Criminal Writ Petition No. 705 of 2013

21st October, 2013

Petitioner Counsel: Mr. MILIND K. DESHPANDE
Respondent Counsel: Mr. V.D. GODBHARLE

Cases Cited:
Balu Shivling Dombe Vs. The Divisional Magistrate, Panduarpur, 1968 B.L.R. 79 [Para 4]
Ashok Kashinath Kale Vs. Ravindra Jadhav and another, 1983 (2) Bom. C.R. 763 [Para 4]
Kathi Harsur Rukhad Vs. State of Gujarat and Ors, 1986 Cri. L. J. 1627 [Para 4]
Ram Narayan Patil Vs. State of Maharashtra and others, 1987 (1) Bom.C.R. 471 [Para 4]
Kashinath @ Kashya Sitaram Keluskar Vs. Deputy Commissioner of Police and others, 2000 ALL MR (Cri) 801 [Para 4]
Vilas Sidharath Sirsat Vs. State of Maharashtra and Anr, 2010 ALL MR (Cri) 424 [Para 4]
Nawabkhan Abbaskhan Vs. State of Gujarat, 1974 AIR (SC) 1471 [Para 4]
Umar Mohammed Malbari Vs. K.P. Gaikwad and Anr., 2000 ALL MR (Cri) 578=1988 (2) Bom. C.R. 724 [Para 4]
Pandharinath Shridhar Rangnekar Vs. Dy. Commissioner of police, AIR 1973 SC 630 [Para 5]

JUDGMENT

K. U. CHANDIWAL, J. :- Rule made returnable forthwith. Heard finally.

2. The petitioner questions legality of order of externment, recorded by respondent No.1 Deputy Commissioner of Police, Zone II, Aurangabad, dated 31.1.2013 and confirmed in appeal by respondent No.2, dated 17.6.2013, externing him for a period of two years, from Aurangabad city, Commissionerate area and district.

3. The petitioner says that he belongs to a good family. Action of externing him based on three crimes, being crime No. 146 of 2009, for offence under section 392 r.w. 34 of I.P.C, crime No. 322 of 2011 for offence under Section 498 r.w. 34 of I.P.C. and crime No. 225 of 2012 for offence under Section 392 r.w. 34 of I.P.C. is excessive in its nature and illegal in character.

4. Mr. Deshpande says, there was no material on record so as to come to the conclusion that action under Section 56(1) (a) and (b) of Bombay Police Act was just. There was no alarming situation in the area to pass orders of externment to curtail his liberty. He has placed reliance to the judgments in the following matters.

i. Balu Shivling Dombe vs. The Divisional Magistrate, Panduarpur, 1968 B.L.R. 79.

ii. Ashok Kashinath Kale vs. Ravindra Jadhav and another, 1983 (2) Bom. C.R. 763.

iii. Kathi Harsur Rukhad vs. State of Gujarat and Ors, 1986 Cri. L. J. 1627 (to point out that notice should state period and place of the acts alleged, for want of such details, notice was held to be vitiated.)

iv. Ram Narayan Patil vs. State of Maharashtra and others, 1987 (1) Bom.C.R. 471, non coming forward of witnesses is not a ground for externment.

v. Kashinath @ Kashya Sitaram Keluskar vs. Deputy Commissioner of Police and others, 2000 ALL MR (Cri) 801, notice stating only in general that acts and movements of petitioner, causing alarm and danger to society without disclosing particular offence called for quashing the order of externment.

vi. In the matter of Vilas Sidharath Sirsat vs. State of Maharashtra and Anr, 2010 ALL MR (Cri) 424, the learned Single Judge recorded that externment from five districts while offences were restricted to only one district, was excessive order and consequently it was set aside.

vii. Nawabkhan Abbaskhan vs. State of Gujarat, 1974 AIR (SC) 1471. In that case there was disobedience of order of externment which resulted in prosecution. The externment order was quashed during pendency of the prosecution and consequently it was observed that the prosecution for disobedience of such order of externment will not survive.

viii. Umar Mohammed Malbari vs. K.P. Gaikwad and Anr., 1988 (2) Bom. C.R. 724 : [2000 ALL MR (Cri) 578], excessive order of externment call for interference in writ jurisdiction.

5. We have carefully gone through the reported judgments. Legal position, in fact, is explained by Supreme Court in the matter of Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of police, AIR 1973 SC 630, wherein on the facts of said case, that externment order was set aside, as it was far wider than justified by the externee of the case. The activities of the externee therein were confined to the city of Pandharpur, yet the externment order covered the area for externment Solapur, Satara and Pune districts. The districts were far wide of the area from the locality in which the externee has committed his illegal act.

6. We have gone through the original files of Assistant Commissioner of Police, Cidco and also of the Deputy Commissioner of Police, Zone-II, including Roznama with available material. The petitioner was given personal hearing. We have perused statements of three independent witnesses. Those three persons are not cited witnesses in the criminal prosecution faced by the writ petitioner. They have depicted the events of extortion occasioned by the petitioner and his associates in the month of May, 2012 and June, 2012 in three localities. The cases referred to above, are from Cidco police station.

7. The situation created by the writ petitioner with his associates was a alarming situation for public at large, including for law and order. There was no change in behavioral pattern of the petitioner even during the period of issuing notice and giving hearing to him. The prosecution cannot be branded to be stale or far stretched. We do not see any illegality or perversity in the order under challenge.

8. On the point of excessive character, one has to follow geographical features of Aurangabad district, Aurangabad City and Aurangabad Commissionerate. There cannot be segregation to Aurangabad district and Aurangabad city as such. The city is vast enough, quick facilities of transport are available and trail of offence, threat to the life of individuals needs to be controlled.

9. We do not accept order of externment is deterrent or excessive or in violation of protection extended under Article 19 of the Constitution of India. The appellate authority has also equally considered available material.

10. Writ petition lacks merit. Rejected. Rule discharged. No costs.

11. The original papers returned.

Petition dismissed.