION NO. 149 OF 2017

Ashutosh s/o Dheeraj Uike,
aged 21 years, Occupation
School Bus Driver, R/o Kapil
Nagar, Plot No.12, Nari Road,
Police Station Jaripatka, Nagpur,
presently residing at C/o Vinod 
Duryodhan Gavai, Darapur,
Amravati.                                                  ... PETITIONER

                                      VERSUS

1. The State of Maharashtra,
    through its Secretary, Home
     Department, Madam Cama 
     Road, Hutatma Rajguru Chowk,
     Nariman Point, Mumbai-400 032.

2. The Deputy Commissioner of 
     Police, Zone 5, Nagpur.

3. Assistant Commissioner of Police,
     Jaripatka Division, Nagpur, 
     Jaripatka Police Station, Nagpur.                     ... RESPONDENTS

                                       ....
Shri R.R. Vyas, Advocate for the petitioner.
Shri M.K. Pathan, Additional Public Prosecutor for the respondents.
                                       ....

                                    WITH
                     CRIMINAL WRIT PETITION NO. 250 OF 2017


Shubham Ashok Bansod,
aged about 22 years, Occupation
Labour, R/o Chandannagar, 
Buddha Vihar, PS Imamwada,
Nagpur.                                                  ...  PETITIONER

                                      VERSUS

1. State of Maharashtra,
     through Deputy Commissioner of 
     Police, Zone-4, Nagpur.



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2. Assistant Commissioner of Police,
     Sakkardara Division, Nagpur.                                    ...  RESPONDENTS

                                      .... 
Shri Mir Nagman Ali, Advocate for the petitioner.
Shri S.S. Doifode, Additional Public Prosecutor for the respondents.
                                      .... 

                                      WITH
                       CRIMINAL WRIT PETITION NO. 103 OF 2017


Badam alias Sudarshan s/o Ramesh 
@ Ravi Shambharkar,
aged about 25 years, Occupation
Private Work, R/o Behind Police
Outpost Jattarodi, Police Station, 
Imamwada, Nagpur.                                                    ...  PETITIONER

                                                  VERSUS

1. State of Maharashtra, through
     Ministry of Home Affairs,
     Mantralaya, Mumbai - 400 032.

2. The Deputy Commissioner of 
     Police, Zone No. 4, Nagpur City,
     Nagpur.

3. Police Station Officer, Police 
     Station, Imambada, Nagpur.                                      ...  RESPONDENTS

                                     .... 
Shri S.G. Karmarkar, Advocate for the petitioner.
Shri A.M. Deshpande, Additional Public Prosecutor for the respondents.
                                     .... 



                                                                     CORAM :  PRASANNA B. VARALE AND
                                                                                          M.G. GIRATKAR, JJ.

DATED : 15TH & 19TH JUNE, 2017.

ORAL JUDGMENT : (Per Prasanna B. Varale, J.)

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Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel for the parties.

2. The present petitions challenge the order passed by the

respondent/authority thereby externing the petitioners by exercising the

powers under Section 56(1)(A)(B) of the Maharashtra Police Act, 1951. A

common ground is raised in challenge to the order namely the order suffers

from excessive and arbitrary exercise of the power. As the common ground is

raised, the petitions are heard and decided together by the common

judgment and order.

3. In Writ Petition No. 149 of 2017, the petitioner is alleged to be

involved in the acts calling for an action under the Maharashtra Police

Act,1951 in the area namely Jaripatka of Nagpur City and is externed from

Nagpur City and the entire district of Nagpur. In Writ Petition No. 520 of

2018, it is alleged that the petitioner's activities are in the area of Imambada

Police Station and the petitioner is externed from entire Nagpur City. In Writ

Petition No. 103 of 2017, the petitioner's activities are alleged to have been

limited to the area of Imambada Police Station and the petitioner is externed

from Nagpur City and entire Nagpur district.

4. In Writ Petition No. 149 of 2017, Shri Vyas, the learned Counsel

appearing on behalf of the petitioner submits that the notice was issued to

the petitioner on 18.08.2016. It is stated against the petitioner that the seven

offences were registered with the Jaripatka Police Station, Dhantoli Police

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Station and Sadar Police Station and the petitioner was arrested and

subsequently was acquitted. It is further stated against the petitioner that

the preventive actions were also initiated. It is alleged that the petitioner's

activities are causing alarm to the law and order situation and there is an

apprehension that a serious problem of law and order situation may arise

because of the ill acts of the petitioner. Shri Vyas, the learned Counsel

submits that in the notice, reference is made to three offences registered

against the petitioner, out of them, two offences were registered at Jaripatka

Police Station; whereas one offence is registered at Sadar Police Station.

