An externment order based on grounds not mentioned in the show cause notice is liable to be set aside.

JUDGMENT - R.S. MOHITE, J.:---The learned A.P.P. states that the Principal Secretary, (Appeal and Security) to the Government of Maharashtra, Home Department, dismissed the appeal on the ground that the period of externment came to an end on 20-12-2000 and that the order of externment is no longer operating. It appears that the petition came to be filed because, according to the petitioner, the externee was not served with a copy of the appellate order. Had he been served with the copy of this order, probably the petitioner would not have filed this petition at all. Unfortunately the appellate order is also not annexed along with the reply, but is tendered across the Bar. The same is taken on record and marked 'X' for identification. In view of this order, a decision in this petition has become academic.

2. The learned Senior Counsel appearing for the petitioner states that nonetheless, he wishes to pursue the matter on merits because there is a stigma caused on the externee by the impugned order.

3. The first point he has raised is that one of the grounds upon which the externment order is based is that the applicant, suspected that some of the residents of Manas Chowk, Model School, Sitabuldi Police Station area, Cotton Market, Jayshree Talkies, Ganeshpeth and adjoining areas are giving information to the police about his illegal activities and because of such suspicion, he is assaulting such residents and shopkeepers from such areas and by showing a knife and giving threats of assault, has created terror. The contention is that this ground was not mentioned in the show cause notice. He has placed reliance upon a judgment of the Division Bench of this Court in the case of (Khairunisa Mohamed Suleman Sayyed v. The Sub-Divisional Magistrate, Miraj and another)1, reported in 1987(1) Bom.C.R. 427, in which it has been held that an order passed on material which was not disclosed in show cause notice is liable to be set aside.

4. The learned A.P.P., by way of reply to this contention, drew my attention to para 4(a), (b) (d) of the show cause notice. These paragraphs refer to specific incidents, after the commission of which the applicant is alleged to have given a threat to the victim about not filing a report in the Police Station. The learned A.P.P. contended that this amounted to giving a threat to the victim not to give information to the police.

5. In my opinion, the argument of the applicant is well founded and the explanation given on behalf of the respondent is not acceptable. A situation where a person assaults another on a suspicion that the person is a police informer is completely different situation from one where a person assaults another and then informs him not to give a police report. In the former, the assault follows the suspicion of a person being a police informer whereas in the latter situation, threat follows the assault. This ground, which is made part of the basis for issuance of the externment order is thus not to be found in the show cause notice and in my opinion, this would vitiate the externment order. On this ground alone, the petition would succeed and it would not be necessary to refer to other contentions sought to be raised on behalf of the petitioner.

6. In the circumstances, Rule is made absolute in terms of prayer (a).

Petition succeed.

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