Ganesh Nilkanth Patil vs Dy. Commissioner of Police and Others

Sadhana S. Jadhav, J.—Rule. Rule returnable forthwith. Heard finally by consent of the parties. The petitioner is hereby impugning the correctness, legality and propriety of the order of externment passed against him by the Deputy Commissioner of Police by an order dated 10th May, 2012 externing him from Thane, Bombay Mumbra and Raigad Districts for a period of one year which is further confirmed by the Principal Secretary, State of Maharashtra by an order dated 4th August, 2012.

On 25th February, 2012, a notice was issued to the petitioner u/s 59(1) of the Bombay Police Act calling upon him to show cause as to why he should not be externed from Thane, Mumbra and other surrounding areas as he was indulging in illegal activities. It was mentioned in the notice that there were four offences registered against the petitioner with the Mumbra Police Station during the period 2010 to 2011 and also Chapter Case No. 10 of 2011 u/s 110 of the Code of Criminal Procedure, 1973 wherein he was released on executing a personal bond. The Petitioner appeared before the said Enquiry Officer and submitted his oral and written reply. The Enquiry Officer forwarded the same to the Externing Authority. By an order dated 10th may, 2012, the Deputy Commissioner of Police, Zone-I, Thane, passed an order of externment against the Petitioner directing him to withdraw himself from Thane, Greater Mumbai, Mumbai Suburbs and Raigad Districts for one year. The order was passed u/s 56(1)(a)(b) of the Bombay Police Act, 1951.

The petitioner had filed an appeal u/s 60 of the Bombay Police Act before the State Government. The Appellate Authority by a judgment and order has upheld the order of externment. However, the period of externment is modified to six months instead of one year. The petitioner has assailed the said order on the following grounds :-

(i) In the show cause notice, the proposed externing authority had shown five offences, including a Chapter Case. However, the Chapter Case was not included in the final order of externment.

(ii) All the offences are registered against the petitioner at Mumbra Police Station.

He has been enlarged on bail. The orders granting bail to the petitioner were not placed before the externing authority and, therefore, sufficient material was not placed before the externing authority before the order of externment was passed.

(iii) All the alleged prejudicial activities of the petitioner are restricted to Mumbra and Mumbra Police within the Thane District, whereas, the petitioner has been externed from Thane, Mumbai Suburban and Raigad Districts for one year. The order is excessive in nature and that the externing authority has exercised powers in excess of his jurisdiction.

We have perused the notice and the impugned orders.

It is a matter of record that all offences registered against the petitioner are pertaining to Mumbra Police Station. There is nothing on record to indicate that the petitioner had indulged into any illegal activities in the close-by districts and no offences are registered against him at any other police stations.

The learned APP submits that since the Bombay Suburban and Raigad Districts are in close proximity to Thane District and, therefore, justifies the order of externment passed against the petitioner. It is further a matter of record that Chapter case which is included in the list of offences in the show cause notice does not find place in the order of externment. The purpose of serving upon the proposed externee a notice to show cause is to afford him a reasonable opportunity of tendering an explanation includes the right of the proposed externee to demonstrate that his activities would not warrant an order of externment. The order of externment does not make any reference to the said Chapter Case.

The Counsel for the petitioner submits that the fact that the bail orders were not placed before the externing authority would show that the said order was a prejudiced order and was not passed on verification of facts. The orders were passed without application of mind.

Although the illegal activities are restricted to Thane District, the petitioner has been externed from Greater Mumbai and Raigad District. The learned APP contends that the show cause notice proposes to extern the petitioner from Thane and neighbouring districts. According to him, Raigad and Greater Mumbai are contiguous to Thane Commissionerate. According to Mrs. Shinde, learned APP, such an order passed against the petitioner is fully justified having regard to the dangerous activities of the petitioner. This contention of the learned APP cannot be taken into consideration. The order of externment is an excessive order which infringes upon the fundamental right of freedom of movement guaranteed under Article 19 of the Constitution of India. An excessive order has necessarily to be struck down because of greater restraint on travel can be permitted than is reasonable in the circumstances of the case. The learned APP further contends that even if it is held that the order is an excessive order, the entire order of externment was not liable to be struck down merely because it covered areas which were excess than what was justified. According to the learned APP, appropriate areas of externment can be substituted with the areas contemplated in the impugned order of externment. There is no merit in the aforesaid contention. We cannot be oblivious of the fact that while issuing a writ, this Court is not acting as an appellate authority. The order of externment cannot be modified as the power and jurisdiction of the Court while issuing writs is limited and the same cannot extend to the powers of an appellate Court. If the judicial or quasi-judicial authority has acted in excess of its jurisdiction, then this Court in writ jurisdiction would be justified in quashing the order passed in excess of jurisdiction and an excessive order cannot be corrected or modified. The very fact that the order passed by the statutory authority is excessive in nature would entitle the petitioner to seek relief of quashing of the whole order. Hence, the Petition deserves to be allowed. The order of externment passed against the petitioner by the Deputy Commissioner of Police by an order dated 10th May, 2012 and confirmed by the Principal Secretary, State of Maharashtra by an order dated 4th August, 2012 are hereby quashed and set aside. Rule is made absolute in terms of prayer clauses (b) and (c).