Bombay High Court
Laxman S/O Rambhaji Thorat vs The Divisional Commissioner And ... on 9 March, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.197 OF 2017
Laxman s/o Rambhaji Thorat
Age 64 years, Occ. Agri. & vegetable business
R/o. 'Jay-Malhar' Nagar,
Near Mukundwai Railway Station,
Aurangabad 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
Mrs. P.V. Diggikar, APP for the Respondents
.....
CORAM : S.S. SHINDE AND
V. K. JADHAV, JJ.
DATED : 9th MARCH, 2017
ORAL JUDGMENT (PER S.S. SHINDE, J.) :-
1. Heard.
2. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
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3. This Writ Petition is filed by the petitioner, questioning the
legality, propriety and correctness of the order dated 6.9.2016
passed by respondent no.1 - Divisional Commissioner, Nashik
Division, Nashik in Externment Appeal No.35 of 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 Rahata Police Station,
however, the petitioner is externed from Kopargaon, Rahata,
Shrirampur, Sangamner Talukas in 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 of the petitioner are stated within
the jurisdiction of the Rahata 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
23.9.2015 as well as in the impugned order that in-camera
statements of the witnesses disclose any specific alleged 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
1 2015 (2) Bom.C.R. [Cri.] 464
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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 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, Pandharpur 5, 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 at the subjective
satisfaction by the respondents before issuing show cause notice
and passing the impugned order externing the petitioner from
Kopargaon, Rahata, Shrirampur, Sangamner Talukes in
Ahmednagar District, Yeola, Sinnar and Niphad Talukas in Nashik
and Vaijapur Taluka in Aurangabad District.
5. The learned APP appearing for respondent - State relying
upon the reasons assigned in the order dated 11.01.2016 passed by
the Sub Divisional Officer and the order dated 06.09.2016 passed by
the Divisional Commissioner, Nashik Division, Nashik, submits that
2 1989 (3) Bom.C.R. 240
3 1988 Mh.L.J. 1034
4 2016 [1] Bom.C.R. [Cri.] 270.
5 1969 Mh.L.J. 387
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both the authorities, on the basis of the documents placed on record
and the statements of the witnesses, 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 23.09.2015 issued by
the SDPO contains that there were two crimes registered against the
petitioner in Rahata City Police Station. It further contains that in-
camera statements of three witnesses, A to C, show that the
petitioner, with the help of his companions, causes illegal excavation
of sand for sale and on the basis of the money earned 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 witnesses gave statements
against him on the condition of non-disclosure of their names. In the
second show cause notice dated 09.12.2015, issued by the Sub
Divisional Magistrate, Shirdi Division, Shirdi, there is absolutely no
mention about the in-camera statements alleged to have been
recorded by the SDPO. If the in-camera statements of A to C are
compared, it would be clear that they are quite identical. It does not
appear to be natural and probable that two persons would state in
such a fashion. Moreover, there is no mention in the said statements
with regard to the alleged incidents of violence committed by the
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petitioner which created fear in the minds of the villagers. Such
vague and general statements cannot be relied on to curtail the
liberty of a person to move freely in the 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 Rahata 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 seven tahsils of three Districts. The impugned
order of externment ex-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 seven tahsils, except that of Police Station,
Rahata. 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
6 2014 All MR [Cri.] 2161
7 2014 [1] Mh.L.J. [Cri.] 710
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be unsustainable in law.
8. In view of the above facts and circumstances of the case, the
externment order dated 06.09.2016, being illegal, is liable to be set
aside and accordingly it is set aside with the following order:
ORDER
(i) Criminal Writ Petition is allowed.
(ii) The impugned order of externment dated 06.09.2016,
passed in Externment Appeal No.35 of 2016, is quashed
and set aside.
(iii) Rule is made absolute in the above terms.
( V. K. JADHAV, J.) (S. S. SHINDE, J.)
rlj/
