1 jg.wp 905.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Writ Petition No. 905 of 2017
Petitioner : Nazakat Ali s/o Yunus Ali,
Aged about 40 years,
Occ. : Agriculturist,
R/o. Sawara, Tah. Akot,
District - Akola.
// Versus //
Respondents : (1) State of Maharashtra,
Through Sub Divisional Police Officer,
Tah. Akot, District - Akola.
(2) Sub Divisional Officer, Akot,
Tah. Akot, District - Akola.
Shri S. I. Jagirdar, Advocate for the petitioner
Shri N. S. Rao, Additional Public Prosecutor for the respondents
CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date of reserving the judgment : 14/11/2017.
Date of pronouncing the judgment : 17/11/2017. Judgment (Per : M.G. Giratkar, J) Rule. Rule made returnable forthwith.
2. By the present petition, the petitioner has challenged the impugned order of externment dated 2-8-2017 by which he is externed from Akola District for a period of one year.
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3. It is submitted that the petitioner is a law abiding citizen. He is only earning member of his family. He was not given any opportunity of hearing by the respondent no. 2 before passing the impugned order.
4. It is submitted that show cause notice was issued on 8-8-2015 and certain charges/allegations were levelled against the petitioner. The petitioner is acquitted from the offences which were shown in the notice dated 8-8-2015 except one case is pending against him. The respondent no. 2 passed the impugned order without application of any mind. There was no any opportunity for the petitioner to rebut the allegations in the notice as reference of witnesses are made, no specific allegations stated by the witnesses are mentioned in the notice. At last, it is prayed to quash and set aside the impugned order.
5. Heard learned counsel Shri Jagirdar for the petitioner. He has submitted that the petitioner is acquitted in all the cases shown in the impugned order except one case which is pending against him. The copies of judgments are filed with the petition.
6. Heard learned Additional Public Prosecutor Shri Rao for the respondents. He has supported the impugned order.
7. Perused the impugned order. From perusal of the impugned .....3/-
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3 jg.wp 905.17.odt order, allegations against the petitioner stated by the witnesses were not mentioned in the show cause notice, therefore, there was no opportunity to the petitioner to rebut the allegations in his reply.
8. The Division Bench of this Court in the case of Nitin @ Babloo s/o Bhagwant Gade Vs. Deputy Commissioner of Police, Amravati and ors. reported in 2017 ALL MR (Cri) 1549 held that show cause notice wrongly referred to a criminal case as pending against petitioner and the petitioner was already acquitted in said case, non consideration of acquittal of petitioner vitiate subjective satisfaction. Further, decision of externment was based on two in-camera statements. However, show cause notice did not refer to any such statement. Material which was not disclosed in show cause notice cannot be relied upon to order externment.
9. In the present case, the petitioner is acquitted by the Court in near about all the cases and only one case is pending against him. This factor was not considered by the respondent no. 2 while passing the impugned order. From perusal of show cause notice, it is clear that it did not refer to any in-camera statement of the witnesses, therefore, it cannot be relied upon to order externment. In view of cited judgment, impugned order is liable to be quashed and set aside. Hence, we pass the .....4/-
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following order :
(i) Writ petition is allowed.
(ii) The impugned order of externment dated 2-8-2017 passed by the respondent no. 2 is hereby quashed and set aside.
10. Rule is made absolute in aforesaid terms.
JUDGE JUDGE
wasnik
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