Bombay High Court
Ravi S/O. Ramdas Aher vs The State Of Maharashtra on 20 December, 2018
Equivalent citations: AIRONLINE 2018 BOM 1397
Author: S.S.Shinde
Bench: S.S. Shinde, K.K. Sonawane
1246.18WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO.1246 OF 2018
Ravi S/o Ramdas Aher
Age : 22 years, Occ : Education,
R/o Kopergaon, Tq. Kopergaon,
Dist. Ahmednagar.
..PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya, Mumbai - 32.
2. The Divisional Commissioner,
Nashik Division, Nashik.
3. The Sub-Divisional Magistrate,
Shirdi Division, Shirdi,
Tq. Rahata, Dist. Ahmednagar.
..RESPONDENTS
....
Advocate for petitioner : Mr. A.D. Shinde
APP for Respondents : Mr. S.B. Narwade
....
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 17TH DECEMBER, 2018
PRONOUNCED ON : 20TH DECEMBER, 2018
JUDGMENT :(Per S.S.SHINDE, J) Rule. Rule made returnable forthwith ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 2 and heard finally by the consent of learned counsel appearing for the parties.
2. This Petition is filed with the following prayers :-
"B) By appropriate writ, order or directions, to hold and declared that, the impugned externment order dated 9.2.2018 passed by the Sub-Divisional Magistrate, Shirdi Division, Shirdi in pursuance to the externment Case SR no.
90 of 2017 thereby externing the petitioner from entire Ahmednagar District and some portion of Nashik and Aurangabad and the order dated 18.8.2018 passed by the Divisional Commissioner, Nashik Division, Nashik in appeal No. 50 of 2018 thereby modifying the order passed by the respondent no.3 is bad, void and violative of Article 19(1) (c) of the Constitution of India.
C) By appropriate writ, order or directions, the impugned externment ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 3 order dated 9.2.2018 passed by the Sub- Divisional Magistrate, Shirdi Division, Shirdi in pursuance to the externment sCase SR no.90 of 2017 thereby externing the petitioner from entire Ahmednagar District and some portion of Nashik and Aurangabad and the order dated 18.8.2018 passed by the Divisional Commissioner, Nashik Division, Nashik in Appeal No. 50 of 2018 thereby modifying the order passed by the respondent no.3 may kindly be quashed and set aside."
3. Learned counsel appearing for the petitioner has assailed the orders passed by the Authorities on various grounds but he has confined his arguments to only one ground that without recording subjective satisfaction and reasons in the externment orders, the petitioner is externed from three districts i.e. Ahmednagar district, some part of Nashik district and some part of Aurangabad district. It is submitted that, offences registered ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 4 against the petitioner are in Police Station located at Kopargaon Taluka of Ahmednagar district. It is submitted that, even the alleged prejudicial activities of the petitioner, as stated in the show-cause notice, are in the vicinity of Kopargaon Taluka of Ahmednagar district. Therefore, the learned counsel appearing for the petitioner submits that, the order is excessive, inasmuch as, the petitioner is externed from Ahmednagar district, some part of Nashik District and some part of Aurangabad district.
4. Learned Additional Public Prosecutor relying upon the show-cause notice and reasons recorded in the orders of externment passed by the Sub-Divisional Magistrate, Shirdi and the Divisional Commissioner, Nashik Division, Nashik, submits that, the externment order is in conformity with the material placed on record and also within fore corners of the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 5 provisions of Sections 56 and 59 of the Maharashtra Police Act, 1951. Therefore, learned A.P.P. submits that this Court may not interfere in the impugned orders.
5. We have given careful consideration to the submissions of the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the State and its officials. We have also carefully perused the original record made available by the learned Additional Public Prosecutor for perusal of this Court, show- cause notice and order impugned in this Petition. Since the Petition is confined only to the ground that, the externment order is excessive, inasmuch as the petitioner's alleged prejudicial activities mentioned in the show-cause notice are confined to Kopargaon Taluka of Ahmednagar district, however, the petitioner is externed from three ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 6 districts, therefore, we are adjudicating this Petition confined to the aforesaid ground alone.
6. Upon careful reading of the original record, show-cause notice and also the impugned orders, so far as the alleged prejudicial activities of the petitioner are concerned, the same are described in Kopargaon Taluka of Ahmednagar district and there is no discussion or subjective satisfaction disclosed in the impugned orders, why the externment of the petitioner from Ahmednagar district, some part of Nashik district and some part of Aurangbad district is necessary. Upon careful reading of the show-cause notice and also the impugned orders, it appears that, the offences registered against the petitioner are with Kopargaon Police Station in Ahmednagar district. Therefore, it is crystal clear that, the authorities have not assigned ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 7 any reasons or recorded the subjective satisfaction about the externment of the petitioner from entire Ahmednagar district, some part of Nashik district and some part of Aurangabad district. It appears that while passing the impugned order by the Appellate Authority, the said Authority has not taken into consideration the fact that the alleged activities of the petitioner were confined to the jurisdiction of Kopargaon taluka only. The Appellate authority has only modified the order passed by the Sub-Divisional Magistrate, Shirdi to the extent of reducing the period of externment from two years to one year.
