Ram Devman Kotiye vs The Divisional Commissioner, ...
2021 Latest Caselaw 13512 Bom

                                     1                J WP 629-2021 S


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

              CRIMINAL WRIT PETITION NO. 629 OF 2021


Ram s/o Devman Kotiye,
Age : 50 years, Occu.: Agriculture,
R/o.: Upali, Tq.: Sillod,
District : Aurangabad.                                      ...        PETITIONER

       VERSUS

1.     Divisional Commissioner,
       Aurangabad.

2.     Sub-Divisional Magistrate, Sillod,
       District : Aurangabad

3.     The Police Inspector,
       Police station (Rural), Sillod,
       District : Aurangabad

4.     The Superintendent of Police (Rural),
       Aurangabad.                                        ... RESPONDENTS

                       ....
       Advocate for the Petitioner: Mr. Sunil P. Koli
       APP for the Respondents : Mr. M. M. Neralikar
                       ....


                                    CORAM: SUNIL P. DESHMUKH &
                                           N. B. SURYAWANSHI, JJ.

RESERVED ON : 02/09/2021.

PRONOUNCED ON : 21/09/2021.

JUDGMENT : (PER : N. B. SURYAWANSHI, J.) :

This petition takes exception to the order dated 05/03/2021

passed by Sub-Divisional Magistrate, Sillod, District under Section

2 J WP 629-2021 S

56(1)(A)(B) of the Maharashtra Police Act, 1951 ( for short the Act),

thereby externing the petitioner from Sillod, Kannad, Soyagaon,

Phulambri and Bhokardhan talukas for a period of two years.

2. Rule. Rule made returnable forthwith. With the consent of

the parties, petition is taken up for fnal hearing at the admission

stage.

3. The learned advocate for the petitioner assailed the

impugned order on the ground that the same is excessive as the

ofences are registered against the petitioner only in Sillod Taluka,

yet he is externed from other Talukas also. In support of his

submission, the learned advocate has placed reliance on Akram

Ajij Shaikh Vs. State of Maharashtra and others, 2014(1)

Mh.L.J.(cri.) 174. He also relied on Anna vs. State of

Maharashtra, 2017 ALL M.R. (Cri.), 2099 in support of his

submission. According to him impugned order is passed in

colourable and arbitrary exercise of powers. By pointing out the

table wherein the ofences against the petitioner are mentioned he

submitted that in the ofence at serial no.5, 'B' summary report is

already submitted. Since this ofence is taken into consideration

while passing the impugned order, it refects non-application of

mind on the part of respondent no.2. Further submission is that

there is no grave or dangerous ofence registered against the

petitioner. All false and frivolous ofences are registered. The

3 J WP 629-2021 S

learned advocate further submitted that the appellate authority

has grossly failed to appreciate contentions raised by the petitioner

and erroneously proceeded to reject the appeal. The learned

advocate by placing reliance on the Government Circular dated

14/06/2017 issued under Section 48 of the Maharashtra Land

Revenue Code, 1966, submitted that in the cases of excessive

excavation of sand, fve times amount of the market value of the

sand is liable to be recovered. He, therefore, submitted that three

ofences are registered against the petitioner under Section 379 of

the IPC for theft of sand. In view of the said circular by recovering

fve times market value of the excavated sand the petitioner needs

to be exonerated. He, therefore, submitted that the petition

deserves to be allowed and the impugned order is liable to be

quashed and set aside.

4. Per contra, the learned Assistant Public Prosecutor supported

the impugned order stating that there was sufcient material

before respondent no.2 and on the basis of the same, impugned

order has been rightly passed. By placing reliance on State of

NCT of Delhi vs. Sanjeev @ Bitto, 2005(5) SCC 181 he

submitted that it is not the sufciency of material but the existence

of material which is since-qua-non for passing the externment

order. He submitted that scope of judicial interference in

administrative decision is limited and the petitioner has failed to

4 J WP 629-2021 S

make out any case to warrant interference in the externment

order. By relying on a Full Bench Judgment in Sumit s/o

Ramkrishna Maraskolhe vs. Deputy Commissioner of Police,

Nagpur and another, 2019 ALL MR (Cri) 1961, he submitted

that the material which is considered by the authority need not be

directly or elaborately referred to in the order. He further

submitted that activities of the petitioner were also apprehended in

the adjoining Talukas and as such, he was externed from the

adjacent Talukas. He submitted that there is no error in passing

the impugned order and urged to dismiss the petition.

