Allowed

Sanip Devidas Thorat v. the Principal Secretary (Appeals and Hearing )

Bombay HC10 Aug 2010WP/568/2010

Case brief

AI extract

What is this about?

In this writ petition, the High Court of Bombay, Aurangabad bench quashed externment orders issued against the petitioner for three districts despite offences being registered only in one. The court held that the orders were erroneous for ignoring subsequent acquittals and extending externment areas without data on criminal activities in the extra districts.

What did the court decide?

The externment order dated 24th December, 2009 and the appellate confirmation order dated 23rd April, 2010 were quashed and set aside.

Sanip Devidas Thorat Vs the Principal Secretary… — Criminal Trial and Appeal | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.568 OF 2010

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Sandip Devidas Thorat, age 31 years, occ. Business, R/o Tilekar Wasti, Tq. Kopargaon, District Ahmednagar. Petitioner V E R S U S 1. The Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai. 2. The Sub-Divisional Officer, Sangamner, Tq.Sangamner, Dist.Ahmednagar (Copies to be served on A.P.P. High Court of Bombay, Bench at Aurangabad). ..Respondents ..... Mr. P. B. Shirsath, Advocate for petitioner. Mrs. B.R. Khekale, A.P.P. for respondent nos.1 and 2.

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CORAM : SHRIHARI P. DAVARE,J. DATED : 10TH AUGUST, 2010. ORAL JUDGMENT :

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Heard learned counsel for the parties.

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Rule. Rule made returnable forthwith. By consent of

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learned counsel for respective parties, the matter is taken up for final hearing, at the stage of admission.

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By the present Petition filed under Article 227 of the Constitution of India the petitioner prayed that the impugned order dated 23rd April, 2010 passed by the respondent No.1 i.e. Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai in Appeal No.EXT-2010/39/VS-5, thereby confirming the order dated 24th December, 2009 passed by the Respondent No.2 i.e. Sub-Divisional Magistrate, Sangamner Division, Sangamner, Dist.Ahmednagar vide externment order No. EX/SR/2/2009 be quashed and set aside.

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FACTUAL MATRIX :-

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It is the contention of petitioner that he is resident of Kopargaon,

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Tq.Kopargaon, Dist.Ahmednagar and was issued notice dated 15th April, 2009 by the Sub-Divisional Police Officer, Kopargaon, Camp Shirdi, to remove himself from the boundaries of Aurangabad, Nashik and Ahmednagar for the period of one year and directed him to show cause in that respect. It appears that pursuant to said show cause

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notice, petitioner herein filed written arguments on 29.9.2009. It also

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appears that after hearing petitioner’s advocate, the respondent No.2

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passed an order on 24.12.2009 under Section 56(1) (a)(b) of Bombay

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Police Act, 1951 (hereinafter referred to as "the said Act") and directed

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the petitioner not to enter in the boundaries of three Districts namely Ahmednagar, Nashik and Aurangabad for the period of one year and

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copy of the said order is annexed herewith at Exh.A (page 8).

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Being aggrieved and dissatisfied with the said order dated

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24.12.2009, the petitioner herein preferred Appeal

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No.EXT-2010/39/VS-5 under Section 60 of the said Act before the respondent no.1. However, the said appeal was heard and decided by respondent no.1 by passing order on 23rd April, 2010 and thereby

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dismissed the petitioner's appeal and confirmed the order passed by respondent no.2 on 24.12.2009, copy of the said order passed by the Appellate Authority is produced at Exh.B (page 14). It is the contention

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of petitioner that he received copy of the said order dated 23.04.2010 on or about 25.05.2010. Accordingly, being aggrieved and dissatisfied

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by both said impugned orders dated 24.12.2009 passed by respondent no.2 and 23rd April, 2010 passed by respondent no.1 Appellate Authority,

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the petitioner has preferred present Petition for quashment thereof.

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SUBMISSIONS :-

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Learned counsel for petitioner canvassed that the order

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dated 24.12.2009 passed by respondent no.2 discloses that two offences were registered against petitioner, i.e. C.R.No.I-237/2006 and another C.R.No. 128/2007 under Section 379 of the Indian Penal Code and Sections 3 and 15 of the Environment (Protection) Act, 1986, pertaining to Kopargaon Police Station, District Ahmednagar and although he was acquitted from both said crimes on 31.12.2009 and 26.02.2010 respectively and although he had produced certified copies

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of both said judgments of acquittal before the appellate authority, the appellate authority-respondent No.1 did not consider the same in proper perspective and confirmed the order dated 24.12.2009 passed by respondent No.2 arbitrarily and without application of mind thereto.

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Learned counsel for the petitioner also submitted that no offences have been registered against the petitioner in respect of bodily injuries and danger to the society and there is nothing on record

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to show that the behaviour of petitioner is dangerous to the society. It is

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also canvassed that although it is observed in impugned order dated

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23rd April, 2010 passed by the Appellate Authority that behaviour and

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conduct of petitioner is criminal in nature, which comes under Chapter

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16 and 17 of Indian Penal Code, no offence has been registered against the petitioner under Chapter 16 of the Indian Penal Code. Therefore, it is

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canvassed that there is no substance in the allegations made in that respect.