7. The point raised in this Petition is no longer res integra and covered by the exposition of this Court in the case of Nisar @ Nigro Bashir Ahmed Khan V/s Dy. Commissioner of Police & ors reported in 2013(3) Bom.C.R. (Cri.) 566. The paragraph nos. 9 to 11 of the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 8 said judgment read as under :-
"9. The point raised by the learned Counsel for the Petitioner that the externment order is excessive, in as much as, the alleged activities against the Petitioner, which are alleged in the show cause notice are confined to the jurisdiction of the Shivaji Nagar Police Station and within the area of Greater Bombay, therefore, externment of the Petitioner from aforesaid other three Districts is excessive, is no more res integra and is covered by the authoritative pronouncements of the Hon'ble Supreme Court as well as by this Court. The Hon'ble Supreme Court in the case of (Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of Police, State of Maharashtra), reported in 1973 Mh.L.J. 413, in Paragraph 16, held as under :
"16. An excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. The decision ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 9 of the Bombay High Court in (Balu Shivling Dombe v. The Divisional Magistrate, Pandharpur) 1969 Mh.L.J. 387 is an instance in point where an externment order was set aside on the ground that it was far wider than was justified by the exigencies of the case. The activities of the externee therein were confined to the city of Pandharpur and yet the externment order covered an area as extensive as the districts of Sholapur, Satara and Poona. These areas are far widely removed from the locality in which the externee had committed but two supposedly illegal acts. The exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the purpose of the externment."
10. This Court had also occasion to consider the same point involved in this Petition in the case of Balu Vs. The Divisional Magistrate, Pandharpur, reported in 1969 Mh.L.J. 387, while appreciating the facts involved in that ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 10 case, this Court held that extending the area of externment not only outside Pandharpur Taluka but to the Districts of Solapur, Pune and Satara is illegal since the alleged activities against the Petitioner therein, as stated in the show cause notice, were confined to the Pandharpur City. In the case of Punjaji Dagdu Gaikwad Vs. State of Maharashtra and Ors., reported in 2001(Supp.2) Bom.C.R. 611(N.B.): 2001 (3) Mh.L.J. 926, in the facts of that case, this Court held that the Petitioner's area of activities is confined to Buldhana District, but the Petitioner is externed from Buldhana District as well as Districts of Akola, Washim, Jalna, Parbhani and Jalgaon. Order suffered from vice of excessive externment from five Districts in respect of which no data was placed and the entire externment order was in the circumstances liable to be quashed. Yet in another exposition of this Court, in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and Ors., reported in 2006 (1) Bom.C.R. (Cri.) 44, in the facts of that case, this Court held that ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:55 ::: 1246.18WP 11 the alleged activities of the Petitioner therein are restricted to particular District. Therefore, an externemnt order of the respective Petitioners from other District except Greater Bombay and adjoining Districts of Thane is excessive.
11. In the background of aforesaid discussion and upon perusal of facts of this case, when the crimes registered against the Petitioner are confined to Shivaji Nagar Police Station within the limits of Greater Bombay, by impugned order, the Petitioner is externed from Greater Bombay, New Bombay, Thane and Raigad Districts for two years."
8. Once this Court has reached to the conclusion that, the externment orders are excessive, the same deserve to be quashed in its entirety.
9. At this stage, learned Additional Public Prosecutor, however, contended that the ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:56 ::: 1246.18WP 12 entire order of externment was not liable to be struck down merely because it covered areas which were excessive than what was justified. In the case of Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police and anr. (1988 Mh.L.J. 1034), while considering the similar argument advanced by the learned Additional Public Prosecutor, the Division Bench of this Court in para 8 held thus :-
"8. Shri. Khothari, the learned Public Prosecutor however, contended that the entire order of externment was not liable to be struck down merely because it covered areas which were excessive than what was justified. This would be a case where appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. In our judgment, there is no merit in the aforesaid contention of Shri. Kothari. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial Tribunal against which it is acting to ::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:56 ::: 1246.18WP 13 transmit its record to the Court and if necessary to quash the order which the Tribunal has passed. It must not be forgotten that in issuing the writ this Court is not acting as a Court of appeal. It is exercising supervisory powers conferred upon it, and those powers are exercised by means of issuing high prerogative writs. But the power and jurisdiction of the Court is limited and the same cannot extend to the powers of an Appellate Court. This Court is only concerned with the question as to whether the Tribunal exercising judicial or quasi judicial functions has or has not acted without jurisdiction or whether in the exercise of jurisdiction it has acted in excess of jurisdiction.
If it has acted in excess of
jurisdiction, then the jurisdiction of
this Court is to quash the order passed in excess of jurisdiction. There the power of the High Court stops. It has no power to go further and to correct an excessive order passed by the authority concerned. Mohamed Usman V. Labour Appellate Tribunal, LIV Bom.L.R. at page 513".::: Uploaded on - 20/12/2018 ::: Downloaded on - 25/12/2018 22:06:56 :::
1246.18WP 14
10. In the light of discussion in foregoing paragraphs, we are of the considered view that the impugned orders are liable to be quashed and set aside. Hence we pass the following order :-
ORDER
(i) The impugned order dated 09.02.2018 passed by the Sub-Divisional Magistrate, Shirdi Division, Shirdi, against the petitioner in Externment Case SR No.90 of 2017 and the order dated 18.08.2018 passed by the Divisional Commissioner, Nashik Division, Nashik in Appeal No.50 of 2018 are hereby quashed and set aside.
(ii) Rule made absolute in above terms. The Writ Petition stands disposed of accordingly.
(iii) Parties shall act upon authenticated copy of this order.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.) sga/-
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