1. Heard Shri Kasat, Advocate for the petitioner and Shri Patel, Additional Public Prosecutor for the respondent – State.
2. The petitioner has filed this writ petition for quashing and setting aside the order of externment passed by the Sub-Divisional Magistrate, Achalpur on 16-9-2002, externing him from Yavatmal, Wardha, Nagpur and Akola districts, for a period of one year commencing from 16-9-2002 till 15-9-2003.
3. The brief facts of the case are as under:
(a) That on 10-1-2002, the Sub-Divisional Magistrate, Achalpur, issued a show cause notice to the petitioner by which he informed the petitioner that he had received a report dated 2-1-2000 from the Sub-Divisional Police Officer, seeking the externment of the petitioner from Amravati district to Yavatmal or Akola districts. The notice then mentioned six offences which had been registered against the petitioner and which were as follows :
(i) Crime No. 169 of 1996 registered for the alleged offence under Sections 147, 148, 149, 448, 323 and 427 of Indian Penal Code on 6-10-1996 and the subject matter of Criminal Case No. 159 of 1996.
(ii) Crime No. 120 of 1997 registered for the alleged offence under Section 324 of Indian Penal Code on 30-8-1997 and the subject matter of Criminal Case No. 145 of 1997.
(iii) Crime No. 181 of 1997 registered for the alleged offence under Sections 326 and 448 read with Section 34 of Indian Penal Code on 18-9-1997 and the subject matter of Criminal Case No. 279 of 1997.
(iv) Crime No. 3112 of 1998 registered for the alleged offence under Sections 294 and 506 on 29-12-1998 and the subject matter of Criminal Case No. 1066 of 1998.
(v) Crime No. 3092 of 1999 registered for alleged offence under Sections 294, 506 and 504 read with Section 34 of Indian Penal Code in which the police investigation was pending.
(vi) Crime No. 3093 of 1999 registered for the alleged offence under Sections 294, 506 of Indian Penal Code and Sections 112 and 117 of the Bombay Police Act in which the police investigation was pending.
(b) After giving the bare details of the cases as aforesaid, the show cause notice called upon the petitioner to show cause as to why he should not be externed from Amravati to Akola or Yavatmal districts and called him upon to file his written say within three days.
(c) The petitioner filed his reply on 12-10-2001 in which he dealt with each of the individual cases. Insofar as Crime No. 169 of 1996, which was subject matter of Criminal Case No. 159 of 1996 was concerned, he contended that the same was not filed against the petitioner. He contended that Criminal Case No. 120 of 1997 has been compromised between the parties on 15-10-2000 and the petitioner had been acquitted in the said case. He contended that insofar as Crime No. 181 of 1996 was concerned, the Criminal Case No. 279 of 1997 was not against the present petitioner. Insofar as Crime No. 3112 of 1998 was concerned, he stated that it had been decided by the J.M.F.C. Chandur Bazar and the petitioner had been acquitted. He claimed that in Crime Nos. 3092 of 1998 and 3093 of 1998, he had already been acquitted. He contended that he had been falsely involved due to political rivalry and at the behest of the B.J.P. group, which was inimical towards him. He contended that he had not committed any offences mentioned in Chapters 12, 16 and 17 of the Indian Penal Code and that there was no evidence to show that the witnesses were not coming forward to give evidence or there was any apprehension to the life of the people in the locality or there was any danger to the property of other persons. He stated that there was no offence against the petitioner under Maharashtra Prevention of Communal Antisocial and other Dangerous Activities Act, 1980 or under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act. He stated that the police has prepared a false case against the petitioner with the help of other persons who had rivalry against the petitioner. He stated that no case has been made out for externment of the petitioner. The petitioner undertook that he would not commit any offence due to which the life of other persons would be in danger or due to which the property of any of the people would be harmed. He prayed that the case for externment be dismissed.
