Allowed

Kailas Devram Kolpe v. the Divisional Commissioner and Others

Bombay HC6 Mar 2017WP/198/2017

Case brief

AI extract

What is this about?

This Criminal Writ Petition challenged the externment order dated 30.09.2016 which barred the petitioner from multiple talukas beyond the jurisdiction of his alleged offenses. The High Court held that the order violated natural justice and was disproportionate, setting it aside.

What did the court decide?

The impugned externment order dated 30.09.2016 in Externment Appeal No.42/2016 is quashed and set aside. Rule made absolute.

Kailas Devram Kolpe Vs the Divisional… — Constitutional and Fundamental Rights | Bombay HC (2017)

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198.2017Cri.WP.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.198 OF 2017

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Kailas Devram Kolpe,
Age 35 years, Occu. At Present Nil,
R/o. C/o. Navnath Devram Shelke,
Shubham Park, Flat No.8, A-Wing,
4th Floor, Near Bombay Naka,
Pawan Nagar Road, Nashik.

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PETITIONER

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VERSUS

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1. The Divisional Commissioner, Nashik Division, Nashik.

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

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

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 RESPONDENTS

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...

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Mr.K.B.Borde, Advocate for the Petitioner
Ms.P.V.Diggikar, APP for the Respondent/State

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...

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CORAM: S.S.SHINDE &

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K.K.SONAWANE,JJ.

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Reserved on : 28.02.2017
 Pronounced on : 06.03.2017

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JUDGMENT: (Per S.S.Shinde, J.):

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1. Heard.

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2. Rule. Rule made returnable

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198.2017Cri.WP.odt

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forthwith, and heard finally with the consent
of the parties.

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3.This Writ Petition is filed by the
petitioner,questioningthelegality,

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propriety and correctness of the order dated
30th September, 2016 passed by respondent no.1
– Divisional Commissioner, Nashik Division,
Nashik in Externment Appeal No.42/2016.

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4.The learned counsel appearing for

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the petitioner invites our attention to the
pleadings/grounds in the Petition, annexures

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thereto and submits that the alleged
activities/offences registered against the
petitioner are within the jurisdiction of

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Kopargaon Police Station, however, the
petitioner is externed from Ahmednagar

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District, Yeola, Sinnar and Niphad Talukas in
Nashik and Vaijapur Taluka in Aurangabad

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District. He submits that the order is
excessive inasmuch as the alleged activities

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198.2017Cri.WP.odt

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of the petitioner are stated within the
jurisdiction of the Kopargaon 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 8th March, 2016 as well as

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in the impugned order that in-camera
statement of the witness disclosed any
specific allegedly activities committed by

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the petitioner causing harm or danger to a
person or properties. Therefore, relying upon

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the judgments in the cases of Iqbaluddin Ziauddin Pirzade Vs. The State of Maharashtra

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and Ors.¹ , Yeshwant Damodar Patil Vs. Hemant Karkar, Dy. Commissioner of Police & another² , Umar Mohamed Malbari Vs.

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K.P.Gaikwad, Dy. Commissioner of Police and

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another³ in the cases of Shafi and Saddam

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Shoukat Qureshi Vs. Assistant Police Commissioner and others in Criminal Writ

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

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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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198.2017Cri.WP.odt

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Petition No.2032 of 2016, decided on 11.08.2016, Sayeed Firoz Sayeed Noor Vs.

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State of Maharashtra ,⁴ , in the case of Ravindra @ Ravi Harisingh Jadhav in Criminal Writ Petition No.117 of 2015 decided on

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09.03.2015 and in the case of Balu Vs. The Divisional Magistrate, Pandharpur⁵ , he

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submits that , the show cause notice is violative of the principles of natural justice. He further submits that the

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petitioner did not get an opportunity to
explain the allegations made against him. He
further submits that there was no sufficient

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material for arriving to the subjective
satisfaction by the respondent no.2 before
issuing show cause notice and passing the
impugned order externing the petitioner from
Ahmednagar District, Yeola, Sinnar and Niphad
Talukas in Nashik and Vaijapur Taluka in
Aurangabad District.

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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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198.2017Cri.WP.odt

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5.The learned APP appearing for

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respondent – State relying upon the reasons
assigned in the order dated 30.06.2016 passed
by the Sub Divisional Officer and the order
dated 30.09.2016 passed by the Divisional
Commissioner, Nashik Division, Nashik,
submits that both the authorities, on the
basis of the documents placed on record and
the statement of the witness, 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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6.We have carefully perused the

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original record of an externment proceedings.
The first show cause notice dated 08.03.2016

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issued by the SDPO contains that there were
six crimes registered against the petitioner
in Kopargaon City Police Station. It further
contains that in-camera statement of one
witness i.e. A, shows that the petitioner,

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198.2017Cri.WP.odt

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with the help of his companions, causes

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illegal excavation of sand for sale and on
the basis of the money acquired therefrom,

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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.

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Therefore, the witness gave statement against
him on the condition of non-disclosure of his
name. In the second show cause notice dated

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27.04.2016, issued by the Sub Divisional
Magistrate, Shirdi Division, Shirdi, there is
absolutely no mention about the in-camera

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statement alleged to have been recorded by
the SDPO. There is no mention in the said
statement with regard to the alleged
incidents of violence committed by the
petitioner which created fear in the minds of

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the villagers. Such vague and general
statement cannot be relied on to curtail the

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liberty of a person to move freely in the

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198.2017Cri.WP.odt

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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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7.As stated above, the petitioner is
alleged to have committed the offence within
the local limits of Kopargaon 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
tahsils. The impugned order of externment ex-

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6 2014 All MR [Cri.] 2161

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198.2017Cri.WP.odt

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facie is harsh and excessive. There is no

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material on record to show that the
petitioner committed any offence in the area
of the other tansils, excepting that of
PoliceStation,Kopargaon.Inthe

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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 be unsustainable in law.

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circumstances of the case, the externment
order dated 30th September, 2016, being

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illegal, is liable to be set aside and
accordingly set aside with the following
order:

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(i) Criminal Writ Petition is allowed.

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(ii) The impugned order of externment dated 30^th September, 2016, passed in

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

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198.2017Cri.WP.odt

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Externment Appeal No.42/2016, is
quashed and set aside.

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(iii)Rule is made absolute in the above
terms.

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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Kailas Devram Kolpe v. the Divisional Commissioner and Others

Case brief

What is this about?

What did the court decide?

Kailas Devram Kolpe v. the Divisional Commissioner and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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