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Judgment
V.K. JADHAV, J
Rule. Rule made returnable forthwith and heard finally byconsent of the learned counsel for the parties. Â
By way of this criminal writ petition, the petitioners are taking exception to the judgment and order passed by the learned Divisional Commissioner,
Aurangabad in File No.2017/GAD/Room-1/Pol-1/ Extern/CR-131 dated 12.03.2018, arising out of the judgment and order dated 30.09.2017 passed by
respondent no.2-Externing Authority and Superintendent of Police, Beed in File No.LCB/MPA/55 /2997/2017.
It is the case of the petitioners that they are the real brothers inter-se and permanent residents of village Gunthegaon, Post Borgaon, Taluka Georai,
District Beed. Respondent no.3-Police Inspector, Chaklamba Police Station alleged that petitioner no.1 is the head of a gang involved in various
serious crimes and petitioner no.2 is a member of the said gang. Offences are registered against the petitioners with Chaklamba Police Station and
though they were arrested on several occasions, there is no change is their behaviour.
Respondent no. 3, therefore, submitted a report to the Sub-Divisional Police Officer, Georai requesting therein to extern the petitioners from Beed,
Aurangabad, Jalna and Osmanabad Districts for a period of two years. On the basis of the said report, the Sub-Divisional Police Officer, Sub-Division,
Georai had been appointed as inquiry officer. He investigated the matter secretly and submitted a report on 18.09.2017, mentioning therein that four
crimes have been registered and pending against the petitioners with Chaklamba Police Station and recommended externment of the petitioners for the
reasons mentioned in his report. A notice was issued to the petitioners by the Deputy Sub-Divisional Police Officer, Georai on 02.09.2017, to which
the petitioners replied on 12.09.2017. Thereafter, again notices were issued to the petitioners on 18.09.2017 and 26.09.2017. Though the petitioners
filed their detailed reply to the above said notices, the same have not been considered by the Externing Authority while passing the impugned judgment
and order dated 30.09.2017 by which the petitioners have been externed from all Talukas of Beed District, Shevgaon Taluka of Ahmednagar District,
Ambad Taluka of Jalna District and Paithan Taluka of Aurangabad District for a period of two years. The appeal preferred by the petitioners before
the Divisional Commissioner, Aurangabad, challenging the aforesaid judgment and order of externment, also came to be rejected on 12.03.2018.
Hence this Petition.
The learned counsel for the petitioners submits that the impugned judgment and orders are based on assumptions and presumptions. The Externing
Authority i.e. respondent no.2 failed to consider that the petitioners have not committed any offence as alleged and they have been falsely implicated
in the said crimes. The petitioners have been already acquitted by the learned Judicial Magistrate First Class, Georai, from the case bearing RCC No.
71/2008 with respect to the offences leveled against them. They have not been convicted by any court in any crime. Moreover, out of the four
cases of crime mentioned in the report dated 18.09.2017 submitted by the Sub-Divisional Police Officer, Sub-Division, Georai, in some cases, even no
charge sheet is filed against the petitioners. All these facts have not been considered by the Externing Authority.
The learned counsel for the petitioners further submits that both the authorities below have failed to consider that the four crimes registered against
the present petitioners have been lodged by the police officials or other officials on behalf of the State and no individual person has filed any report or
complaint against them. Registration of said crimes against the petitioners is the outcome of instigation by some rival group and the petitioners have no
concern with said crimes. The petitioners have not given any threats to anybody and therefore, there is no question of danger to life of people at their
hands as alleged. The notice issued to the petitioners was defective. Opportunity of hearing was not given to the petitioners in proper manner. There is
non-observance of mandatory provisions while passing the impugned orders. Thus, the impugned orders are erroneous and bad in law which require to
be set aside.
The learned counsel for the petitioners submits that, the petitioners are law abiding and peace loving citizens and they are the only earning members
in their families. Petitioners are agriculturists by profession and their entire family members are dependent upon their income. Petitioners' presence in
their field is necessary for agricultural works. The entire family of the petitioners will suffer if the impugned orders are not set aside.
The learned counsel for the petitioners, in order to substantiate his contentions, placed reliance on the case of Pappu @ Akhilesh ShivshankarÂ
Mishra vs The State of Maharashtra & Another, reported in 2017 All MR (Criminal) 1.
