Bombay High Court

DILIP ASHOK JADHAVversusSTATE OF MAHARASHTRA AND ORS.

Disposal: Disposed Off
Bench: NITIN B SURYAWANSHI

Holding

The ex‑parte externment order under Section 163(2) BNSS Act is quashed as it was passed without notice, without material, and in violation of natural justice and proportionality.

Summary

Dilip Ashok Jadhav, a member of the Indian National Congress, challenged an order by the Sub‑Divisional Magistrate that externed him from Karveer Taluka from 3‑10 February 2026 under Section 163(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, to prevent him from campaigning in a Zilla Parishad election where his relative was a candidate. The petitioner argued that the ex‑parte order was arbitrary, violated his fundamental rights and natural justice because no notice was served and no material was placed before the magistrate. The respondents relied on the emergency provision of Section 163(2) and cited the Supreme Court’s decision in Anuradha Bhasin v. Union of India. The Court held that the power to issue ex‑parte orders must be exercised only in genuine emergencies with sufficient material, and that the order lacked any such justification and breached principles of proportionality and natural justice. Consequently, the Court quashed the externment order and allowed the writ petition.

Issues considered

What is the validity of an ex‑parte externment order under Section 163(2) of the BNSS Act when no notice or material is provided?
Does the order infringe the petitioner's fundamental rights and the principles of natural justice?
Is the power under Section 163(2) analogous to Section 144 Cr.P.C. and subject to the same proportionality and reasonableness requirements?

Legislation cited

Bharatiya Nagarik Suraksha Sanhita — s. 163(2)
Bharatiya Nyaya Sanhita, 2023 — s. 126(2)
Code of Criminal Procedure, 1973 — s. 144
Maharashtra Police Act, 1951 — s. 110, 111, 135

Subjects

ex‑parte order
externment
natural justice
fundamental rights
election campaigning
public tranquility
proportionality
Section 163 BNSS Act
Section 144 Cr.P.C.

Judgment

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906-WP-49-2026.DOC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 49 OF 2026

Dilip Ashok Jadhav ….Petitioner
VERSUS
1. State Of Maharashtra
2. The District Collector & District Magistrate,
Kolhapur.
3. The Sub-Divisional Magistrate,
Karveer Sub-Division, Kolhapur.
4. The Police Inspector, Karveer Police Station,
Kolhapur. ....Respondents

-----
Mr. Kunal Patil i/b Mr. Rajnandani Katkar and Adv. A. J. Sarvarmulla,
Digitally
signed by
SHANTANU
SHANTANU SHANKARSA
SHANKARSA DHUDUM
DHUDUM Date:
for Petitioners.
2026.02.09
10:54:33
+0530
Mr. Anand Subhash Shalgaonkar, APP, for the Respondent-State in all
petitions.
-----

CORAM : NITIN B. SURYAWANSHI, J.
DATE : 6th FEBRUARY, 2026.
ORAL JUDGMENT.

1. Rule. Rule made returnable forthwith.

2. Heard finally with the consent of the parties.

3. By this petition, the Petitioner challenges the order issued by

Respondent No.3 under Section 163(2) Bharatiya Nagarik Suraksha

Sanhita, 2023, (for short, “BNSS Act”), thereby externing the

Petitioner from Karveer Taluka from 3rd February, 2026 till 10th

Shantanu S. Dhudum
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906-WP-49-2026.DOC

February, 2026, i.e. the period during which the Zilla Parishad

Elections are scheduled.

4. The Petitioner is member of Indian National Congress Party.

The Petitioner’s relative namely, Sangram Gopal Patil is contesting

Zilla Parishad Election from Pachgaon Constituency, Taluka: Karveer,

District: Kolhapur on the ticket of Indian National Congress Party. The

Petitioner is prohibited from campaigning during the on going Zilla

Parishad Election. According to the Petitioner this action of

externment is arbitrary and it is in violation of Petitioner’s

fundamental rights.

5. Learned APP, on instructions, from the police officer of the

concerned police station submits that the action of the Respondent

No.3 is justified in view of sub-section 2 of Section 163 of the BNSS

Act. In support of his submissions, he relied on the decision of the

Hon’ble Apex Court in case of Anuradha Bhasin Vs. Union of India

and Ors. in Writ Petition (Civil) No.1031 of 2019.

6. Heard learned advocate for the Petitioner and learned APP

for the Respondent – State at length. Perused the impugned order.

7. In the impugned order a reference of report of Respondent

No.4 dated 23rd January, 2026 is given. It is also mentioned that

Crime No.0509 of 2025 under Sections 135, 111, 110 of the

Maharashtra Police Act, 1951 and 126(2) of the Bharatiya Nyaya

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906-WP-49-2026.DOC

Sanhita, 2023 (for short, “BNS Act”) is registered against Petitioner.

