Judgment wp787
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINL WRIT PETITION NO. 787 of 2017
Akash s/o. Ashok Panpatte,
Aged about 24 years, Occ. Agrilst.,
r/o. Mudana, Police Station,
Mahagaon, District Yavatmal. .. PETITIONER
// Versus //
1. The Sub-Divisional Magistrate,
Umerkhed, District Yavatmal.
2. P.S.O., Police Station,
Mahagaon, Distt. Yavatmal. .. RESPONDENTS
__________________________________________________________
Mr.Tejas Deshpande, Advocate for the Petitioner.
Mrs.M.H.Deshpande, A.P.P. for the Respondents.
CORAM : R. K. DESHPANDE &
M.G.GIRATKAR, JJ.
DATE : 2.11.2017.
ORAL JUDGMENT (Per R.K.Deshpande, J) :
1. Rule made returnable forthwith. Heard finally with the consent of the learned Counsels appearing for the parties.
::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:28 :::Judgment wp787 2
2. In the show cause notice issued on 7.4.2017 for externment, there no reference to the in-camera statements recorded of the witnesses. This position is not disputed.
3. In the decision of the Division Bench of this Court in the case of Salauddin s/o. Akramuddin .vs. State of Maharashtra and Others reported in 2014 ALL MR (Cri) 993, this Court has held in paragraph 3 (ii) as under :
" The other ground is that in the impugned order, the respondent/Authority has relied on two in-camera statements. Perusal of the show cause notice reveals that there is no mention regarding the same in it. By now it is a settled law that if any material is taken into consideration, of which notice is not given to the person against whom action is proposed, the same would be violative of principles of natural justice. "
4. The Division Bench has, keeping in view the aforesaid position, set aside the order of externment which makes a reference to the in-camera statements of witnesses. Similar view is also taken by the Division Bench of this Court in the case of Sanjay s/o.
Balasaheb Ruptakke .vs. The State of Maharashtra and Others reported in 2017 ALL MR (Cri) 3983. Paragraph 5 of the said ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:28 ::: Judgment wp787 3 decision is re-produced below :
" 5. Upon careful perusal of the contents of the show cause notice which was issued by the respondent No.3 to the petitioner, there is no mention/reference of in- camera statement of witnesses recorded by the respondent No.3. The contention of the learned APP appearing for the State that in the notice issued by the SDPO, Shrirampur, there is reference to such in- camera statements, is of no use, since the mandate of the provision of Section 56(1)(b) of the Bombay Police Act, contemplates that there has to be specific reference of such in-camera statements in show cause notice issued to the proposed externee, so as to enable him to file his reply/put forth his contention to such notice.
Even upon careful perusal of the discussion in the impugned order passed by the respondent No.3, we find that there is only a passing reference about recording of in-camera statements of the witnesses by the Sub-Divisional Police Officer. It is true that in view of the judgment of the Supreme Court in the case of "Pandharinath Shridhar vs. Deputy Commissioner of Police" reported in AIR 1973 SC 630, it is not necessary or desirable to mention the name and date of the incident in the gist of incamera statements of the witnesses, however, it is necessary to make a reference of those in-camera statements and gist of such statements, so as to enable the proposed externee ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:28 ::: Judgment wp787 4 to reply to the show cause notice. The issue raised in this petition is no longer res-integra and is covered by the authoritative pronouncement in the case of Yashwant Damodar Patil (Supra). "
5. In view of the aforesaid law laid down by this Court, which is binding upon us, we have no option but to allow the Writ Petition in view of the undisputed factual position in the present case and set aside the order impugned.
6. Hence, the Writ Petition is allowed. Order dt.31.7.2017 of externment passed by the Sub-Divisional Magistrate, Umarkhed is hereby quashed and set aside.
7. Rule is made absolute in the aforesaid terms. No order as to costs.
JUDGE JUDGE
jaiswal
::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:28 :::