Criminal Writ Petition No.609 of 2006

2nd April, 2007

Petitioner Counsel: Mr. ANIL MARDIKAR
Respondent Counsel: Mr. S. B. AHIRKAR

JUDGMENT

JUDGMENT :- This is a writ petition challenging the order of externment, passed by the Sub-Divisional Magistrate, Murtizapur under the Bombay Police Act.

2. The facts giving rise to this writ petition are as follows -

Petitioner is the resident of village Sanjapur, Distt.-Akola. The Sub-Divisional Magistrate, Murtijapur issued a show cause notice on 2-8-2005 to the petitioner as to why he should not be externed out of Amravati, Akola, Washim, Yavatmal and Buldhana districts for a period of two years. In the said show cause notice, it was alleged that the petitioner was facing trial under various sections of the Indian Penal Code as well as offences under Section 66(i)b of Bombay Prohibition Act and preventive action under the Code of Criminal Procedure. It is alleged further that the petitioner has no apparent source of livelihood and his main source of earning is out of crime. The petitioner is in the habit of consuming liquor and he frequently disturbs the public peace. Due to his activities, people do not come forward to depose against him. Even though the petitioner was convicted in one offence, he has not taken lesson and has continued to commit such acts. The petitioner had filed a reply to the said show cause notice and alleged that all allegations made in the show cause notice are false. He has been already acquitted by the Judicial Magistrate (F.C.) in the cases mentioned in the chart except one case. The other offences pertain to Prohibition Act. It is also alleged by him that he has contested election of Gram-Panchayat and he was defeated by margin of two votes only and that would show that he does not have criminal tendency and people do have faith in him. It is his contention that it is out of political rivalry, he has been externed.

3. I have heard the learned counsel for the petitioner and the Additional Public Prosecutor for the respondent.

4. Before an externment order is issued under Section 56 of the Bombay Police Act, it is mandatory to issue a show cause notice under Section 59 of the Act. As a necessary corollary, therefore, the externment order must be passed on the basis of material referred to in the show cause notice else the show cause notice itself would be meaningless. Therefore, the order should not be based on considerations other than those mentioned in show cause notice.

5. The learned counsel for the petitioner contended that the externment order is based on considerations other than those mentioned in the notice. He also submitted that the Magistrate was determined to extern him and as such observed that the witnesses examined before him were under duress.

6. Coming to the first leg of argument, the show cause notice makes a reference to some offences under Indian Penal Code and Bombay Prohibition Act and also the proceedings under Sections 107 and 151 of the Code of Criminal Procedure. As far as prohibition cases and proceedings under Sections 151 and 107 are concerned, they cannot be taken into account. With regard to the Indian Penal Code cases, the chart shows that cases referred to are too old i.e. of the years 1991 to 1997 i.e. more than ten years old and the latest case is, however, of 2004. Out of these cases, two cases are pending and rest are either compromised or the accused has been acquitted. Although it is alleged in the show cause notice that the petitioner's source of livelihood is crime, there is no case of extortion, theft or cheating against him. It cannot, therefore, be said that source of livelihood of petitioner is money earned out of criminal activities. The notice discloses that the accused misbehaves in village and disturbs public peace and even though he is convicted in one case, there is no improvement in his behaviour. The externment order, however, is not at all based on the material referred to in the notice. The externment order makes a reference to the incident in respect of implementation of prohibition policy under the Gram Swachhata Abhiyan undertaken by the ladies in the village and accused having opposed the said drive. It is also alleged that there is, therefore, danger to the safety of ladies in the village and there is every possibility of atrocities being committed on women. The main thrust of this order is on the safety of women and accused indulging in atrocities on women. If the show cause notice is seen, there is not even a whisper about the terror amongst women and there being any apprehension in the mind of the women over the activities of the petitioner. The learned Magistrate has himself examined three ladies from the village. All these three ladies say that behaviour of the petitioner is good and nobody had ever quarrelled with the petitioner. They also say that presently all illegal activities have ceased. These ladies were, in fact, produced by the Police before the Magistrate. Therefore, it is not that the petitioner had influenced them. No male member of the village is examined. All ladies have been examined. As said earlier, the main thrust of the externment order is on the safety of the ladies and there is no reference whatsoever in the show cause notice, the externment order can, therefore, certainly be vitiated, based on material not referred to in the show cause notice. It suffers from illegality and is, therefore liable to be set aside. Hence, the order.

The Externment Order passed by the Sub-Divisional Magistrate, Murtizapur against the petitioner on 30-09-2006 is quashed and set aside.

Petition allowed.