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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.983 OF 2017
WITH
CRIMINAL WRIT PETITION NO.1035 OF 2017
1) CRIMINAL WRIT PETITION NO.983 OF 2017 :
Junaid Zafar Hussain Khatib,
Aged about 32 years, Occ.Agrilst.,
r/o. Raushanpura, Old City,
Murtizapur, Tq.Murtizapur,
Distt. Akola. .......... APPELLANT
// VERSUS //
1) State of Maharashtra,
Through Police Station
Officer, P.S., Murtizapur,
Tq.Murtizapur, Distt.
Akola.
2) Sub-Divisional Magistrate,
Murtizapur, Tq.Murtizapur,
Distt. Akola. .......... RESPONDENTS
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____________________________________________________________
Mr.U.J.Deshpande, Advocate for the Petitioner.
Mr.M.K.Pathan, A.P.P. for the Respondent/State.
____________________________________________________________
2) CRIMINAL WRIT PETITION NO.1035 OF 2017 :
Taswar Khan s/o. Taslim Khan,
Aged about 32 years, Occ.
Business, r/o. Pathanpura,
Murtizapur, Tq.Murtizapur,
Distt. Akola. .......... APPELLANT
// VERSUS //
1) State of Maharashtra,
Through Police Station
Officer, P.S., Murtizapur,
Tq.Murtizapur, Distt.
Akola.
2) Sub-Divisional Magistrate,
Murtizapur, Tq.Murtizapur,
Distt. Akola. .......... RESPONDENTS
____________________________________________________________
Mr.U.J.Deshpande, Advocate for the Petitioner.
Mr.M.K.Pathan, A.P.P. for the Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 19.12.2017.
Date of pronouncing the Judgment : 22.12.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for respective parties.
2. In both these petitions, the petitioners have challenged the impugned order of externment passed by respondent no.2 on 17.7.2017.
3. It is submitted that proposal was submitted by respondent no.1 on 16th August, 2016 in respect of petitioner Junaid Zafar Hussain Khatib (Criminal Writ Petition No.983 of 2017) and on 23rd August, 2016 in respect of petitioner Taswar Khan s/o. Taslim Khan (Criminal Writ Petition No.1035 of 2017) for their externment on the ground that criminal cases under the Indian Penal Code are pending against them. The proceedings to prevent breach of peace ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 ::: 4 wp983.17.odt were also initiated before the Executive Magistrate. The petitioners are not improving their behaviour. Due to their criminal activities, there is danger to public person and property. On the request of respondent no.1, the externment proceedings were started. The show cause notices were issued to the petitioners. Said show cause notices were replied by the petitioners and submitted that some criminal cases are decided and they are acquitted. The proceedings under Sections 107 and 110 of the Code of Criminal Procedure are also closed. They are peace loving citizens. They have not committed any breach of public peace. Therefore, prayed to drop the externment proceedings.
4. Respondent no.2 passed the impugned order on 17.7.2017. Both the petitioners are externed for a period of two years from Akola.
5. It is submitted that, in the show cause notice, nothing is mentioned about the in-camera statements. But, in the impugned order, it is mentioned that the in-camera statements were recorded and witnesses are not coming forward to depose against them. Therefore, there was no opportunity to the petitioners to explain. ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 :::
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6. It is submitted that the proposal for externment was submitted by respondent no.1 on 21.12.2016. There is inordinate delay in passing the impugned order.
7. It is submitted that offences pending against the petitioner are of the year 2015. There is no live link to extern the petitioners from Akola district.
8. Heard Mr.U.J.Deshpande, learned Counsel for the petitioners. He has submitted that the false cases were filed against the petitioners. In fact, the petitioners obtained permission for the procession of Eid etc., even though they are prosecuted for not taking permission. Offences registered against the petitioners are in respect of religious procession and not any other offence. It is submitted that there are two groups of their community. The petitioners are maintaining Eidgah etc. Other party opposed to religious activity of the petitioners. Offences are registered against the complainants of rival party of the same community.
9. Learned Counsel has submitted that last offence was registered on 31.5.2016 and the impugned orders are passed on ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 ::: 6 wp983.17.odt 17.7.2017. Therefore, there is no live link. Learned Counsel has submitted that there is no subjective satisfaction of the respondent no.2 while passing the impugned order to extern the petitioners.
10. Mr.M.K.Pathan, learned A.P.P. for the Respondent/State has pointed out the decision of Division Bench of Principal Seat in the case of Pankaj Prakash Shimpi vs. The Deputy Commissioner of Police, Zone-II, Nashik City and Others, Criminal Writ Petition No.2742 of 2016 and submitted that subjective satisfaction is not necessary.
11. In the afore-cited decision, it is observed as under :
"It is not possible to scrutinize the veracity of subjective satisfaction of the externing authority. Law empowers him to record satisfaction and not to explain in the order of externment as to how and in what manner the witnesses are not willing to come forward to depose against the externee. The material nature of allegations have been stipulated in the notice as well as order of externment and it was not necessary to mention in detail as to how and in what manner each and every witness which is part of the cases pending against the ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 ::: 7 wp983.17.odt Petitioner, is not willing to depose against the Petitioner."
Therefore, subjective satisfaction is not necessary.
12. Learned A.P.P. has fairly submitted that there is no live link to connect the petitioners. In the case of Kanifnath Radhakishan Popalghat .vs. State of Maharashtra and Others reported in 2017 DGLS (Bom.) 243, this Court has held that " The reasons assigned by the authority also suffers from not demonstrating the live link between the offences relied upon in the show cause notice and the order passed by authority externing the petitioner from the territorial limits of Ahmednagar District. " In the case of Dilip Laxman Kokare .vs. S. M. Ambedkar and another reported in 1991 Mh.L.J. 833, there was delay of 1 ½ years in passing the externment order after show cause notice. The Police Authorities vaguely stated that externment proceedings could not be completed due to delay on the part of externee and his counsel. The Division Bench of this Court holding that such an explanation cannot be availed of by externment authority, has quashed the order of externment in view of abnormal delay.
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13. From the perusal of proposal submitted by respondent no.1 and the impugned order passed by respondent no.2, it is clear that there is much more delay in passing the impugned order. Hence, in view of the Judgment in the case of Dilip Laxman Kokare (cited supra), the impugned order is liable to be quashed and set aside. There is also no live link. The last offence was registered on 31.5.2016 and impugned order is passed on 17.7.2017. Therefore, there was no live link when the impugned order was passed by respondent no.2.
14. In view of above observation, the impugned orders dt.17.7.2017 passed by respondent no.2 are liable to be quashed and set aside. Hence, we pass the following order.
// ORDER // Criminal Writ Petition Nos. 983 of 2017 and 1035 of 2017 are hereby allowed in terms of prayer clause (i) of the Criminal Writ Petitions.
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9 wp983.17.odt We hereby quash and set aside the impugned orders dt.17.7.2017 passed by respondent no.2.
No order as to costs.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 ::: 10 wp983.17.odt ::: Uploaded on - 22/12/2017 ::: Downloaded on - 23/12/2017 02:46:25 :::