(d) By an order dated 16-9-2002, the Sub-Divisional Magistrate, Achalpur, passed an impugned order externment. While doing so, he relied upon the aforesaid six cases mentioned in the show cause notice and showed all of them are pending before the Courts. In addition to the aforesaid six cases, he relied upon three additional cases initiated by Chandur Bazar police station being Crime No. 324 of 1996 registered under Sections 106 and 116(3) of Indian Penal Code; Crime No. 252 of 1997 registered under Sections 107 and 116(3) of Indian Penal Code; and Crime No. 48 of 1999 registered under Section 110(e), (g) of Indian Penal Code. The impugned order also referred to an additional report which had been forwarded by the Police Officer, Chandur Bazar, vide his report dated 18-1-2002 wherein the petitioner was said to be involved in the commission of offence under Sections 143, 447, 341 of Indian Penal Code and Section 135 of Bombay Police Act and Section 70 of the Criminal Law Amendment Act. This offence was said to have been committed on 26-11-2001. There was also mention in the order that the offences were of serious nature and that there was a grave likelihood of breach of peace and public order. Based on such material, the Sub-Divisional Magistrate, Achalpur, passed an order externig the petitioner from Yavatmal, Wardha, Nagpur and Akola districts for a period of one year i.e. from 16-9-2002 till 15-9-2003.
(e) On 24-9-2002, the petitioner has filed the present criminal writ petition impugning the order of externment. By order dated 8-10-2002 rule was issued in the matter and ad interim stay was granted by this Court which is in operation even till today.
4. At the outset, the Advocate for the petitioner stated that he had filed this writ petition without filing an appeal. He drew my attention to a Division Bench judgment of this Court in the case of Umar Mohamed Malbari v. K.P. Gaikwad, Deputy Commissioner of Police, reported in 1988 Mh.LJ. 1034, in which case this Court has taken a view that since the fundamental right of freedom of movement of the petitioner is affected due to passing of externment order, the existence of alternate remedy of appeal is no bar to challenge the order of externment by directly filing a writ petition. He submitted that the Court has discretion to entertain a writ petition directly. In the present case, since the criminal writ petition has been admitted after hearing both sides long ago, at this stage, I am not inclined to exercise my discretion in dismissing the petition merely on the ground that there exists an alternate remedy of appeal.
5. The submissions made by the petitioner can be categorized as follows:
(a) That the final order was passed on the basis of material which was not disclosed in the show cause notice. He drew my attention to three Chapter cases and one additional case which was mentioned in the final order. In this connection, he relied upon the decision of this Court in the case of Smt. Khairunisa v. Sub-Divisional Magistrate, . He contended that it was laid down in the aforesaid case that if in the show cause notice no opportunity is given to the externee to explain the offences, which are relied upon in the final order of externment then the order of externment must stand vitiated.
(b) He further contended that neither in the show cause notice nor in the impugned order, there was any material to show that Externing Authority has formed an opinion that the witnesses were not coming forward to give evidence as it was mandatory requirement under Section 56(1)(b) of the Bombay Police Act, 1951.
6. Shri Patel, Additional Public Prosecutor fairly conceded that the additional material which has been relied upon in the impugned order was not disclosed to the petitioner and no opportunity was given to the petitioner to explain the additional offences. He agreed that there was nothing to indicate that the Externing Authority had formed an opinion that the witnesses are not coming forward to give evidence.
7. In my opinion, the impugned order is required to be set aside. Both the submissions made by the advocate for the petitioner appears to be well founded and the petition is required to be allowed on the footing that the externment order was passed on material which was not disclosed to the petitioner and no opportunity was given to the petitioner to explain the offences. The petition is also required to be allowed on the footing that the fact that the Externing Authority has formed an opinion that the witnesses are not coming forward was not expressed in the show cause notice or in the impugned order. I may state that the vague allegations are made that there was likelihood of breach of peace and public order but even this was not informed to the petitioner in the show cause notice and no opportunity was given to him to explain such an allegation.
8. In the circumstances, criminal writ petition succeeds. The same is allowed in terms of prayer Clause (a). Rule is made absolute accordingly.