5. We have perused the grounds raised in the petition and the

annexures there to, the afdavit in reply fled by respondent no.2

and record made available by the learned APP.

6. Record indicates that on 31/05/2020 proposal for externment

of the petitioner was forwarded from Sillod Rural Police Station to

respondent no.2. Pursuant to which an enquiry under Section 59 of

the Act was conducted by Sub-Divisional Police Ofcer, Sillod, who

after giving an opportunity of hearing the petitioner and after

verifying the confdential statements of witnesses A and

forwarded his report recommending the externment of the

petitioner from Sillod, Kannad, Soyagaon, Phulambri Talukas of

Aurangabad District and Bhokardhan Taluka from Jalna District for

5 J WP 629-2021 S

two years.

7. On receipt of the said report, respondent no.2 by issuing

notice called upon the petitioner. The petitioner appeared in the

matter and fled his reply. Respondent no.2 after hearing the

petitioner and considering the record, was satisfed that the

petitioner needs to be externed from Sillod, Kannad, Soyagaon,

Phulambri Talukas of Aurangabad District and Bhokardhan Taluka

from Jalna District for a period of two years.

8. It is matter of record that out of six ofences, 'B' summary

report is fled in Sillod Police Station in C.R. No. 296 of 2019

registered for the ofences punishable under Sections 324, 323 and

504 of IPC. Fact remains that following fve ofences are still

registered against the petitioner under various sections of IPC :

1) C.R. No. 233 of 2017 for the ofences punishable under Sections 379, 109 of IPC;

2) C.R. No. 234 of 2019, for the ofences punishable under Sections 379 and 109 of IPC;

3) C.R. No. 11 of 2018, for the ofences punishable under Sections 379 and 109 of IPC;

4) C.R. No. 36 of 2018, for the ofences punishable under Sections 279, 337, 323, 504 and 506 of IPC;

5) C.R. No. 32 of 2020, for the ofences punishable under Sections 327, 341, 323, 504 & 506 read with 34 of IPC.

9. In the instant case, though it is a fact that all the ofences

registered against the petitioner are in Sillod Taluka, however, the

petitioner is externed from Sillod, Kannad, Soyagaon, Phulambri

6 J WP 629-2021 S

Talukas of Aurangabad District and Bhokardhan Taluka from Jalna

District. The respondent no.2 has taken into consideration the fact

that all these Talukas are contiguous and adjacent to each other

and the activities of the petitioner could be extended in those

Talukas, and as such has passed the impugned order thereby

externing the petitioner from all these Talukas.

10. In Pandharinath Shridhar Ragnekar vs. Deputy

Commissioner of Police, (1973) 1 SCC 372, it is held that,

"such possibility that the situation of the surrounding areas is such

as to give rise to an impression upon taking of judicial notice of the

situation that these areas are contiguous or adjacent to each other

or interconnected with each other through the improved means of

transport and the communication warranting externment of a

person from a larger area in order to sweep the person of his

moorings, just to make a order of externment efective and

practicable".

11. It is also held that "scope of judicial review of administrative

order is rather limited. Consideration is limited to the legality of

decision making process and not legality of the order per se. Mere

possibility of another view cannot be a ground for interference".

12. In State of NCT of Delhi (supra), the Apex Court has held

that :

7 J WP 629-2021 S

"27. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with question mere repetition of the provision would not be sufcient. Reference to be made to some material on record and if that is done the requirements of law are met. As noted above, it is not the sufciency of material but the existence of material which is sine qua non.

28. As observed in Gazi Saduddin's case (supra) satisfaction of the authority can be interfered with if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority.

29. The material justifying externment can also throw light on options to be exercised. If referring to the materials, the authority directing externment also indicates the option he thinks to be proper and appropriate it can not be said to be vitiated even though there is no specifc reference to the other options. It is a matter of legitimate inference that when considering materials to adjudicate on the question of desirability for externment, options are also considered and one of the three options can be adopted. There can not

8 J WP 629-2021 S

be any hair splitting in such matters. A little play in the points is certainly permissible while dealing with such matters".

