Allowed

Laxman S/O Rambhaji Thorat v. the Divisional Commissioner and Others

Bombay HC9 Mar 2017WP/197/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and quashed an externment order. The court held the order violated natural justice due to vague, inconsistent in-camera statements and was illegal for being unduly extensive, banning the petitioner from areas distinct from where alleged offences occurred.

What did the court decide?

The externment order dated 06.09.2016 passed in Externment Appeal No.35 of 2016 is quashed and set aside.

Laxman S/O Rambhaji Thorat Vs the Divisional… — Criminal Trial and Appeal | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.197 OF 2017

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Laxman s/o Rambhaji Thorat Age 64 years, Occ. Agri. & vegetable business R/o. 'Jay-Malhar' Nagar, Near Mukundwai Railway Station, Aurangabad

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PETITIONER

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VERSUS

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The Divisional Commissioner, Nashik Division, Nashik.

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The Sub Divisional Police Officer Shirdi Division, Shirdi, Tq. Rahata, Dist. Ahmednagar

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The Sub Divisional Officer Shirdi Division, Shirdi, Tq. Rahata, Dist. Ahmednagar

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RESPONDENTS

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Mr. K. B. Borde, Advocate for the Petitioner Mrs. P.V. Diggikar, APP for the Respondents

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CORAM : S.S. SHINDE AND V. K. JADHAV, JJ.

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DATED : 9^th MARCH, 2017

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ORAL JUDGMENT (PER S.S. SHINDE, J.) : -

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Heard.

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Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

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This Writ Petition is filed by the petitioner, questioning the legality, propriety and correctness of the order dated 6.9.2016 passed by respondent no.1 – Divisional Commissioner, Nashik Division, Nashik in Externment Appeal No.35 of 2016.

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The learned counsel appearing for the petitioner invites our attention to the pleadings/grounds in the Petition, annexures thereto and submits that the alleged activities/offences registered against the petitioner are within the jurisdiction of Rahata Police Station, however, the petitioner is externed from Kopargaon, Rahata, Shrirampur, Sangamner Talukas in Ahmednagar District, Yeola, Sinnar and Niphad Talukas in Nashik and Vaijapur Taluka in Aurangabad District. He submits that the order is excessive inasmuch as the alleged activities of the petitioner are stated within the jurisdiction of the Rahata Police Station, however, the petitioner is externed from the above mentioned other Talukas. He further submits that there is no mention in the show cause notice dated 23.9.2015 as well as in the impugned order that in-camera statements of the witnesses disclose any specific alleged activities committed by the petitioner causing harm or danger to a person or properties. Therefore, relying upon the judgments in the cases of Iqbaluddin Ziauddin Pirzade Vs. The State of Maharashtra and Ors.¹ , Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of

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1 2015 (2) Bom.C.R. [Cri.] 464

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Police & another² , Umar Mohamed Malbari Vs. K.P.Gaikwad, Dy. Commissioner of Police and another³ in the cases of Shafi and Saddam Shoukat Qureshi Vs. Assistant Police Commissioner and others in Criminal Writ Petition No.2032 of 2016, decided on 11.08.2016, Sayeed Firoz Sayeed Noor Vs. State of Maharashtra,⁴ , in the case of Ravindra @ Ravi Harisingh Jadhav in Criminal Writ Petition No.117 of 2015 decided on 09.03.2015 and in the case of Balu Vs. The Divisional Magistrate, Pandharpur⁵ , he submits that, the show cause notice is violative of the principles of natural justice. He further submits that the petitioner did not get an opportunity to explain the allegations made against him. He further submits that there was no sufficient material for arriving at the subjective satisfaction by the respondents before issuing show cause notice and passing the impugned order externing the petitioner from Kopargaon, Rahata, Shrirampur, Sangamner Talukes in Ahmednagar District, Yeola, Sinnar and Niphad Talukas in Nashik and Vaijapur Taluka in Aurangabad District.

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The learned APP appearing for respondent – State relying upon the reasons assigned in the order dated 11.01.2016 passed by the Sub Divisional Officer and the order dated 06.09.2016 passed by the Divisional Commissioner, Nashik Division, Nashik, submits that

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2 1989 (3) Bom.C.R. 240

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3 1988 Mh.L.J. 1034

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4 2016 [1] Bom.C.R. [Cri.] 270.

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5 1969 Mh.L.J. 387

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both the authorities, on the basis of the documents placed on record and the statements of the witnesses, have reached to the correct conclusion and passed the order of externment against the petitioner. Therefore, he submits that the petition may be rejected.

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We have carefully perused the original record of an externment proceedings. The first show cause notice dated 23.09.2015 issued by the SDPO contains that there were two crimes registered against the petitioner in Rahata City Police Station. It further contains that incamera statements of three witnesses, A to C, show that the petitioner, with the help of his companions, causes illegal excavation of sand for sale and on the basis of the money earned therefrom, creates terror in the village. Due to his illegal acts, there has been danger to the lives and properties of the villagers. He is habituated to commit serious offences. Therefore, the witnesses gave statements against him on the condition of non-disclosure of their names. In the second show cause notice dated 09.12.2015, issued by the Sub Divisional Magistrate, Shirdi Division, Shirdi, there is absolutely no mention about the in-camera statements alleged to have been recorded by the SDPO. If the in-camera statements of A to C are compared, it would be clear that they are quite identical. It does not appear to be natural and probable that two persons would state in such a fashion. Moreover, there is no mention in the said statements with regard to the alleged incidents of violence committed by the

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petitioner which created fear in the minds of the villagers. Such vague and general statements cannot be relied on to curtail the liberty of a person to move freely in the area in which he is legitimately entitled to move. In the circumstances, in view of the judgments in the case of Bilal Gulam Rasul Patel Vs. Divisional Magistrate, Thane and others⁶ and in the case of Bajrang Sidaram Jadhav Vs. State of Maharashtra and others in Criminal Writ Petition No.282 of 2013, decided on 23.08.2013, the externment order passed on the basis of such show cause notices, being violative of the principles of natural justice, is liable to be set aside.

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As stated above, the petitioner is alleged to have committed the offence within the local limits of Rahata Police Station only. However, he has been externed from the above mentioned tahsils from Ahmednagar, Nashik and Aurangabad Districts. The impugned order does not contain any justifiable reason to ban entry of the petitioner in other seven tahsils of three Districts. The impugned order of externment ex-facie is harsh and excessive. There is no material on record to show that the petitioner committed any offence in the area of the other seven tahsils, except that of Police Station, Rahata. In the circumstances, in view of the judgment in the case of Rameshkumar @ Ramu Singh s/o Shriram Singh Thakur Vs. State of Maharashtra and another⁷ , the impugned order of externment would

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7 2014 [1] Mh.L.J. [Cri.] 710

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6 2014 All MR [Cri.] 2161

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be unsustainable in law.

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In view of the above facts and circumstances of the case, the externment order dated 06.09.2016, being illegal, is liable to be set aside and accordingly it is set aside with the following order:

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ORDER

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