2013 ALL MR (Cri) 4407
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B.R. GAVAI AND Z. A. HAQ, JJ.

Sagarsingh Kesharsingh Bawari Vs. Ministry Of Home Department & Ors.

Criminal Writ Petition No. 355 of 2013

3rd September, 2013

Petitioner Counsel: Mr. U.J. DESHPANDE
Respondent Counsel: Mrs. K.S. JOSHI

(A) Bombay Police Act (1951), S.56 - Externment order - Sustainability - Externment authority had taken into consideration as many as 26 prosecutions, alleged to be pending against petitioner - Except one prosecution of year 2010 under provision of Penal Code, all other prosecutions were under provisions of Bombay Prohibition Act and Maharashtra Prevention of Gambling Act - Held, prosecutions under said two Acts cannot be taken into consideration for externment - Order cannot be sustained. (Para 2)

(B) Bombay Police Act (1951), S.56 - Externment order - Sustainability - Externment order issued after 7 months of show cause notice - No nexus between the two - Further, show cause notice was issued in respect of one district however externment order was issued in respect of three districts - Order not sustainable. (Paras 2, 3)

JUDGMENT

Z. A. HAQ, J. :- Rule returnable forthwith. Heard the learned Counsel for the parties.

2. The petitioner challenges the externment order passed by the Sub-Divisional Magistrate and confirmed in appeal by the State by which the petitioner has been externed from the districts of Wardha, Amravati and Yavatmal for two years. A showcause notice was issued on 2.1.2012 asking for the explanation of the petitioner as to why he should not be externed. The order passed by the Sub-Divisional Magistrate dated 27.8.2012 takes into consideration as many as 26 prosecutions alleged to be pending against the petitioner. The perusal of the impugned orders show that except one prosecution, all other prosecutions are under the provisions of the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887. The prosecution under Sections 326, 324 read with Section 34 is of 2010. The consideration of the prosecutions under the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887 by the Authority vitiates the impugned order, inasmuch as it is the settled law that for the purposes of passing the externment order, these prosecutions cannot be taken into consideration. Apart from this, the authority has not given any reason for passing the externment order prohibiting the entry of the petitioner in three districts. In that view of the matter, the impugned order is an excessive order. However, as stated earlier, the show-cause notice is dated 2.1.2012 and the impugned order is passed almost after seven months and, therefore, it has no nexus with the externment order. The Appellate Authority has also failed to consider all these aspects and the settled law.

3. The show-cause notice seeks the explanation of the petitioner as to why he should not be externed from Wardha district. However, the order passed by the authority is in respect of the three districts. It is a settled law that the order cannot travel beyond the show-cause notice and on this ground also, the impugned orders are unsustainable in law.

4. In view of the above, the petition has to be allowed. The impugned orders are quashed. Rule is made absolute in terms of prayer clauses (i) & (ii). There will be no order as to costs.

Ordered accordingly.