Kashinath vs The State of Maharashtra and Another

T.V. Nalawade, J.—Rule. Rule made returnable forthwith. By consent heard both the sides for final disposal.

The petition is filed to challenge the order of externment made by S.D.M., Kinwat District Nanded on 22/03/2013. This proceeding was started on the basis of report given by Islapur Police Tq. Kinwat. Some persons (7 to 8) had applied to the Police Station for taking action against the petitioner. Show cause notice was issued against the petitioner and after taking explanation and considering the record produced by the petitioner, the order under challenge came to be made.

In the show cause notice, it was informed to the petitioner that from year 2011 three cases were filed against him and two cases were still pending. It was informed that in view of the record produced against him by the Police Station, he can be externed from four districts like Nanded (district of petitioner), Parbhani, Hingoli and Latur for a period of two years. The petitioner gave explanation and informed that he was acquitted in two cases out of three cases mentioned in the show cause notice. He produced copy of judgments. He informed that as he was working as reporter and as he was helping police by giving information against criminal elements, some persons were making false allegations against him. He also informed that many times the Police from Nanded had felicitated him for cooperation given by him to the Police.

The S.D.M. Considered the report given by S.D.O., Kinwat and he considered the circumstance that one criminal case was pending against him. Externment order is made to keep the petitioner out of the aforesaid four districts for two years. The petitioner is living outside these four districts since 22/03/2013. Ld. A.P.P. supported the order made by S.D.M. by mentioning some additional circumstances like in the past there was one Chapter case also against the petitioner. It is also mentioned in the affidavit that Tanta Mukti Committee, Islapur had made application against him on 23/09/2008 for making inquiry against him.

Submissions made in this proceeding and the record show that the witnesses gave evidence against the petitioner in two cases which are mentioned in show cause notice but in both the cases the petitioner came to be acquitted. At present, only one case which is filed for offence u/s 147, 148, 336 and 427 of I.P.C. is pending against the petitioner. The order of S.D.M. does not show that he made any in-camera inquiry to ascertain that the persons are not ready to come forward and they are afraid of the petitioner. On the other hand, there is record to show that the Police were taking help of the petitioner and they even felicitated the petitioner forgiving information and for co-operating with them. It can be said that the petitioner had kept thick relations with the Police and something has gone wrong and due to that, action is being taken against the petitioner. It appears that the petitioner is now working for some political party also. There is some record to show that the petitioner was giving information to the Forest Department also and the department had appreciated the information given by the petitioner.

The record as it is, does not show that the petitioner had any activities in other three districts. Three cases were filed against the petitioner only by Islapur Police Station. No reasoning is given as to why the order is made in respect of the other three districts or other area where the petitioner has no activities.

Reliance was placed by the ld. advocate for petitioner on some reported cases like (i) Umar Mohammed Malbari Vs. K.P. Gaikwad and Another, , (ii) Dhananjay Manohar Sapkal Vs. State of Maharashtra and Another, , (iii) Baburao Changa Patil Vs. State of Maharashtra and Another , (iv) Shri Perumal Arsan Madrasi Vs. Deputy Commissioner of Police and Assistant Commissioner of Police , (v) Mohd. Najib and Mohd. Aslam @ Sheru Kashmiri Vs. The State of Maharashtra, The Dy. Commissioner of Police and The Principal Secretary (Appeal and Security), Home Department, Govt. of Maharashtra , (vi) Shri Kishore Chandrakant Mhatre Vs. Dy. Commissioner of Police, Asst. Commissioner of Police and The State of Maharashtra , (vii) Punjaji Dagdu Gaikwad Vs. State of Maharashtra and Others, .

In the first case, Division Bench of this Court has observed that in a proceeding of externment, it needs to be ascertained as to whether there is violation of Article 19 of the Constitution of India. It is observed that if the alleged activities of petitioner were restricted within certain locality and order of externment is passed to keep him out of other locality also, such order is excessive and it violates Article 19 of the Constitution of India. It is observed that the High Court ha prerogative and by using writ of certiorari, High Court can strike down entire order while exercising writ jurisdiction. In the same case, following observations are made:-

The rule about the failure to exercise an alternative remedy when one is in existence is a Rule relating to the discretion of the Court and that Rule does not act as a bar to the jurisdiction of the Court to entertain and grant the petition. The rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed. When an order of externment is passed against the petitioner, he can undoubtedly come to the High Court with a writ petition on the ground that his fundamental right of freedom of movement is affected and this he can do without exhausting the other remedy provided for in the Bombay Police Act viz. an appeal to the State Government against the order.

In the subsequent decision, reliance was placed by other Courts of this High Court decision and similar observations are made.

In the present case also, there is no other alternative than to hold that the order made by S.D.M. Is excessive and it violates Article 19 of the Constitution of India. In view of these circumstances, there is no alternative than to quash and set aside the order of externment made against the petitioner. So, the order.

ORDER

The petition is allowed.

The order of externment dated 22/03/2013 passed by Sub Divisional Magistrate, Kinwat District Nanded is set aside.

Rule is made absolute in the above terms.