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2007 DIGILAW 655 (BOM)

Maroti Dattarao Bansode v. State of Maharashtra

2007-05-03

B.R.GAVAI

body2007
ORAL JUDGMENT : 1. Rule made returnable forthwith. Heard by consent. 2. The learned Additional Public Prosecutor waives service on behalf of the respondents. 3. By way of present petition, the petitioner challenges the order dated 5-9-2006 passed by the learned Sub-Divisional Magistrate, Parbhani, in Case No. 2004/EFXT, vide which the petitioner has been externed from the Districts of Parbhani, Nanded, Jalna and Hingoli, and the order dated 15-11-2006 passed by the Chief Secretary, Government of Maharashtra, in Appeal No. EFXT 12/2006/499/Spl. Branch-5, thereby upholding the order of the Sub-Divisional Magistrate but restricting the externment for the Districts of Parbhani and Nanded. 4. Mr. Joydeep Chatterjee, learned Counsel appearing on behalf of the applicant, submits that the impugned orders suffer on two counts. Firstly, the Sub-Divisional Magistrate while issuing notice, has referred to six crimes registered against petitioner. However, while passing the final order he has referred to three more additional crimes and such order is bad in law for not following the principles of natural justice. Secondly, he submitted that the alleged activities of the petitioner are restricted to Nanalpeth Police Station and, therefore, the externment which was initially proposed for seven districts, the order came to be passed by the Sub-Divisional Magistrate restricted to four districts and the appellate authority has passed the order restricted to two districts. He, therefore, submitted that the impugned orders restricting the externment are excessive in nature. 5. The learned Counsel for the petitioner has placed reliance on a judgment of Division Bench of this Court in the case of Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police & another (2000 ALL M.R.(Cri) 578) 578), and a judgment of learned Single Judge of this Court in the case of Saratullah Mohammed Mukim Khan Vs. Sudesh K. Padvi and others (2002 ALL M.R. (Cri) 419) 419). 6. Mr. S.K. Tambe, learned Additional Public Prosecutor appearing on behalf of the respondents vehemently opposes the petition. He submits that the Sub-Divisional Magistrate has taken into consideration the relevant material and has passed the order of externment against the petitioner, externing the petitioner from four districts. He submits that the appellate authority has modified the same and restricted the externment only for two districts. 7. He submits that the Sub-Divisional Magistrate has taken into consideration the relevant material and has passed the order of externment against the petitioner, externing the petitioner from four districts. He submits that the appellate authority has modified the same and restricted the externment only for two districts. 7. By now, it is settled law that while passing an order of externment, whereby liberty of a citizen is infringed, the material of which no notice was given to him cannot be a basis for taking action against him. It can clearly be seen that the show cause notice dated 21st February 2006 refers only six crime numbers, whereas the final order dated 5-9-2006 in addition to six crimes, also takes into consideration three more crimes. It is needless to state that subjective satisfaction of the authority while externing the petitioner was also influenced by the material of which the petitioner was not put on notice. In that view of the matter, the impugned order passed by the Sub-Divisional Magistrate, so also, the appellate order are liable to be quashed and set aside on the short ground that they are violative of principles of natural justice. 8. In the result, the Criminal Writ Petition is allowed. Rule is made absolute in terms of prayer clause. It is needless to state that since the petition is allowed on the ground of violation of principles of natural justice, nothing observed herein shall be taken to have observed on merits of the matter.