Bombay High Court
Saimudkhan Son Of Sardarkhan vs The State Of Maharashtra on 1 December, 2011
Bench: A. H. Joshi
Criminal Writ Petition No. 426 of 2007
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 426 of 2007
Saimudkhan son of Sardarkhan,
aged about 27 years,
occupation business,
resident of Rajeev Nagar,
Ward No.5, Nagpur. .... Petitioner.
ig Versus
1. The State of Maharashtra,
through Asstt. Commissioner
of Police,
Ambazari Division, Nagpur
City, Nagpur.
2. Deputy Commissioner of Police,
Zone-I, Nagpur City,
Nagpur.
3. Secretary, Govt. of Maharashtra,
Home Department,
Mantralaya,
Mumbai-32. .... Respondents.
*****
Mr. R.M. Daga, Adv., for the petitioner.
Mr. D.L. Dharmadhikari, Addl. Public Prosecutor for
the respondents.
*****
CORAM : A.H. JOSHI, J.
Date : 01st Dec.,2011.
ORAL JUDGMENT :
Criminal Writ Petition No. 426 of 2007
1. Heard learned Advocates for the parties.
2. The petitioner is challenging the order of
externment passed on 22nd June, 2007, and the order dated
23rd July, 2007 passed by the Appellate Authority in the
statutory appeal [Annexs.P-3 and P-4 respectively].
3. In
all fourteen offences were noted by the
Authority while issuing Show-cause-Notice. The list
of those offences and dates of commission thereof is as
follows:-
---------------------------------------------------------
Sr. Date of Commission Sections Crime No.
No. of offence.
---------------------------------------------------------
1. 6th May, 2000 481,380 and 411 84/2000
of IPC.
2. 5th Aug. 2005 504, 506, IPC. 438/05.
3. 19th Aug.2000 379 of IPC. 133/2000
4. 28th Oct. 2000 461,380 read with 175/2000
34 of IPC.
5. 13th to 16th 461 and 380, IPC. 227/2001
Nov., 2001.
6. 4th to 8th 381, 411 read 99/2002
Aug.,2002. with 34 of IPC.
7. 8th Aug., 2002 124, Bom. Police 5/2002
Act.
8. 23rd June, 2004. 379, IPC. 158/2004
Criminal Writ Petition No. 426 of 2007
9. 20th Sept.,2004 392 read with 193/2004
34 of IPC.
10. --- 406,411 read 57/05
with 34, IPC.
11. 29th Dec., 2005 341,294, 323 332/2005
read with 34
of IPC.
12. 22nd June, 2006 294, 506-B, IPC. 3054/06
13. 7th Jan., 2007 294, 506-B, 323 196/06
14.
7th Jan., 2007
read with 34, IPC.
294,506-B, 323 332/07
read with 34, IPC.
---------------------------------------------------------
4. The order of externment was passed and
petitioner preferred the statutory appeal. In the appeal,
the petitioner had raised a ground that out of fourteen
crimes, he was already acquitted in four cases, inter
alia, other grounds.
5. Petitioner had raised the point of acquittal in
four cases, however, he had failed to file certified
copies on record. No effort was made by the Sub-
Divisional Magistrate as well the Appellate Authority to
ascertain the truthfulness of the claim of the petitioner
about acquittal in those four offences.
6. As is noticed by the Appellate Authority that
though the petitioner claims that he was acquitted well
Criminal Writ Petition No. 426 of 2007
before issuance of notice of show cause in four offences,
he had failed to furnish the copies of judgments of
acquittal.
7. Last amongst the cognizable offences alleged
against the petitioner, was registered on 7th January,
2007.
8. Though
various grounds have been urged in
support of petition, the point, which goes to the root of
the case, is delay in issuance of notice.
9. According to the petitioner, this point vitiates
the action in its commencement and ultimately the final
order too.
10. In order to substantiate the point as regards
the delay, the petitioner has relied upon the following
judgments:-
[a] Santosh Ramprasad Sharma Vs. Dy.
Commissioner of Police, Crime Branch &
another [1992 Cri. L.J. 3983],
[b] Shabbirbhai Bookwala & another Vs. State of
Mah. & others [2011 ALL MR (Cri) 2553], and
[c] Shaikh Dayan Shaikh Lukman Vs. State of
Maharashtra & others [Criminal Appeal No.
Criminal Writ Petition No. 426 of 2007
1851 of 2011, decided on 23rd September,
2011 by Hon ble Supreme Court].
11. The offence at Sr. No.11 in the chart quoted in
para no.3 is dated 29th December, 2005, and offences under
Sections 294, 506-B and 323 read with Section 34 of IPC
at Sr. Nos. 13 and 14 are of 7th January, 2007.
12.
It is seen that no action, whatsoever, was taken
by the police during the period from December, 2005 to
January, 2007, i.e., for one year and one month, and till
the notice of show cause [Annex.P-1] dated 27th February,
2007 was issued.
13. After considering the matter and all points
involved, this Court is satisfied that the point as
regards delay in issuance of notice goes to the root of
the case and the petition can be decided solely on this
point.
14. The alarm as contemplated by Section 56 (1) of
the Bombay Police Act and threat to the public life was
not perceived by the authority to be imminent till the
date of issuance of notice. It is not clear as to how
suddenly in January, 2007 the threat got aggravated.
Criminal Writ Petition No. 426 of 2007
15. This petition was admitted and interim relief by
way of stay was granted by this Court on 1 st August, 2007.
Nothing untoward, if happened during the intervening
period, is brought on record of this Court by the
respondents.
16. In the given situation, on account of delay in
taking action under Section 56 of the Bombay Police Act,
the action stands vitiated.
17. When authorities lost time either in initiation
or completing the action, it results in adversely
affecting the genuineness of urgency of preventive
action. Thus, when the judicial dictum is to ensure the
urgency, it was the duty of authorities to translate into
action the said urgency, with all punctualness.
18. As observed by Hon ble Supreme Court in case of
Shaikh Dayan Shaikh Lukman Vs. State of Mah. & others
[unreported], the orders ought not be passed leisurely.
It is seen from all other judgments relied upon
by the petitioner that:-
The preventive action has to be initiated
and completed with same degree of urge and
punctualness and without any lousiness.
Subsistence of urgency or emergency has to
persist through, it being a preventive
Criminal Writ Petition No. 426 of 2007
measure.
19. In the present case, the initiation of
preventive action was delayed and the last amongst
alerting the cause, i.e., the offences were registered on
7th January, 2007. Taking into consideration the offences
which date back to 2000 in itself result in destroying
the urgency of preventive action.
20. In the result, petition has to succeed only on
the ground of delay.
21. Rule is made absolute in terms of Prayer Clause
[a].
JUDGE
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Criminal Writ Petition No. 426 of 2007