These cases are said to be pending before the competent Court. He also

submits that in the notice, reference is also made to two in-camera

statements. The learned Counsel then submits that to the said notice, the

petitioner submitted his reply stating therein that the petitioner was falsely

implicated in the said offences. The authority could not find any favour with

the reply and the order of externment was passed against the petitioner. Shri

Vyas, the learned Counsel submits that in the externment order, it is stated

that though the petitioner was granted time for producing the witnesses in

his defence, the petitioner failed to do so. As such, the order of externment

was passed against the petitioner.

5. Shri Vyas, the learned Counsel for the petitioner vehemently

submits that the externment authority relied on the material namely the

offences registered against the petitioner and two in-camera statements and

out of this material, the offences registered against the petitioner are of the

years 2011; 2014 and 2015 and the action is initiated after lapse of time. As

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such, there is no live link. The learned Counsel then submits that the other

material is in the form of two in-camera statements of the residents of

Jaripatka locality. Shri Vyas, the learned Counsel then submits that even the

offences which are referred to in the notice and in the externment order,

most of these offences are registered at Jaripatka Police Station. He further

submits that though assuming but not admitting that the petitioner's acts

were prejudicial, these acts were allegedly limited to the area of Jaripatka.

The externment authority without assigning any reasons, externed the

petitioner from Nagpur City and entire Nagpur district area. The learned

Counsel submits that when there was no subjective satisfaction recorded by

the authority that the material against the petitioner of such nature that he

was required to be externed from entire Nagpur City and entire Nagpur

district, in that case, the order against the petitioner externing him from the

entire city and entire Nagpur district is an arbitrary and excessive exercise of

powers by the authority. Such order is clearly unsustainable is the

submission of the learned Counsel for the petitioner.

6. Shri Vyas, the learned Counsel for the petitioner heavily relies on

the judgment of this Court in the case of Pappu @ Akhilesh Shivshankar

Mishra .v. The State of Maharashtra and another (reported in 2017 All MR

(Cri) 1). It will be useful to refer to the observations of this Court in the said

matter.

"27. ... The authority ordering externment has no where mentioned local limits of its jurisdiction. There is nothing

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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 and are not presented to us in any 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".

7. Per contra, the learned APP supports the order and relies on the

judgment of this Court in the case of Shri Mohammed Ali Fakruddin Sayyad

.v. The Assistant Commissioner of Police and others (reported in 2014 All

MR (Cri), 2876). The learned APP submits that the Apex Court in the case of

Pandharinath Shridhar Rangnekar .v. Dy. Commissioner of Police, The

State of Maharashtra (reported in AIR 1973 SC, 630) observed that there is

growth due to the industrial complex in the major cities and the cities have

spread its areas far and wide. Due to the means of transportation, it is easy to

travel from one area to another area. Thus, the submission is that the

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authority committed no error in externing the petitioner from the entire

Nagpur district.

8. Though there cannot be any dispute on the proposition of law in

the reported judgment in the case of Shri Mohammed Ali Fakruddin

Sayyad .v. The Assistant Commissioner of Police and others (cited supra), we

are unable to accept the submission of the learned APP for the reason that

the order of externment referred to the offences registered against the

petitioner at Jaripatka Police Station. It refers to the in-camera statements

recorded from the area of Jaripatka. It is specifically referred that the

preventive action was initiated against the petitioner through Jaripatka

Police Station and when there was absolutely no material to say that the acts

of the petitioner are not only restricted to Jaripatka Police Station but also

spread over in the neighbouring area or in the rural area of Nagpur district, in

that case the externment of the petitioner from the entire Nagpur district

suffers from excessive and arbitrary exercise powers by the authority. We

find considerable merit in the submission of Shri Vyas, the learned Counsel

for the petitioner that on this ground only, the order of externment is

unsustainable.

9. In the result, writ petition is allowed in terms of prayer clause (1).

The order of externment passed by the authority dated 21.10.2016 is quashed

and set aside.

10. As the same ground is raised and canvassed by the learned

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Counsel for the petitioners in other respective two petitions and as we find

that the orders in those petitions also suffer from excessive exercise of the

powers, the orders in those two petitions are also quashed and set aside.

Rule is accordingly made absolute in the aforesaid terms.

                JUDGE                                                             JUDGE 
      
*rrg.