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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.R. GAVAI, Z.A. HAQ, JJ.
Sagarsingh Kesharsingh Bawari
Vs.
Ministry of Home Department & Ors.
Criminal Writ Petition No. 355 of 2013.
Decided On : 3rd September, 2013.
Externment order, passed by Externing Authority by taking into consideration prosecutions of petitioner under Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, cannot be sustained.
BOMBAY POLICE ACT, 1951 - Section 56 - Order of externment.
Where show-cause notice was issued in respect of one district however externment order was issued in respect of three districts, after 7 months of show-cause notice therefore order of externment not sustainable.
Key Points: - The externment order cannot be based on prosecutions under Bombay Prohibition Act and Maharashtra Prevention of Gambling Act; such considerations vitiate the order [4000446970001]. - Show-cause notice governed the district(s) to be externed; if the order covers more districts than those in the show-cause notice, the order is unsustainable in law [4000446970002]. - The externment order must align with the show-cause notice and cannot travel beyond its content; in this case, the three-district externment exceeded the show-cause notice, making the order unsustainable, leading to quashing of the order [4000446970002][4000446970003]. - The timing between issue of show-cause notice (2.1.2012) and the externment order (almost seven months later) is noted as lacking nexus with the externment order, contributing to unsustainability [4000446970001]. - The petition was allowed; impugned orders quashed; rule absolute in terms of prayer; no costs [4000446970003]. - The appellate authority failed to consider the above aspects and settled law [4000446970001].
Z.A. HAQ, J. :- Rule returnable forthwith. Heard the learned Counsel for the parties.
2. The petitioner challenges the externment order passed by the Sub-Divisional Magistrate and confirmed in appeal by the State by which the petitioner has been externed from the districts of Wardha, Amravati and Yavatmal for two years. A show cause notice was issued on 2.1.2012 asking for the explanation of the petitioner as to why he should not be extemed. The order passed by the Sub-Divisional Magistrate dated 27.8.2012 takes into consideration as many as 26 prosecutions alleged to be pending against the petitioner. The perusal of the impugned orders show that except one prosecution, all other prosecutions are under the provisions of the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887. The prosecution under Sections 326, 324 read with Section 34 is of 2010. The consideration of the prosecutions under the Bombay Prohibition Act and Maharashtra Prevention of Gambling Act, 1887 by the Authority vitiates the impugned order, inasmuch as it is the settled law that for the purposes of passing the extemment order, these prosecutions cannot be taken into consideration. Apart from this, the authority has not given any reason for passing the externment order prohibiting the entry of the petitioner in three districts. In that view of the matter, the impugned order is an excessive order. However, as stated earlier, the show-cause notice is dated 2.1.2012 and the impugned order is passed almost after seven months and, therefore, it has no nexus with the externment order. The Appellate Authority has also failed to consider all these aspects and the settled law.
3. The show-cause notice seeks the explanation of the petitioner as to why he should not be externed from Wardha district. However, the order passed by the authority is in respect of the three districts. It is a settled law that the order cannot travel beyond the show-cause notice and on this ground also, the impugned orders are unsustainable in law.
4. In view of the above, the petition has to be allowed. The impugned orders are quashed. Rule is made absolute in terms of prayer clauses (i) & (ii). There will be no order as to costs.
Ordered accordingly.
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