Bombay High Court
Dagdu Rambhau Aamle vs The Divisional Commissioner, ... on 9 March, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
1 JUDGMENT IN WP 1502-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1502 OF 2021
Dagdu Rambhau Aamle,
Age : 30 years, Occu.: Agril.,
R/o.: Kherda, Tq. Pathari,
District : Parbhani.
At present C/o. Nagesh Shivaji Avchar,
R/o.: Vidoli, Tq. Mantha, Dist. Jalna. .... PETITIONER
VERSUS
1. The Divisional Commissioner,
Aurangabad Division, Aurangabad.
2. The Sub-Divisional Magistrate,
Pathari, District : Parbhnai.
3. The Sub-Divisional Police Offcer,
Sailu, District Parbhani.
4. The Police Inspector,
Police Station, Pathari,
District Parbhani. ... RESPONDENTS
.....
Advocate for Petitioner : Mr. Sudarshan J. Salunke
APP for Respondents-State : Smt. P. V. Diggikar
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 03/03/2022
PRONOUNCED ON : 09/03/2022
....
2 JUDGMENT IN WP 1502-21
JUDGMENT : (Per : Sandipkumar C. More, J.) :
1. Rule. Rule made returnable forthwith. By consent, heard
fnally at admission stage.
2. The petitioner has fled this writ petition for quashing the order
passed by the learned Sub-Divisional Magistrate, Pathri, Districit
Parbhani i.e. respondent no.2 in the matter of
2021/MAG/Externment/Kavi, dated 17/09/2021 as well as the
judgment and order passed by the learned Divisional Commissioner
Aurangabad Division, Aurangabad i.e. respondent no.1 bearing
Outward No.2021/GAD/Desk-1/Pol-1/Externment/CR-62, dated
07/12/2021.
3. Background facts are as under :
The petitioner is resident of village Kherda, Tq. Pathri, District
Parbhani and enshrined with the rights and privileges under the
Constitution of India, 1950. Respondent no.3 had issued show
cause notice dated 17/06/2021 to the petitioner mentioning that on
the basis of three crimes for the offences under Chapter XVI of IPC
and under the provisions of Atrocities Act, calling upon the
petitioner as to why he should not be externed for a period of two
years under Section 56(1)(a)(b) of the Maharashtra Police Act (in
3 JUDGMENT IN WP 1502-21
short 'the Act') from Parbhani District. The petitioner submitted
reply dated 06/07/2021 to the said notice and claimed that the said
notice was illegal since he was not yet charge-sheeted in any offence
mentioned therein. Accordingly, he prayed for cancellation of said
notice. However, respondent no.3 under notice dated 05/07/2021
under Section 56 of the Act, had called the petitioner for enquiry of
the proposal of externment. Respondent no.2 thereafter considering
the material on record and say fled by the petitioner, passed order
dated 17/09/2021 and thereby externed the petitioner from the
Talukas Parali and Majalgaon of Beed District, Talukas Ashti and
Partur of Jalna District and entire Parbhani District for a period of
one year. When the petitioner questioned the legality of the aforesaid
order passed by respondent no.2 before respondent no.1 by way of
Appeal No. 2021 / GAD / Desk-1 / Pol-1 / Externment / CR-62,
respondent no.1 by dismissing the said appeal vide judgment dated
07/12/2021 confrmed the order of externment passed by
respondent no.2. As such, the petitioner has challenged the
aforesaid impugned orders by way of this writ petition.
On perusal of the said notice dated 17/06/2021 issued by
respondent no.2, it appears that following crimes as mentioned in
the said notice as well as confdential statements of witnesses as
regards the dangerous activities of the petitioner are considered for
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the externment. We would like to reproduce those crimes herein
below :
Sr. Police Crime No. Under Section Present
No. Station status
1. Pathri 144/2021, 507 of IPC -
dated
04/06/2021
2. Pathri 145/2021 324, 323, 504, 506 Under
r.w. 34 of IPC, investigation
under Section 3(1)
(r), 3(1)(s) of SC and
ST (Prevention of
Atrocities )Act
3. Pathri 250/2021, 341, 294, 295(A), Under
dated 323, 504, 506 r.w. investigation
06/06/2021 34 of IPC and under
Section 3(1)(s), 3(2)
(va) of SC and ST
(Prevention of
Atrocities )Act
4. Learned counsel for the petitioner submits that the notice as
well as impugned orders have been issued and passed erroneously
as the petitioner is not at all convicted in the aforesaid crimes, which
are only at the stage of investigation. He further submits that
registration of Crime No. 145 and 250 of 2021 against the petitioner,
are only due to political reasons. He further submits that in the
show cause notice dated 17/06/2021 the concerned authority did
not mention about any in-camera statements of witnesses and
therefore, the petitioner lost an opportunity of explaining the same.
