1 wp649.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.649 OF 2015
Sheikh Jafar s/o Sheikh Jabbar,
aged about 33 years,
occupation : business,
r/o Namuna Galli No.5,
Amravati, Tahsil and District
Amravati. ig ... Petitioner
- Versus -
1) The State of Maharashtra,
through Principal Secretary,
Ministry of Home Department,
Mantralaya, World Trade Centre,
Cuffe Parade, Mumbai-400 005.
2) The Divisional Commissioner,
Amravati Division, Amravati,
Office at Camp, Amravati,
Taluq and District Amravati.
3) Deputy Commissioner of Police,
Zone-2, Amravati,
Taluq and District Amravati. ... Respondents
-----------------
Shri A.A. Naik, Advocate and Shri P.R. Agrawal,
Advocate for petitioner.
Shri S.M. Ukey, Additional Public Prosecutor for
respondents.
----------------
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2 wp649.15
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : OCTOBER 12, 2015 ORAL JUDGMENT (PER B.P.DHARMADHIKARI, J.) :
Rule returnable forthwith. Heard finally by consent of Adv. Naik with Adv. Agrawal for petitioner and Shri Ukey, learned Additional Public Prosecutor for respondents. Perused the papers.
2) Challenge is to an order of externment dated 29/4/2014 passed by respondent no.3 Deputy Commissioner of Police and appellate order dated 4/8/2015 passed by respondent no.2 Divisional Commissioner.
3) Facts show that initially a notice for proposed externment was issued on 4/9/2013 under Section 56(1)(a) and (b) of Maharashtra Police Act, 1951. That notice while mentioning criminal background of petitioner takes note of six offences registered at Nagpuri Gate and Kotwali Police Stations at Amravati ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 3 wp649.15 and one offence registered at Police Station, Pandharkawda District Yavatmal. It also points out preventive action under Section 110 of Criminal Procedure Code taken against him on 1/5/2012 and 7/11/2012. It is mentioned that because of fear and his conduct, witnesses were not forthcoming. It was replied to by the petitioner and on 12/12/2013, competent Authority, namely, Deputy Commissioner of Police, Zone-II, Amravati dropped the action. He observed that if any offence was registered thereafter against petitioner, a new proposal for externment should be submitted. Second such show cause notice was issued on 21/1/2014, third such notice was issued on 17/2/2014 and thereafter one more notice was issued on 7/4/2014. The notice dated 7/4/2014 mentions offences dated 6/2/2014 registered as Crime No.35/2014 under Sections 147, 148, 149, 307, 506(B), 323 and 341 read with Section 34 of Indian Penal Code, Sections 3, 4 and 25 of Arms Act and Section 135 of Maharashtra Police Act. Thus, this is only subsequent ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 4 wp649.15 offence in terms of order dated 12/12/2013 passed by respondent no.3 and mentioned by us supra. It is not in dispute that this offence has been quashed by this Court on 7/10/2014.
4) It is in this background that the impugned order has been passed on 29/4/2014 externing petitioner out of Amravati City and Amravati Rural Area, i.e. out of Amravati District. The petitioner preferred appeal under Section 60 of Maharashtra Police Act against the said order before respondent no.2 Divisional Commissioner and on 5/6/2014, the externment order was stayed. Later on application for vacation of that stay was moved by Authorities pointing out involvement of petitioner in Case No.228/2014 dated 18/6/2014 and Crime No.73/2014 dated 22/6/2014. On 4/2/2015, respondent no.1 acting as appellate Authority vacated interim stay. The petitioner contends that this is behind his back. However, we need not go into it as it is not in ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 5 wp649.15 dispute that said interim order was again restored by this Court.
5) Ultimately, appeal came to be decided by respondent no.2 Divisional Commissioner, to whom powers were delegated by the State Government. This appellate order dated 4/8/2015 apart from other material mentions Crime Nos.35/2014 and 73/2014 and an offence committed at Hingoli vide Crime No.125/2015.
6) Adv. Naik submits that statements given by four alleged witnesses whose in-camera evidence has been recorded were never made available to the petitioner. The fact that complaint leading to Crime No. 35/2014 was quashed or then no charge-sheet was filed against the petitioner in Crime No. 73/2014 is not taken note of. He further adds that even in Crime No.125/2015 at Hingoli, no charge-sheet is filed against the petitioner. He points out that these ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 6 wp649.15 subsequent alleged offences did not form part of show cause notice and, therefore, petitioner was not given due opportunity. The Authorities did not apply mind properly as most of the alleged offences were only at Amravati in the area of two Police Stations, i.e. Nagpuri Gate and Kotwali Police Station. Hence, it was not necessary to order externment from entire Amravati District.
7) Shri Ukey, learned Additional Public Prosecutor for respondents, relying upon reply-affidavit invites our attention to chart of offences produced in paragraph 1 of the reply to urge that serious offences are committed by petitioner. He points out that in relation to Crime No.118/2004, petitioner was convicted and that crime was under Sections 147, 148, 149, 326 and 307 read with Section 34 of Indian Penal Code. In this background, our attention is also drawn to subsequent conduct of petitioner as pleaded in paragraph 6 onwards of the reply. It is urged that ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 7 wp649.15 apart from Crime No.35/2014, petitioner has indulged in Crime Nos.73/2014, 119/2014 and 125/2015. An incident allegedly dated 13/7/2015 in which petitioner is claimed to have extorted money as also landed property from residents of Amravati giving rise to Crime No. 263/2015 is also pointed out.
8) Shri
Ukey, learned Additional Public
Prosecutor for respondents, submits that thus taking overall view of the matter, in order to maintain law and order situation as also peace in the area, the Authorities have passed proper orders.
9) After hearing respective Counsel, we find that Crime No. 35/2014 has been quashed by this Court after order of externment, but before 4/8/2015. Thus, cognizance of that offence as such could not have been taken by appellate Authority without taking note of quashing of the same. Similarly, facts show that no charge-sheet is filed against petitioner in Crime No.73/2014. Again this fact needed due evaluation by ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 8 wp649.15 the appellate Authority. The conviction on which reliance is being placed, i.e. in Crime No. 118/2004 has been ordered in 2007. According to petitioner, punishment of imprisonment of one year for the offence under Section 324 of Indian Penal Code was imposed. The details of conviction do not find mention either in externment order or in the order of appellate Authority. The later offence, which is allegedly committed at Hingoli in relation to Crime No.125/2015 was not included in show cause notice. According to petitioner, even in that offence, no charge-sheet is filed against him. Offences leading to Crime No.263/2015 or 125/2015 or then 119/2014 also do not figure in the show cause notices.
10) In this background, when the first order dropping the proceedings passed on 12/12/2013 is looked into, it is clear that conduct of petitioner prior to 12/12/2013 was not very relevant in absence of any subsequent crime committed by him. Only one ::: Uploaded on - 16/10/2015 ::: Downloaded on - 16/10/2015 23:59:47 ::: 9 wp649.15 subsequent crime has been mentioned, i.e. Crime No.35/2014 and it has been quashed by this Court.
We, therefore, find substance in the contention of petitioner that the impugned orders do not show necessary application of mind. The petitioner has claimed that he has not been supplied with copies of in-camera statements. This fact is not in dispute. He did not get any opportunity to submit explanation in relation to later offences. We, therefore, quash and set aside the order dated 4/8/2015 passed by respondent no.2 as also order dated 29/4/2014 passed by respondent no.3. The respondents are free to proceed further against the petitioner in accordance with law.
11) Thus, the writ petition is allowed. Rule is made absolute in the above terms. No costs.
JUDGE JUDGE
khj
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