The impugned order refers to report of Respondent No.4 dated 23 rd

January, 2026. It is further mentioned that it is necessary to extern

the Petitioner and prohibit him from entering into Karveer Taluka for

the period from 3rd February, 2026 to 10 th February, 2026, except two

hours for voting.

8. Admittedly, no notice was issued to the Petitioner before

passing the impugned order. The copy of the report of Respondent

No.4 dated 23rd January, 2026 is also not made available to the

Petitioner. Zilla Parishad Election program is declared on 13 th January,

2025. Since then, Respondent No.4 had sufficient time for calling

upon the Petitioner to show cause as to why the proposed action

should not be taken against him. Since the impugned order is passed

in flagrant violation of principles of natural justice, the same is

unsustainable on that ground alone.

9. Learned APP has relied on sub-section 2 of Section 163 of

the BNSS Act read thus:

“163. Power to issue order in urgent cases of nuisance
or apprehended danger..
(1) In cases where, in the opinion of a District
Magistrate, a Sub-divisional Magistrate or any
other Executive Magistrate specially empowered
by the State Government in this behalf, there is
sufficient ground for proceeding under this
section and immediate prevention or speedy
remedy is desirable, such Magistrate may, by a

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906-WP-49-2026.DOC

written order stating the material facts of the
case and served in the manner provided by
Section 153, direct any person to abstain from a
certain act or to take certain order with respect to
certain property in his possession or under his
management, if such Magistrate considers that
such direction is likely to prevent, or tends to
prevent, obstruction, annoyance or injury to any
person lawfully employed, or danger to human
life, health or safety or a disturbance of the
public tranquility, or a riot, or an affray.
(2) An order under this section may, in cases of
emergency or in cases where the circumstances
do not admit of the serving in due time of a
notice upon the person against whom the order is
directed, be passed ex-parte.”

10. Though, sub-section 2 of Section 163 of the BNSS Act

permits for passing of the ex-parte order, the said power has to be

exercised only in deserving cases, where there is material to justify

the apprehension of Respondent No.4 about disturbance of public

tranquility by the Petitioner. Only, in such cases as an emergent

measure of ex-parte order can be passed.

The Petitioner is not habitual criminal and there are no

criminal antecedents against him and only one offence is registered

against him earlier. There has to be some foundation and/or material

with the Externing Authority to arrive at the conclusion that ex-parte

externment order needs to be passed in the case.

Learned APP could not point out any relevant material

justifying the action of Respondent No.4 of passing ex-parte

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externment order. Therefore, there is absolutely no material to justify

passing of the impugned order ex-parte.

It is thus clear that the apprehension expressed by

Respondent No.4 in the present case is ill founded, misplaced and

misconceived, and hence, the impugned order is unsustainable in law

and facts of the present case.

11. In Anuradha Bhasin (supra), the Hon’ble Apex Court has

summarized legal position in respect of Section 144 of Cr.P.C.. It is

held that ex-parte externment order can be passed. It is also held

that:

I. The power under Section 144, Cr.P.C., being
remedial as well as preventive, is exercisable not
only where there exists present danger, but also
when there is an apprehension of danger. However,
the danger contemplated should be in the nature of
an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person
lawfully employed.
II. The power under Section 144, Cr.P.C. cannot be used
to suppress legitimate expression of opinion or
grievance or exercise of any democratic rights.
III. An order passed under Section 144, Cr.P.C. should
state the material facts to enable judicial review of
the same. The power should be exercised in a bona
fide and reasonable manner, and the same should
be passed by relying on the material facts, indicative
of application of mind. This will enable judicial
scrutiny of the aforesaid order.
IV. While exercising the power under Section 144,
Cr.P.C. the Magistrate is duty bound to balance the
rights and restrictions based on the principles of
proportionality and thereafter apply the least
intrusive measure.

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906-WP-49-2026.DOC

12. It is further held that, whenever there is apprehension of

danger preventive action can be taken under the said Section. There

cannot be any dispute about the aforesaid proposition, however, to

justify the apprehension of danger to human life, health of safety or a

disturbance of the public tranquility, or a riot, or an affray, there has

to be some material before the Externing Authority, which is totally

absent in the present matter.

13. Applying the aforesaid ratio, it is clear that the impugned

order is passed contrary to the aforesaid principles, and therefore, it

cannot be sustained.

14. For the aforesaid reasons, Criminal Writ Petition is allowed.

The impugned order dated 31 st January, 2026 passed by Respondent

No.3 - The Sub-Divisional Magistrate, Karveer Sub-Division, Kolhapur

is hereby quashed and set aside.

15. Learned APP shall forthwith intimate this order to the

Respondents.

16. Rule is made absolute in the above terms.

(NITIN B. SURYAWANSHI, J.)

Shantanu S. Dhudum

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