Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 1089 (BOM)

Vipul s/o. Bhatu Pawar v. State of Maharashtra

2007-08-07

B.R.GAVAI

body2007
ORAL JUDGMENT : 1. Rule made returnable forthwith. Heard by consent. 2. Learned Additional Public Prosecutor waives service on behalf of the respondents. 3. By way of present petition, the petitioner challenges the order dated 27th November 2006 passed by the learned Sub-Divisional Magistrate, Nandurbar, in Externment Proposal No. 17/2005, vide which the petitioner is directed to be externed from Nandurbar District as well as Surat District from Gujarat for a period of one year from the date of the order. 4. Learned Counsel appearing on behalf of the petitioner submits that at least five offences which were subject matter of the earlier externment order, which was quashed and set aside by the appellate authority, have been taken into consideration by the learned authority while issuing the impugned order dated 27th November 2006. He submits that in view of judgment of Division Bench of this Court, in case of Shri Subhash Ganu Bhoir Vs. Shri K.P. Raghuwanshi and another (1987(1) 425) Bom.C.R. 425), if the offences which were basis for the earlier order of externment, which was quashed is taken into consideration in the subsequent externment proceedings, the entire proceedings are vitiated. He, therefore, submits that the present petition be allowed on this ground. 5. Learned Additional Public Prosecutor appearing for the respondents vehemently oppose the petition. She takes a preliminary objection on the ground that the impugned order is appealable and the present petition without exhausting alternative remedy, is not tenable in extraordinary jurisdiction of this Court. She further submits that in addition to five offences, four more offences have been registered against the present applicant while issuing externment order. She further submits that there is sufficient material so as to establish that the activities of the present applicant are prejudicial to the law and order situation in Navapur and, therefore, the present petition is liable to be dismissed. 6. In so far as the preliminary objection regarding availability of alternative remedy is concerned, no doubt, if alternative efficacious remedy is available, this Court would be slow in exercising extraordinary jurisdiction. However, when the order suffers from basic infirmity, this Court would not be powerless in exercising the extraordinary jurisdiction. In that view of the matter, I am inclined to reject the preliminary objection. 7. However, when the order suffers from basic infirmity, this Court would not be powerless in exercising the extraordinary jurisdiction. In that view of the matter, I am inclined to reject the preliminary objection. 7. From the perusal of the order passed by the Principal Secretary (Appeals) of the State of Maharashtra, it can be seen that the earlier externment order was passed against the present applicant on 25th May 2004. The following five offences were taken into consideration while passing the said order. 1) Crime No. 42/2000 registered for offence punishable under Sections 452, 143, 147, 148, 149, 323, 504 and 506 of the Indian Penal Code. 2) Crime No. 85/2000 registered for offence punishable under Sections 384, 427, read with Section 34 of the Indian Penal Code. 3) Crime No. 95/2000 registered for offence punishable under Sections 448, 504, 506 read with Section 34 of the Indian Penal Code. 4) Crime No. 45/2001 registered for offence punishable under Section 160 of the Indian Penal Code. 5) Crime No. 24/2003 registered for offence punishable under Sections 147, 148, 149, 324, 504 and 506 of the Indian Penal Code. It can further be seen that after finding that the said externment order was without proper application of mind, the appellate authority was pleased to quash and set aside the externment order dated 25th May 2004. 8. From the perusal of the impugned order dated 27th November 2006, it can be seen that all those five offences which were forming basis for earlier order, were taken into consideration by the authority while passing the present order. No doubt, that the four more offences are taken into consideration. 9. The Division Bench of this Court in case of Shri Subhash supra) Ganu Bhoir (supra), has observed thus : " In our view, some of the grounds which were the subject matter of the earlier externment proceedings in Criminal Writ Petition No. 720 of 1982, could not have been made basis of the present externment proceedings in view of the decision of this Court in Criminal Writ Petition No. 720 of 1982. " It can thus be clearly seen that the Division Bench has held that if some offences which were subject matter of the earlier externment order are taken into consideration while passing subsequent order, the said order is vitiated. 10. " It can thus be clearly seen that the Division Bench has held that if some offences which were subject matter of the earlier externment order are taken into consideration while passing subsequent order, the said order is vitiated. 10. It is also to be noted that in the present case, the petitioner has been externed from Surat District of Gujrat State, which order is expressly without jurisdiction. Taking into consideration these aspects, it is clear that the learned authority has passed the impugned order without application of mind. In that view of the matter, the petition deserves to be allowed. 11. In the result, the Criminal Writ Petition is allowed. . The impugned order of externment passed by the learned Sub-Divisional Magistrate, Nandurbar, in Externment Proposal No. 17/2005, dated 27th November 2006, thereby externing the petitioner from Nandurbar District and Surat District in Gujarat State, for a period of one year, is quashed and set aside. 12. Rule is made absolute in the above terms.