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The learned counsel for the petitioner also submits that while
passing the impugned orders, there was no sign of subjective
satisfaction from the side of concerned authorities. Lastly, he
submitted that even though the crimes mentioned in the show cause
notice against the petitioner are from Pathri Taluka only, but the
concerned authorities have externed the petitioner from larger area
including portions of two districts viz. Beed and Jalna and also
entire Parbhani District. As such, the petitioner has prayed for
quashing of both the impugned orders about his externment as
directed. Besides the oral submissions, the learned counsel for the
petitioner also relied on following judgments.
I) Sayyed Jafar Sayyed Nasir vs. The Divisional
Commissioner, Amravati, 2017 ALL MR (Cri)
4303;
II) Ajay @ Golu Shyam Solank vs. State of
Maharashtra and another, 2019 ALL MR (Cri)
702;
III) Umar Mohamed Malbari vs. K. P. Gaikwad, Dy.
Commissioner of Police and another, 2000 ALL
MR (Cri) 578 and
IV) Gunwanta s/o Gajanan Khandekar vs. Sub-
Divisional Magistrate, Sub-Division Ramtek and
others, 2008 ALL MR (cri) 1519.
6 JUDGMENT IN WP 1502-21
5. On the other hand, the learned APP strongly opposed the
petition and supported both the impugned orders, which according
to her, passed with subjective satisfaction and considering the
nature of crimes registered against the petitioner along with
confdential statements of witnesses. She submits that both the
impugned orders are based upon the material on record, which
indicates that presence of the petitioner in the area from he is
externed, is highly dangerous to the public at large. So far as non-
mentioning of confdential statements of witnesses in the show
cause notice dated 17/06/2021 is concerned, the learned APP
heavily relied upon the Full Bench judgment passed by this court at
Nagpur Bench, in the case of Sumit s/o Ramkrishna Maraskolhe vs.
Deputy Commissioner of Police, Nagpur and another, reported in
2019 ALL MR (Cri) 1961 (F.B.).
6. Admittedly, it has been observed by the Hon'ble Supreme
Court as well as this court in many earlier cases that under clause
(d) of Article 19(1) of the Constitution of India, there is a
fundamental right conferred on the citizens to move freely
throughout the territory of India. In view of clause (5) of Article 19,
State is empowered to make a law enabling the imposition of
reasonable restrictions on the exercise of the right conferred by
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clause (d). Since an order of externment passed under provisions of
Section 56 of the Act imposes a restraint on the person against
whom the order is made for entering a particular area, such
restriction imposed by passing an order of externment must stand
the test of reasonableness. Thus, it appears that while passing the
order of externment in view of Section 56(1)(a)(b) of the Act the
concerned authorities must pass such orders with subjective
satisfaction considering the material on record.
7. Though the learned counsel for the petitioner has argued that
the orders are liable to be quashed mainly on the ground of non-
mentioning of confdential or in-camera statements of the witnesses
in the show cause notice itself, but the learned APP contrary
submitted that there is no such requirement as the said issue has
already been resolved by the Full Bench judgment of this court at
Nagpur Bench as mentioned above. In the case of Sumit s/o
Ramkrishna Maraskolhe vs. Deputy Commissioner of Police, Nagpur
and another, reported in 2019 ALL MR (Cri) 1961 (F.B.) after
considering various earlier cases have observed in para no.45 as
follows :
"45. Having comprehended clearly the issues central to
second question of reference, it is time for us to
formalize the answer to it and it is as follows :
8 JUDGMENT IN WP 1502-21
It is not necessary to state in the show-cause
notice the details or the particulars of in-camera
statements recorded by the externing authority
and only the general nature of material allegations
is all that is necessary to be said in the show-
cause notice. In other words, it is suffcient
compliance with the requirement of law if the
show cause notice refers in general terms to the
material allegations against the proposed externee
and when the action is under Section 56 (1) (b) of
the Act, 1951 it also generally says that the
witnesses are not coming forward to give evidence
in public against the proposed externee due to
fear, alarm, danger or harm to the person or
property, as the case may be."
