Kailas Devram Kolpe vs The Divisional Commissioner And ...
2017 Latest Caselaw 468 Bom

                                                             198.2017Cri.WP.odt
                                          1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO.198 OF 2017 

          Kailas Devram Kolpe,  
          Age 35 years, Occu. At Present Nil,  
          R/o. C/o. Navnath Devram Shelke,  
          Shubham Park, Flat No.8, A-Wing, 
          4th Floor, Near Bombay Naka,  
          Pawan Nagar Road, Nashik.        PETITIONER 

                     VERSUS 

          1.       The Divisional Commissioner,  
                   Nashik Division, Nashik.  

          2.       The Sub Divisional Police Officer 
                   Shirdi Division, Shirdi,  
                   Tq. Rahata, Dist. Ahmednagar 

          3.   The Sub Divisional Officer 
               Shirdi Division, Shirdi,
               Tq. Rahata, Dist. Ahmednagar 
                                              RESPONDENTS 
                                    ...
          Mr.K.B.Borde, Advocate for the Petitioner 
          Ms.P.V.Diggikar, APP for the Respondent/State 
                                 ...
                           CORAM:  S.S.SHINDE & 
                                   K.K.SONAWANE,JJ.     

Reserved on : 28.02.2017 Pronounced on : 06.03.2017

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

1. Heard.

2. Rule. Rule made returnable

198.2017Cri.WP.odt

forthwith, and heard finally with the consent

of the parties.

3. This Writ Petition is filed by the

petitioner, questioning the legality,

propriety and correctness of the order dated

30th September, 2016 passed by respondent no.1

- Divisional Commissioner, Nashik Division,

Nashik in Externment Appeal No.42/2016.

4. The learned counsel appearing for

the petitioner invites our attention to the

pleadings/grounds in the Petition, annexures

thereto and submits that the alleged

activities/offences registered against the

petitioner are within the jurisdiction of

Kopargaon Police Station, however, the

petitioner is externed from Ahmednagar

District, Yeola, Sinnar and Niphad Talukas in

Nashik and Vaijapur Taluka in Aurangabad

District. He submits that the order is

excessive inasmuch as the alleged activities

198.2017Cri.WP.odt

of the petitioner are stated within the

jurisdiction of the Kopargaon Police Station,

however, the petitioner is externed from the

above mentioned other Talukas. He further

submits that there is no mention in the show

cause notice dated 8th March, 2016 as well as

in the impugned order that in-camera

statement of the witness disclosed any

specific allegedly activities committed by

the petitioner causing harm or danger to a

person or properties. Therefore, relying upon

the judgments in the cases of Iqbaluddin

Ziauddin Pirzade Vs. The State of Maharashtra

and Ors.1, Yeshwant Damodar Patil Vs. Hemant

Karkar, Dy. Commissioner of Police &

another2, Umar Mohamed Malbari Vs.

K.P.Gaikwad, Dy. Commissioner of Police and

another3 in the cases of Shafi and Saddam

Shoukat Qureshi Vs. Assistant Police

Commissioner and others in Criminal Writ

1 2015 (2) Bom.C.R. [Cri.] 464 2 1989 (3) Bom.C.R. 240 3 1988 Mh.L.J. 1034

198.2017Cri.WP.odt

Petition No.2032 of 2016, decided on

11.08.2016, Sayeed Firoz Sayeed Noor Vs.

State of Maharashtra,4, in the case of

Ravindra @ Ravi Harisingh Jadhav in Criminal

Writ Petition No.117 of 2015 decided on

09.03.2015 and in the case of Balu Vs. The

Divisional Magistrate, Pandharpur5, he

submits that, the show cause notice is

violative of the principles of natural

justice. He further submits that the

petitioner did not get an opportunity to

explain the allegations made against him. He

further submits that there was no sufficient

material for arriving to the subjective

satisfaction by the respondent no.2 before

issuing show cause notice and passing the

impugned order externing the petitioner from

Ahmednagar District, Yeola, Sinnar and Niphad

Talukas in Nashik and Vaijapur Taluka in

Aurangabad District.

4 2016 [1] Bom.C.R. [Cri.] 270. 5 1969 Mh.L.J. 387

198.2017Cri.WP.odt

5. The learned APP appearing for

respondent - State relying upon the reasons

assigned in the order dated 30.06.2016 passed

by the Sub Divisional Officer and the order

dated 30.09.2016 passed by the Divisional

Commissioner, Nashik Division, Nashik,

submits that both the authorities, on the

basis of the documents placed on record and

the statement of the witness, have reached to

the correct conclusion and passed the order

of externment against the petitioner.

Therefore, he submits that the Petition may

be rejected.

6. We have carefully perused the

original record of an externment proceedings.

The first show cause notice dated 08.03.2016

issued by the SDPO contains that there were

six crimes registered against the petitioner

in Kopargaon City Police Station. It further

contains that in-camera statement of one

witness i.e. A, shows that the petitioner,

198.2017Cri.WP.odt

with the help of his companions, causes

illegal excavation of sand for sale and on

the basis of the money acquired therefrom,

creates terror in the village. Due to his

illegal acts, there has been danger to the

lives and properties of the villagers. He is

habituated to commit serious offences.

Therefore, the witness gave statement against

him on the condition of non-disclosure of his

name. In the second show cause notice dated

27.04.2016, issued by the Sub Divisional

Magistrate, Shirdi Division, Shirdi, there is

absolutely no mention about the in-camera

statement alleged to have been recorded by

the SDPO. There is no mention in the said

statement with regard to the alleged

incidents of violence committed by the

petitioner which created fear in the minds of

the villagers. Such vague and general

statement cannot be relied on to curtail the

liberty of a person to move freely in the

198.2017Cri.WP.odt

area in which he is legitimately entitled to

move. In the circumstances, in view of the

judgments in the case of Bilal Gulam Rasul

Patel Vs. Divisional Magistrate, Thane and

others6 and in the case of Bajrang Sidaram

Jadhav Vs. State of Maharashtra and others in

Criminal Writ Petition No.282 of 2013,

decided on 23.08.2013, the externment order

passed on the basis of such show cause

notices, being violative of the principles of

natural justice, is liable to be set aside.

7. As stated above, the petitioner is

alleged to have committed the offence within

the local limits of Kopargaon Police Station

only. However, he has been externed from the

above mentioned tahsils from Ahmednagar,

Nashik and Aurangabad Districts. The impugned

order does not contain any justifiable reason

to ban entry of the petitioner in other

tahsils. The impugned order of externment ex-

6 2014 All MR [Cri.] 2161

198.2017Cri.WP.odt

facie is harsh and excessive. There is no

material on record to show that the

petitioner committed any offence in the area

of the other tansils, excepting that of

Police Station, Kopargaon. 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

another7, the impugned order of externment

would be unsustainable in law.

8. In view of the above facts and

circumstances of the case, the externment

order dated 30th September, 2016, being

illegal, is liable to be set aside and

accordingly set aside with the following

order:

ORDER

(i) Criminal Writ Petition is allowed.

(ii) The impugned order of externment dated

30th September, 2016, passed in 7 2014 [1] Mh.L.J. [Cri.] 710

198.2017Cri.WP.odt

Externment Appeal No.42/2016, is

quashed and set aside.

(iii) Rule is made absolute in the above

terms.

                     

           [K.K.SONAWANE]               [S.S.SHINDE]
                JUDGE                       JUDGE  

          DDC