13. In the instant case, the impugned order is passed on the

basis of material placed on record before respondent no.2, and in

our opinion respondent no.2 was justifed in passing the

externment order and there was sufcient material to warrant the

externment of the petitioner.

14. The Apex Court in Sumit s/o Ramkrishna Maraskolhe

(supra) observed as under :

"The externment order directing externment of a person from a much larger area than the one of his illegal activities, must be based upon some material which provides an objective criteria to the authority for reaching a subjective satisfaction regarding the need for externing a person to an expansive area though it may not always directly or elaborately refer to that material in the order itself, as it all depends upon facts and circumstances of the case which need be vetted through the judicial process of drawing of legitimate inference following the law of Pandharinath and Sanjeev @ Brittoo (supra).

The order of externment need not necessarily refer to the details of the material considered by it so as to show independently that larger or additional area chosen by it is intimately connected with the actual area of the activities of the externee due to improved or common means of transport and communication.

9 J WP 629-2021 S

Application of mind to the material present on record by the authority passing the externment order is necessary, but any refection of application of mind in the externment order in a specifc manner, as if to pass a reasoned order, would not be necessary. It would be enough if the order discloses that the subjective satisfaction has been reached by considering the material available on record and it would and should be a matter of legitimate inference that the authority, while considering materials to satisfy itself about the need for and extent of externment to be ordered, also considered all the options available to it and selected in it's wisdom the one which it thought to be most appropriate. This would also mean that authority, in this way, can select a larger area for being covered under it's externment order, as one of the options available to it, whether such larger area has within it contiguous or inter-connected or intimately connected pockets of areas or not.

The only duty cast upon the externing authority is to inform the proposed externee of the general nature of material allegations against him and the sphere of corresponding right of the proposed externee to know, we must say, is limited by the object of externment proceedings. The object is to bring certain kind of bad elements to book who, by their criminal activities, make it impossible or difcult for the criminal justice system to deal with sternly. In their cases, legal evidence hardly comes forth because witnesses are hesitant to depose in public out of fear to their person or property. This is the reason why the corresponding right of the proposed externee has been reduced to the minimum possible in

10 J WP 629-2021 S

law, and that is what lends sufciency to show-cause notice under Section 59(1)".

15. In Akram Ajijh Shaikh (supra) this court in the facts of that

case, came to the conclusion that since the petitioner therein was

facing criminal cases, his presence before the concerned court was

necessary. The petitioner therein was externed from Pune city and

entire Pune District when the activities of the petitioner were within

the limit of Swargate Police Station of Pune City and Audyogik

Vasahat, this court came to the conclusion that the order is bad in

law, excessive and arbitrary and needs to be interfered with. This

ruling does not help the petitioner since it is rendered in diferent

facts.

16. Even if the submission of the petitioner is accepted that

ofence at Serial No.4 pertains to rash and negligent driving, fact

remains that serious ofences under Chapter XVI and XVII of IPC

are registered against the petitioner. Due to the terror created by

the petitioner, witnesses are not coming forward to give statement

against him.

17. The record indicates that there was sufcient material before

the respondent no.2 on the basis of which he came to the

conclusion that the petitioner needs to be externed from a larger

area. Applying the ratio emerging from decision (supra), to the

facts of the present case, we are of the considered view that the

11 J WP 629-2021 S

impugned order is not excessive and the satisfaction recorded by

respondent no.2 cannot be termed as perverse and based on no

evidence. The petitioner has not made out any case that by

misreading the evidence respondent no.2 has passed the

impugned order. Admittedly, due opportunity was given to the

petitioner. The petitioner has failed to point out any manifest error

or apparent error which vitiates the impugned order. We do not

fnd that the challenge raised by the petitioner is sustainable.

18. For the afore-stated reasons, we fnd that the petitioner had

indulged in theft of sand in Sillod Taluka. Taking into consideration

the fact that Kannad, Soyagaon, Phulambri and Bhokardhan

Talukas are contiguous and adjacent to each other and

interconnect with each other. The externing authority, in our view

was justifed in externing the petitioner from all those Talukas. In

the facts of the present case, we do not fnd that the order is

excessive. We, therefore, do not fnd any merit in the challenge

raised by the petitioner. Hence, the petition is dismissed. Rule

discharged. No order as to costs.

(N. B. SURYAWANSHI, J.) ( SUNIL P. DESHMUKH, J. )

V.S. Maind/