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Learned counsel for petitioner also invited my attention to

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the the aspect that, although above referred offences were registered

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against the petitioner at Kopargaon Police Station, Tq. Kopargaon,

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District Ahmednagar, he has been externed not only from Ahmednagar District but also from Nashik and Aurangabad by way of impugned order dated 24.12.2009 by respondent No.2 which was confirmed by Appellate Authority by order dated 23.4.2010 and accordingly, petitioner has been externed from the District of Nasik and Aurangabad

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without any reason therefor and without showing any data of criminal

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activities of petitioner in the said districts. Hence, it is submitted that the

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said orders have been passed excessively, without any jurisdiction and

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hence, same deserve to be quashed and set aside in toto.

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To substantiate the said contention, learned counsel for

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petitioner relied upon the observations made by the Division Bench of

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this Court in the case of "Umar Mohamed Malbari V/s K.P. Gaikwad Dy.

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Commissioner of Police and another (1988 Mh.L.J. 1034)", which are as

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follows :-

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"Where the activities indulged in by the petitioner were restricted within the Taluka of Bhiwandi within the Thane Commissionerate, the order externing the petitioner out of the Raigad and Nasik Districts which has within them Taluka places at a distance of more than 100 miles is an excessive order and the excessive order had necessarily to be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of the case. It cannot be said that the entire order of externment was not liable to be struck down merely because, it covered areas which were excessive than what was justified and appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. The High Court, when it issues the high prerogative writ of certiorari, it directs the judicial tribunal against which is acting to transmit its record to the Court and if necessary to quash the order which the Tribunal has passed. In issuing the writ the High Court is not to act as a Court of appeal. It is only concerned with the question as to whether the Tribunal exercising judicial or quasi-judicial function has or has not acted without jurisdiction or whether in the exercise of jurisdiction it has acted in excess of jurisdiction. If it has acted in excess of jurisdiction, then the jurisdiction of the High Court is to quash the order passed in excess of jurisdiction. There the power of the High Court stops. It has no power to go further and to correct an excessive order passed by the Authority concerned."

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Learned counsel for petitioner also relied upon the

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observations made by this Court in the case of "Punjaji Dagdu Gaikwad

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V/s State of Maharashtra and others" {2001(3) Mh.L.J. 926}, wherein it is observed that “an excessive order can undoubtedly be struck down because no greater restraint on personal liberty can be permitted than

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is reasonable in the circumstances of the case. Nevertheless, it was pointed out that the larger area may conceivably have to be comprised within the externment order so as to isolate the externee from his moorings. However, for that purpose data is required. In the case under consideration, there does not appear to be any such data with relation to the five districts from where also the petitioner has been externed along with the area of the activities i.e. district Buldana. Therefore, the impugned order suffers from the vice of excessive externment from the five districts in respect of which no data was placed and the entire externment order is liable to be quashed.”

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Accordingly, learned counsel for petitioner submits that the impugned orders dated 24.12.2009 and 23.04.2010 are bad in law and not tenable in law, since they have been passed excessively, without application of mind and therefore, same deserve to be quashed and set aside.

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Learned A.P.P. for respondent nos.1 and 2 opposed

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present petition vehemently and submitted that impugned order dated 24.12.2009 was passed by respondent No.2, after following due procedure prescribed under the Police Act and after issuance of show cause notice to the petitioner. It is also submitted that order dated 24.12.2009 passed by respondent No.2, as well as impugned order dated 23.4.2010 passed by respondent No.1, appellate authority are reasoned and proper orders and same are based upon sound footing of law and therefore, no interference therein is warranted.

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Learned APP also pointed out that petitioner was acquitted from CR No.237/2006 on 31.12.2009 and also from CR No. 128/2007 on 26.2.2010, after passing the impugned order dated 24.12.2009 by respondent No.2 and therefore although copy of said acquittal orders were produced before the Appellate Authority, same could not be considered while passing impugned order dated 23.4.2010 by respondent No.1.

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Learned APP further canvassed that two cognizable

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offences were registered against petitioner of similar nature i.e. theft of

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sand which affects the environment of the area and the sand which is

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lifted amounting to theft by the petitioner from Godavari river bed, and

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the said river flows from three districts i.e. Ahmednagar, Nashik and Aurangabad. Godavari river is border of the said three districts and therefore, it is submitted that the externment order passed by the Sub-

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Divisional Magistrate, Sangamner i.e respondent No.2 to extern petitioner from these three districts is just, legal and proper and no interference therein is warranted in the writ jurisdiction.