Obviously, on reading the aforesaid observations, it is evident
that mentioning of such in-camera statements is not necessary at
all. As such, we discard the submission of the learned counsel for
the petitioner to that effect.
8. So far as another submission of the learned counsel for the
petitioner is concerned, it is the main submission that the impugned
orders are excessive in nature since the petitioner has been externed
from larger area as compare to his criminal activities, which are only
restricted for the area of Pathri Taluka. Admittedly, the crimes
9 JUDGMENT IN WP 1502-21
which are considered for the externment of the petitioner are
concerned with Pathri Police Station only and there are no crimes
registered against the petitioner in the excess area as mentioned in
the impugned orders from which he has been externed.
9. The learned APP again by relying upon the aforesaid judgment
of Full Bench pointed out that the Hon'ble Supreme Court in the
cases of Pandharinath Shridhar Ragnekar vs. Dy. Commissioner of
Police, the State of Maharashtra reported in (1973)1 SCC 372, State
of NCT of Delhi and another vs. Sanjeev @ Bitto, reported in 2005
SCC (cri)2015 and Lt. Governor, NCT and others vs. Ved Prakash @
Vedu, reported in 2006 ALL MR (Cri) 2645 has held that a person
can be directed to be externed from an expansive area so as to make
implementation of the order of externment much effective, easier and
convenient. However, on going through the conclusion of the Full
Bench of this Court at Nagpur Bench it is observed in para no. 26 of
the said judgment as follows:
"26. The discussion made so far would lead us to
record our conclusions as follows :
(i) 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
10 JUDGMENT IN WP 1502-21
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).
(ii) 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.
(iii) 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
11 JUDGMENT IN WP 1502-21
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.
Question no. (1) having three aspects
enumerated in clauses (a), (b) and
(c), is answered specifcally through the three
conclusions made as above".
10. Thus, it appears that an externment order directing a person
from much larger area than the one of his illegal activities, must be
based upon some effective material to that effect and that too after
reaching a subjective satisfaction by the concerned authorities.
Moreover, there should be an application of mind by the concerned
authorities to arrive at a particular conclusion for externing the
person from much larger area and there must be a reasoned order to
that effect.
12 JUDGMENT IN WP 1502-21
11. In the instant case, only three crimes are considered by both
the concerned authorities for externment of the present petitioner.
All these crimes are only concerned with the area of Pathri Taluka,
District Parbhani and there appears no material in respect of
criminal activities of the petitioner for the area of Talukas Parali and
Majalgaon of Beed District Ashti and Partur Talukas of Jalna
District. Further though it is mentioned that the petitioner is to be
externed from Ashti Taluka of Jalna District but in fact Ashti Taluka
falls under Beed District and not in Jalna District. As such non-
application of mind by the concerned authorities is apparent prima
facie. Further in both the impugned orders though there is mention
of such confdential witnesses, but it is not specifed as to what was
stated by those confdential witnesses. It is extremely important to
note that even though the crimes against the petitioner are only
registered in Pathri Police Station, which have been considered for
his externment, but there is no explanation at all in both the
impugned orders as to why the petitioner is required to be externed
from the larger area involving Parali, Majalgaon, Ashti and Partur
Talukas and entire Parbhani District. Thus, it is clearly a non-
application of mind on the part of both the concerned authorities,
who passed the impugned orders. Therefore, in view of the
observation of Full Bench of this Court at Nagpur Bench, we come to
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the conclusion that the externment orders appear excessive in
nature as regards the externment of the petitioner from larger area
than the area in respect of his criminal activities. Further, there is
no explanation in both the orders as to why the petitioner has been
externed from larger area. It indicates clear non-application of
mind. Moreover, the impugned orders also appear to be passed
without subjective satisfaction by the concerned authorities. Hence,
we fnd that the impugned orders are liable to be quashed and set
aside being an excessive orders. In the result, we pass following
order.
ORDER
I) Criminal writ petition is hereby allowed in terms
of prayer clause "C".
II) Rule made absolute in above terms.
III) Criminal writ petition is disposed of accordingly.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
