Bombay High Court
Unknown vs 4] The Police Inspector on 15 December, 2011
Bench: U. D. Salvi
1
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 889 OF 2011
Balu @ Dhananjay S/o Namdev
Shinde, Age 25 yeras, Occu. Labour,
R/o Kinhola, Taluka Manvat,
District Parbhani PETITIONER
VERSUS
1] The State of Maharashtra,
Through Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2] Sub-Divisional Magistrate,
Sailu, District. Parbhani.
3] Sub-Divisional Police Officer,
Sailu, Taluka Sailu, District Parbhani.
4] The Police Inspector,
Police Station, Manwath,
Taluka Manwat,
District Parbhani. RESPONDENTS
.....
Shri Manish P. Tripathi, Advocate for petitioner
Shri G.R. Ingole, APP for respondents / State
.....
CORAM : U.D. SALVI, J.
DATED : 15th December, 2011.
ORAL JUDGMENT :
1. Heard. Perused.
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2. Rule. Rule made returnable forthwith. Taken up for
final hearing by mutual consent.
3. Worth of the judgment and order dated 18-08-2011,
passed by the Principal Secretary, Home Department, Mantralaya,
Mumbai-32 in Appeal No. EXT-2011/133/VS-3(A), confirming the
externment order dated 03-03-2011 passed by the Sub Divisional
Magistate, Selu, District Parbhani, is in question in the present
petition.
4. A show-cause notice dated 17-04-2010 seeking
explanation regarding the allegations made in the said notice was
issued as per the provisions of Section 59(1) of the Bombay Police
Act, 1951 (for short 'said Act, 1951'). This notice was replied by the
petitioner with his reply dated 15-01-2010. The petitioner was
heard, and thereafter, the order of externment dated 03-03-2011
was passed by the Sub Divisional Magistrate, Selu, District
Parbhani.
5. An appeal under Section 60 of the said Act, 1951
against the said order of externment was preferred before the
Principal Secretary, Home Department, Mantralaya, Mumbai-32.
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Following the hearing afforded to the petitioner, the Principal
Secretary, Home Department, Mantralaya, Mumbai-32 rejected the
appeal on 18-08-2011. It is this order of rejecting appeal is the
subject matter of the present petition. The Principal Secretary,
Home Department, Mantralaya, Mumbai-32, considered the rival
submissions particularly the submission made on behalf of the Sub
Divisional Magistrate, Selu, District Parbhani, with reference to four
offences, particulars of which are tabulated here-in-under.
Sr. Police Station Crime Under Sections
No. No.
1 Manwat 32/2008 452, 354, 504, 506 r.w. 34 of Indian
Penal Code, 1860.
2 Manwat 59/2008 354, 323, 504, 506 r.w. 34 of the Indian
Penal Code, 1860.
3 Manwat 108/200 324 r.w. 34 of of Indian Penal Penal
8 Code,1860.
4 Manwat 3018/20 323, 324, 504, r.w. 34 of Indian Penal
08 Code, 1860 & 3 (i) (x) & 3(i) (xi) of
Prevention of Scheduled Caste and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
6. The learned Advocate for the petitioner submitted that
criminal cases at serial Nos. 3 & 4 shown in the aforesaid table
constitute an extraneous material as the same did not figure in the
show-cause notice, and as such the same cannot be the basis
either for passing externment order or confirming it. For this
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purpose he relied on the judgment delivered by the Division Bench
of this Court in Ganu's Case (Ganu V. M.V. Chitale and another;
reported in 1988 Cri.L.J. 1547)
7. In Ganu's case (supra), the Division Bench of this
Court opined that the impugned order of externment was clearly
illegal as the first respondent i.e. the authority considered and
relied upon the extraneous material which was not referred to in
show-cause notice, and as such impugned order of externment
suffer from vice of procedural illegality which cannot be sustained.
8. Learned APP for the State conceded to this factual
aspect and the proposition of law flowing out of it.
9. As regards the other two criminal cases, the learned
Advocate for the petitioner pointed out that in both the cases the
petitioner was acquitted and this fact reflects in the submission
made on behalf of the petitioner before the appellate authority that
the appellant was wrongly involved in the criminal cases. He
further pointed out from the reply dated 15-01-2010 to the show-
cause notice that the fact of the acquittal in Crime No. 59/2008 i.e.
the criminal case at serial No. 2 in the aforesaid table was brought
to the notice to the Sub Divisional Police Officer, Selu, and it was
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incumbent upon the appellate authority to have considered these
acquittals and then passed appropriate order. He pointed out that
the impugned order passed by the appellate authority makes no
utterance about the acquittal of the petitioner in the said criminal
cases and thus proceeds to pass the order confirming the
externment mechanically.
10.
Perusal of the impugned order dated 18-08-2011,
reveals that the appellate authority did take note of the said
criminal cases but did not consider the fact of the acquittal of the
petitioner in the said cases. It could have been possible for the
appellate authority, and was incumbent, to have considered the
acquittal and reasoned as to why those acquittals do not lessen the
gravity of the allegations made in the show-cause notice regarding
the spreading of the terror in the locality. A reference to Abdul
Kadir Razzaque Beg's case [Abdul Kadir Razzque Beg V. Sub-
Divisional Magistrate, Nashik and others; reported in 1999(1)
Mh.L.J. 474] cited by the petitioner further reinforces the view that
such order passed by the appellate authority exhibits non-
application of mind, and it deserves to be quashed on the same
ground. Hence order.
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ORDER
i] Judgment and order dated 18-08-2011 passed
by the Principal Secretary, Home Department,
Mantralaya, Mumbai-32 in Appeal No.
EXT-2011/133/VS-3(A) is quashed and set aside
. Rule made absolute in terms of above order.
.
Criminal Writ Petition No. 889/2011 stands disposed off
accordingly.
( U.D. SALVI, J. )
SDM* December-11