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It is further submitted by respondents that petitioner is

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engaged in commission of offences involving force and violence under Chapter 16 and 17 of the Indian Penal Code and petitioner's behaviour is dangerous and causing harm to the persons and property of State,

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and therefore, nobody will come forward to give complaint against petitioner. Hence, considering all these aspects, it is submitted that the respondent No.2 i.e. Sub-Divisional Magistrate has rightly passed externment order which is legal, proper and reasoned one and same

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was rightly confirmed by the respondent No.1 State Government in appeal and said orders cannot be faulted with. Hence, it is submitted that present Petition bears no substance, same is devoid of any merits

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and therefore same be dismissed.

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CONSIDERATION :-

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I have perused impugned orders dated 24.12.2009 passed

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by respondent No.2 as well as dt. 23.4.2010 passed by respondent No.1

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and heard learned respective counsel for the parties as well as gave thoughtful consideration to the observations made in the Rulings cited by learned counsel for petitioner. At the outset, there is no dispute that petitioner was acquitted from C.R. No.I-237/2006 and C.R. No.I-128/2007

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by judgment and order dated 31.12.2009 and 26.02.2010, respectively and certified copy thereof were produced before the appellate

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authority before passing the impugned order dated 23.4.2010 by respondent No.1, but no cognizance of said acquittal was taken by the appellate authority, contending that said acquittals were after passing

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the impugned order dated 24.12.2009 by respondent No.2, and it was

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incumbent upon the appellate authority i.e. respondent No.1 to take

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due and proper cognizance of the said acquittals of the petitioner

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while passing impugned order dated 23.4.2010 but so was not done and

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therefore, impugned order dated 23.4.2010 appears to have been

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passed arbitrarily and erroneously and therefore, same is liable to be quashed and set aside on the said count, itself.

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Moreover, impugned order dated 24.12.2009

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discloses that C.R. No.I-237/2006 and I-128/2007 were registered against petitioner under Sections 3/15 of the Environment (Protection) Act and

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under sections 379 of Indian Penal Code respectively and it is apparent

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that both the said offences were registered against the petitioner, with

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Kopargaon Police Station, Dist.Ahmednagar. However, by impugned order dated 24.12.2009, petitioner herein was not only externed from

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District Ahmednagar but was also externed from two other districts i.e.

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Nashik and Aurangabad and apparently, there is no justification for externing petitioner from other two districts i.e. Nashik and Aurangabad

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since more particularly, when no data has been placed by the respondents in respect of the alleged criminal activities of the petitioner in the said two districts i.e. Nashik and Aurangabad. In the said context,

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it is submitted the allegations made against petitioner therein are in

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respect of theft of sand which is being lifted by him from Godavari river

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bed and Godavari river flows from three districts, and therefore, petitioner was externed from the said three districts i.e. Ahmednagar,

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Nashik and Aurangabad. However, as mentioned herein above, no

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data of the alleged criminal activities of petitioner of theft of sand from

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bed of Godavari river in other two districts i.e. Nashik and Aurangabad,

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has been produced by the respondents and and therefore, externment

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order passed by respondent no.2 externing petitioner beyond Ahmednagar district i.e. from District of Nashik and Aurangabad is excessive in jurisdiction, and therefore, in the circumstances, the entire externment order itself passed by respondent no.2 on 24.12.2009 and

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confirmation thereof by Appellate Authority i.e. respondent no.1 by order dated 23rd April, 2010 deserves to be quashed and set aside

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relying upon the observations made in the aforesaid Rulings (cited

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supra).

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Besides that, although the apprehension is posed that petitioner is involved under Chapters 16 and 17 of the Indian Penal Code, learned counsel for petitioner pointed out that no offence has been registered against petitioner under Chapter 16 of the Indian Penal Code, and therefore, the apprehension posed by learned A.P.P. for

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respondents bears no substance.

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In the light of the aforesaid factual and legal position, I am of the view that the impugned orders are erroneous and unsustainable

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and therefore, I am inclined to accept the submissions advanced by

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learned counsel for petitioner and hence, present Petition succeeds

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and the above referred impugned orders dated 24th December, 2009

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passed by respondent no.2 and dated 23rd April, 2010 passed by respondent no.1 deserve to be quashed and set aside since this is fit case to exercise extra ordinary jurisdiction under Article 227 of the

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Constitution of India.

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In the result, present Petition is allowed in terms of prayer clause `b' thereof and the order dated 23rd April, 2010 passed by the respondent No.1 i.e. Principal Secretary (Appeals & Hearing), Home Department, State of Maharashtra, Mantralaya, Mumbai in Appeal No.EXT-2010/39/VS-5 thereby confirming the order dated 24th December, 2009 passed by the respondent No.2 i.e. Sub-Divisional Magistrate, Sangamner Division, Sangamner, Dist.Ahmednagar vide

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externment order No.EX/SR/2/2009, stand quashed and set aside. Rule is made absolute in the aforesaid terms.

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( SHRIHARI P. DAVARE )

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JUDGE

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aaa/568.10

Sanip Devidas Thorat v. the Principal Secretary (Appeals and Hearing )

Case brief

What is this about?

What did the court decide?

Sanip Devidas Thorat v. the Principal Secretary (Appeals and Hearing )

Case brief

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What did the court decide?

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