Bombay High Court
Vilas Siddharth Sirsat vs The State Of Maharashtra on 7 December, 2009
Author: S. S. Shinde
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Application No. 2907 of 2009
Vilas Siddharth Sirsat,
Aged about 26 years,
Occupation - Business,
R/o Bhim Nagar, Old City,
Akola. .. APPLICANT
.. Versus ..
1. The State of Maharashtra,
through its Secretary,
Ministry of Home Affairs,
Mantralaya, Mumbai-32.
2. Sub-Divisional Magistrate,
Akola, District-Akola. .. NON-APPLICANTS
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Mr. N.B. Jawade, Advocate for the applicant,
Mr. S.S. Doifode, Advocate for the non-applicants.
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CORAM:- S. S. SHINDE, J.
DATED :- 5th DECEMBER, 2009
JUDGMENT
1. This application takes exception to the order dated 18-12-2008 passed by the Sub-Divisional Magistrate, Akola in Case No. 29/2008 and the order dated 12-3-2009 passed by the Principal Secretary in Appeal No. EXT-2009/8/Visha-5, thereby rejecting the appeal of the applicant.
::: Downloaded on - 09/06/2013 15:23:15 ::: 22. Brief facts of the case are as under :-
The non-applicant No.2 herein issued show cause notice asking the applicant as to why he should not be externed from five districts under the Amravati Division. The said notice was never served on the applicant. On 18-12-2008 the applicant came to know that the order of externment under Section 56 of the Bombay Police Act has been passed. The applicant, therefore, preferred an appeal bearing No.8/2009 under Section 60 of the Bombay Police Act.
ig The Principal Secretary by the impugned order dated 12-3-2009 dismissed the said appeal.
Hence, this application is filed.
3. The learned Advocate appearing for the applicant submits that no independent enquiry has been conducted by the Sub-Divisional Magistrate before issuing the show cause notice to the applicant and has relied solely on the report placed by the Police Station Officer, Akola. The learned Advocate further submitted that the offences mentioned in the said show cause notice and further relied upon by the Sub-
Divisional Magistrate for passing the impugned order cannot be considered since in first five offences mentioned in the show cause notice, the applicant has been acquitted when in other cases, the applicant has been granted bail.
::: Downloaded on - 09/06/2013 15:23:15 ::: 34. The learned Advocate further submitted that on perusal of the offences in the show cause notice, would show that the same have been registered only in two Police Station in Akola city. The last offence was registered against the applicant in the previous in 2007. No offence is registered against the applicant in the year 2008. The learned Advocate further submitted that the order has been passed mechanically.
5. The learned Advocate in support of his contention that no externment order externing the applicant could have been passed from other districts than a district in which alleged activities have been attributed to the applicant, relied on following judgments;-
1. Shri Umar Mohamed Malbari .v. K.P. Gaikwad Deputy Commissioner of Police, Zone-II, Thane and another reported in Cr.L.R.(Mah). 1988, 480;
2. Suleman Husa Davji .v. The State of Gujarat and another reported in 1989 Cr.L.R.(Guj.) 132;
3. Namdeo Laxman Charde .v. Sub-Divisional Magistrate Katol reported in 1996(1) Mh.L.J. 483;
4. Babadin s/o Badruddin .v. State of Maharashtra reported in 2001(1)Mh.L.J. 502;
5. Cri.W.P. 777 of 2005 Nandkishor s/o Jagdish Duryodhan .v. State of Maharashtra and others;
6. Bharat s/o Dhondba Tarare .v. The Sub-Divisional Officer and others reported in 2007 ALL MR(Cri) 3036;
::: Downloaded on - 09/06/2013 15:23:15 ::: 47. Gunwanta s/o Gajanan Khandekar .v. Sub-Divisional Magistrate, Sub-Division Ramtek and others reported in 2008 ALL MR (Cri) 1519:
6. Therefore, the learned Advocate submits that the order of externment dated 18-12-2008 passed by the non-applicant No. 2 and order dated 12-3-2009 passed by the Principal Secretary may be quashed and set aside.
7. The learned APP appearing for the non-applicants/State vehemently opposed the application and submitted that the applicant is habitual criminal person, there are several First Information Reports lodged against the applicant in the Police Station Akola City, Akola.
8. The learned APP invited my attention to the affidavit in reply filed on behalf of the State and submitted that this application is devoid of any merits and deserves to be rejected.
9. I have heard the learned Advocate appearing for the applicant at length and learned APP for the non-
applicants/State. This application deserves to be allowed only on the point that the externment order passed by the non-
applicant No.2 externing the applicant from five districts is not ::: Downloaded on - 09/06/2013 15:23:15 ::: 5 sustainable, in view of the admitted position that, the alleged offences and activities against the applicant are within the area of Akola City. This point is no more res integra. This Court in number of pronouncements held that, if the externment order is passed externing the person more than one districts and his activities or offences alleged against him are only in one district, then the externment order externing the concerned person has to go. This Court in case of Shri Umar Mohamed Malbari .v. K.P. Gaikwad Deputy Commissioner of Police, Zone-II, Thane cited (Supra) in paragraph 7 this Court has observed that-
"If the activities indulged in by the petitioner were restricted within the Taluka of Bhiwandi within the Thane Commissionerate, the order externing the petitioner out of the Raigad and Nasik Districts which has within them Taluka places at a distance of more than 100 miles will undoubtedly be an excessive order and an excessive order has necessarily to be a struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case."
::: Downloaded on - 09/06/2013 15:23:15 ::: 610. In Paragraph 8 of the said Judgment this Court further observed that -
"This Court is only concerned with the question as to whether the Tribunal exercising judicial or quasi judicial function 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."
11. The view taken by the Division Bench in case of Shri Umar Mohamed Malbari .v. K.P. Gaikwad Deputy Commissioner of Police, Zone-II, Thane cited (Supra) followed by this Court in other reported judgments cited (Supra) in paragraph 4 above.
12. Therefore, the order passed by the non-applicant No.2 suffers from voice of excess. In fact the alleged activities of the applicant are restricted to Akola district alone and he has been ::: Downloaded on - 09/06/2013 15:23:15 ::: 7 externed from the other districts and thereby the order passed by the non-applicant No.2 is excessive. As held by the Division Bench of this Court in Shri Umar Mohamed Malbari .v. K.P. Gaikwad Deputy Commissioner of Police, Zone-II, Thane cited (Supra) whole order of the externment impugned in this petition has to go. Therefore, application succeeds. The order dated 18-12-2008 passed by the Sub-Divisional Magistrate, Akola in Case No.29/2008 and order dated 12-3-2009 passed by the Principal Secretary in Appeal No.EXT-2009/8/Visha-5 are quashed and set aside. The Rule is made absolute in terms of prayer clause (1).
JUDGE adgokar ::: Downloaded on - 09/06/2013 15:23:15 :::