WP 842/17 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION No. 842/2017
Shaikh Nawaz Shaikh Akbar,
Age 40 years, Occ. Labor,
r/o Azampura, Balapur, District Akola. PETITIONER
.....VERSUS.....
1. State of Maharashtra,
Through Police Station Officer, Balapur
Police Station, Balapur Dist. Akola.
2. Sub-Divisional Officer, Balapur,
District Akola. RESPONDE
NTS
Shri M. Badar, Counsel for the petitioner.
Shri S.S. Doifode, Additional Public Prosecutor for the respondents.
CORAM :SMT.VASANTI A NAIK AND
M.G. GIRATKAR, JJ.
DATE : 19 TH SEPTEMBER, 2017.
ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.) RULE. Rule is made returnable forthwith. The criminal writ petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this criminal writ petition, the petitioner challenges the order of the Sub-Divisional Magistrate, Balapur, dated 16.08.2017 externing the petitioner for a period of three months from Akola district.
3. Shri Badar, the learned counsel for the petitioner, inter alia, submitted that the impugned order is liable to be set aside as though out of the four offences that were registered against the petitioner, the petitioner is acquitted in two, the Sub-Divisional Magistrate has ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:35:17 ::: WP 842/17 2 Judgment wrongfully observed in the impugned order that all the four cases are pending against the petitioner. It is submitted that the order suffers from non-application of mind inasmuch as, though the judgments of the trial Court acquitting the petitioner in two criminal cases were tendered by the petitioner before the Sub-Divisional Magistrate, there is failure on the part of the authority to consider them. It is submitted that though the externment of the petitioner is under the provisions of Section 56(1)(b) of the Bombay Police Act, there is no finding in the order of the Sub- Divisional Magistrate that witnesses are not willing to come forward to give evidence in public against the petitioner. It is submitted that though several other grounds are raised in the writ petition for challenging the impugned order, the order could be quashed and set aside on the aforesaid couple of grounds.
4. Shri Doifode, the learned Additional Public Prosecutor appearing for the respondents, has supported the order of the Sub- Divisional Magistrate. However, it is fairly stated on the basis of the original Record & Proceedings that are produced in the Court, today that the in-camera statements of two witnesses were recorded. It is admitted that there is nothing in the show cause notice to show that the in-camera statements of two witnesses were recorded before the show cause notice under Section 59 of the Act was served on the petitioner. It ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:35:17 ::: WP 842/17 3 Judgment is fairly admitted that no finding is recorded in the order that the witnesses were not ready to come forward to depose against the petitioner. It is also admitted on a reading of the impugned order and on the perusal of the documents annexed to the petition that though the petitioner is acquitted in two of the offences that are registered against him, the impugned order shows that all the four offences are pending against the petitioner.
5. On a reading of the impugned order and on a perusal of the documents annexed to the petition, it appears that the impugned order is liable to be quashed and set aside as it suffers from non-application of mind. As many as four offences are registered against the petitioner and the petitioner is acquitted in two of them. The judgments of the trial Court acquitting the petitioner were produced before the Sub-Divisional Magistrate but the authority had failed to consider the same. It is wrongfully mentioned in the impugned order that all the four offences are pending against the petitioner. Also, though the Sub-Divisional Magistrate had recorded the statements of two witnesses in-camera, there is no reference to the said statements either in the show cause notice served on the petitioner under Section 59 of the Act or in the impugned order passed by the Sub-Divisional Magistrate. As rightly submitted on behalf of the petitioner since the impugned order suffers from non- application of mind, the same is liable to be quashed and set aside. ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:35:17 :::
WP 842/17 4 Judgment
6. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside.
Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
APTE
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