The learned APP, on the other hand, invites our attention to the reports submitted by the Police Inspector, Chaklamba Police Station and the Sub-
Divisional Police Officer, Sub-Division Georai. As per the said reports, petitioner no.1 is the chief and petitioner no.2 is the member of a gang indulged
in serious criminal activities. Since 2007, there are many reports received against them. They are involved in offences against public as well as the
public officials. They are prohibiting the public officers from doing their official duty.
The petitioners are also involved in illegal excavation of sand. The society is under terror of the petitioners and therefore, nobody is coming forward to
file complaint against them. In the said reports, it is mentioned that four offences are registered against the petitioners. They have been arrested on
several occasions. Still they are continuously doing illegal activities and hence their externment from the district is necessary so as to maintain peace
and tranquility in the society.
The learned APP submits that after receipt of the report from Police Inspector of Chaklamba Police Station, respondent no.3Externing Authority
directed the Sub-Divisional Police Officer, Georai to conduct an inquiry as contemplated under the Maharashtra Police Act, 1951. It is only after
receipt of the order of inquiry that the SubDivisional Police Officer, Georai issued notice to the petitioners incorporating all the offences registered
against them and their illegal activities. Explanation from the petitioners was also sought and they were informed that they may examine any witness
for their defence, if so desired. The said notice was duly served upon the petitioners. The petitioners filed their reply alongwith vakalatnama of the
advocate engaged by them. After filing of said reply, the petitioners have not examined any witness on their behalf. The Sub-Divisional Officer has
personally verified the complaint against the petitioners by calling secret witnesses. He has also verified the statements given by the secret witnesses
to the police officer. After receipt of reply from the petitioners and after giving sufficient opportunity of being heard to them, the Sub-Divisional
Officer has recommended their externment.
The learned APP further submits that after receipt of the report from the Sub-Divisional Police Officer, the Externing Authority has issued two
notices to the petitioners which were duly served on them. However, they did not remain present nor filed their say. Thus, the petitioners were given
sufficient and proper opportunity of hearing. After going through the proposal for externment of petitioners and the documents annexed to it,
respondent no.2 passed the externment order on 30.09.2017. Respondent no.1-Divisional Commissioner, after going through the record and
proceedings, also upheld the order of externment dated 30.09.2017 passed by respondent no.2. The learned APP submits that there is sufficient
material available against the petitioners. There is no perversity in the orders passed by the authorities and thus, no interference is required. Â
We have heard learned counsel appearing for the petitioners and learned A.P.P. for the respondents. With their able assistance, we have
perused the pleadings in the petition and annexures thereto. We have also perused the original record made available by the learned A.P.P. 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 are in the show-cause notice confined to Georai Taluka in Beed district, however,
the petitioners are externed from four districts i.e. Beed, Osmanabad, Jalna and Aurangabad, we are confining our adjudication to the aforesaid
ground alone.
Upon careful reading of the original record, show-cause notice and also the impugned orders, so far alleged prejudicial activities of the petitioners
are concerned, same are described in Georai area in Beed district, there is no discussion or subjective satisfaction disclosed in the impugned order,
why the externment of the petitioners from Osmanabad, Jalna and Aurangabad districts is necessary. Upon careful reading of the show-cause notice
and also the impugned order, it appears that, the offences registered against the petitioners are with Chakalmba Police Station located in Beed district.
Therefore, it is crystal clear that, the Superintendent of Police, Beed and the Divisional Commissioner, Aurangabad Division, Aurangabad have not
assigned any reasons or recorded the subjective satisfaction about the externment of the petitioners from Osmanabad, Jalna and Aurangabad districts.
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 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 :
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 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.
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 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 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.
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.â€
Once this Court has reached to the conclusion that, the externment order is excessive, same deserves to be quashed in its entirety.
At this stage, learned Additional 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. 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 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 513â€.
In the light of discussion in foregoing paragraphs, we pass the following order :-
(i) The order passed by the learned Divisional Commissioner, Aurangabad in File No.2017/GAD/Room-1/Pol-1/ Extern/CR131 dated 12.03.2018,
arising out of the judgment and order dated 30.09.2017 passed by respondent no.2-Externing Authority and Superintendent of Police, Beed in File
No.LCB/MPA/55/2997/2017 are hereby quashed and set aside.
(ii) Writ petition is disposed of. Rule is, accordingly, made absolute in the above terms.Â
(iii) Registry to issue authenticated copy of this judgment to the requesting party. Â