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2014 DIGILAW 1777 (BOM)

Aakash Anil Tambe v. State of Maharashtra

2014-08-08

P.R.BORA, S.S.SHINDE

body2014
Judgment : S.S. Shinde, J. 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 2. By this petition under Article 226 of the Constitution of India, the petitioner is praying for quashing and setting aside the order passed by the Sub-Divisional Magistrate, Nagar Division, Ahmednagarin Externment Proposal No. 13/2013 dated 09.04.2014. 3. The learned counsel appearing for the petitioner confined his arguments to only one ground that, without recording subjective satisfaction and reasons in the externment order, the petitioner is externed from three districts i.e. Ahmednagar, Pune and Aurangabad. It is submitted that, offences which are registered against the petitioner are in Bhingar Camp Police Station, Ahmednagar. It is submitted that, even the alleged prejudicial activities of the petitioner, as stated in the show-cause notice, are in the vicinity of Panchshil Nagar, Bhim Nagar and Bhingar area at Ahmednagar. Therefore, the learned counsel appearing for the petitioner submits that, the order is excessive, in as much as, the petitioner is externed from Ahmednagar, Aurangabad and Pune districts. 4. The learned Additional Public Prosecutor relying upon the show-cause notice, reasons recorded in the order of externment passed by the Sub-Divisional Magistrate, Nagar Division, Ahmednagar and affidavit in reply filed on behalf of Respondent No.3 submits that, the externment order is in conformity with the material placed on record and also within fore corners of the provisions of Sections 56 and 59 of the Bombay Police Act, 1951, therefore, this Court may not interfere in the impugned order. 5. We have given careful consideration to the submissions of the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the State. We have also perused the show-cause notice, order impugned in this Petition, the reply filed by the State and the original file made available for perusal by the learned Additional Public Prosecutor for the State. Since the petition is confined only to the ground that, the externment order is excessive, in as much as, the petitioner's alleged prejudicial activities are in the show-cause notice confined to Panchshil Nagar, Bhim Nagar and Bhingar areas at Ahmednagar, however, the petitioner is externed from three districts, we are confining our adjudication to the aforesaid ground alone. 6. Since the petition is confined only to the ground that, the externment order is excessive, in as much as, the petitioner's alleged prejudicial activities are in the show-cause notice confined to Panchshil Nagar, Bhim Nagar and Bhingar areas at Ahmednagar, however, the petitioner is externed from three districts, we are confining our adjudication to the aforesaid ground alone. 6. Upon careful reading of the show-cause notice and also the impugned order, so far alleged prejudicial activities of the petitioner are concerned, same are described in Panchshil Nagar, Bhim Nagar and Bhingar areas at Ahmednagar. There is no discussion or subjective satisfaction disclosed in the impugned order, why the externment of the petitioner from Aurangabad and Pune districts is necessary. Upon careful reading of the show-cause notice and also the impugned order, it appears that, the offences registered against the petitioner are at Police Station located at Ahmednagar. The relevant discussion in the impugned judgment so far it relates to externment of the petitioner from more than one districts is concerned, is as under :- "Yaasandarbhat saamnewala yaas dileli notice hee yogya asun tyaas saamnewala yanni dilela khulasa/ yuktivaad samarthniya vatat nahi. Mhanun saamnewala yaas polisanni soochvilepramane Ahemednagar,Nashik, Pune, Solapur, Aurangabad yaa jilhyatun 2 varshasathi haddapaar karnechi sifaaras kahi anshi yogya vatat nahi. Tathapi, saamnewala yaas polisaanni sifaaras kelelya 5 jilhyanpaiki Ahemednagar, Pune wa Aurangabad yaa teen jillhyachya hadditun aik varsakarita haddapaar karne Nyayochit raahin, yaa nishkarshaprat mee aalo aahe. Mhanun, mee up vibhagiya dandadhikaari nagar bhaag Ahemednagar khalilpramane aadesh det aahet." 7. Therefore, it is crystal clear that, the Sub-Divisional Magistrate, Nagar Division, Ahmednagar has not assigned any reasons or recorded the subjective satisfaction about the externment of the petitioner from Aurangabad and Pune 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 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 : "16. 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." "10. This Court had also occasion to consider the same point involved in this Petition in the case of Balu Vs. The exercise of the power was, therefore, arbitrary and excessive, the order having been passed without reference to the purpose of the externment." "10. 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." "11. 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." 8. Once this Court has reached to the conclusion that, the externment order is excessive, same deserves to be quashed in its entirety. In the light of discussion in foregoing paragraphs, we pass the following order :- ORDER (i) The impugned order of externment dated 09.04.2014 (Exhibit "A" to the petition) is hereby quashed and set aside. (ii) Rule is, accordingly, made absolute in that behalf. In the light of discussion in foregoing paragraphs, we pass the following order :- ORDER (i) The impugned order of externment dated 09.04.2014 (Exhibit "A" to the petition) is hereby quashed and set aside. (ii) Rule is, accordingly, made absolute in that behalf. (iii) Parties are directed to act upon an authenticated copy of this order.