Bombay High Court
Sheikh Jafar S/O Sheikh Jabbar vs The State Of Maharashtra, Through ... on 12 October, 2015
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.649 OF 2015
Sheikh Jafar s/o Sheikh Jabbar,
aged about 33 years,
occupation : business,
r/o Namuna Galli No.5,
Amravati, Tahsil and District
Amravati. ig ... Petitioner
- Versus -
1) The State of Maharashtra,
through Principal Secretary,
Ministry of Home Department,
Mantralaya, World Trade Centre,
Cuffe Parade, Mumbai-400 005.
2) The Divisional Commissioner,
Amravati Division, Amravati,
Office at Camp, Amravati,
Taluq and District Amravati.
3) Deputy Commissioner of Police,
Zone-2, Amravati,
Taluq and District Amravati. ... Respondents
-----------------
Shri A.A. Naik, Advocate and Shri P.R. Agrawal,
Advocate for petitioner.
Shri S.M. Ukey, Additional Public Prosecutor for
respondents.
----------------
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CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : OCTOBER 12, 2015
ORAL JUDGMENT (PER B.P.DHARMADHIKARI, J.) :
Rule returnable forthwith. Heard finally by
consent of Adv. Naik with Adv. Agrawal for petitioner
and Shri Ukey, learned Additional Public Prosecutor for
respondents. Perused the papers.
2) Challenge is to an order of externment dated
29/4/2014 passed by respondent no.3 Deputy
Commissioner of Police and appellate order dated
4/8/2015 passed by respondent no.2 Divisional
Commissioner.
3) Facts show that initially a notice for proposed
externment was issued on 4/9/2013 under Section
56(1)(a) and (b) of Maharashtra Police Act, 1951. That
notice while mentioning criminal background of
petitioner takes note of six offences registered at
Nagpuri Gate and Kotwali Police Stations at Amravati
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and one offence registered at Police Station,
Pandharkawda District Yavatmal. It also points out
preventive action under Section 110 of Criminal
Procedure Code taken against him on 1/5/2012 and
7/11/2012. It is mentioned that because of fear and
his conduct, witnesses were not forthcoming. It was
replied to by the petitioner and on 12/12/2013,
competent Authority, namely, Deputy Commissioner of
Police, Zone-II, Amravati dropped the action. He
observed that if any offence was registered thereafter
against petitioner, a new proposal for externment
should be submitted. Second such show cause notice
was issued on 21/1/2014, third such notice was issued
on 17/2/2014 and thereafter one more notice was
issued on 7/4/2014. The notice dated 7/4/2014
mentions offences dated 6/2/2014 registered as Crime
No.35/2014 under Sections 147, 148, 149, 307, 506(B),
323 and 341 read with Section 34 of Indian Penal Code,
Sections 3, 4 and 25 of Arms Act and Section 135 of
Maharashtra Police Act. Thus, this is only subsequent
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offence in terms of order dated 12/12/2013 passed by
respondent no.3 and mentioned by us supra. It is not
in dispute that this offence has been quashed by this
Court on 7/10/2014.
4) It is in this background that the impugned
order has been passed on 29/4/2014 externing
petitioner out of Amravati City and Amravati Rural
Area, i.e. out of Amravati District. The petitioner
preferred appeal under Section 60 of Maharashtra
Police Act against the said order before respondent
no.2 Divisional Commissioner and on 5/6/2014, the
externment order was stayed. Later on application for
vacation of that stay was moved by Authorities
pointing out involvement of petitioner in Case
No.228/2014 dated 18/6/2014 and Crime
No.73/2014 dated 22/6/2014. On 4/2/2015, respondent
no.1 acting as appellate Authority vacated interim
stay. The petitioner contends that this is behind his
back. However, we need not go into it as it is not in
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dispute that said interim order was again restored by
this Court.
5) Ultimately, appeal came to be decided by
respondent no.2 Divisional Commissioner, to whom
powers were delegated by the State Government. This
appellate order dated 4/8/2015 apart from other
material mentions Crime Nos.35/2014 and 73/2014
and an offence committed at Hingoli vide Crime
No.125/2015.
6) Adv. Naik submits that statements given by
four alleged witnesses whose in-camera evidence has
been recorded were never made available to the
petitioner. The fact that complaint leading to Crime
No. 35/2014 was quashed or then no charge-sheet was
filed against the petitioner in Crime No. 73/2014 is not
taken note of. He further adds that even in Crime
No.125/2015 at Hingoli, no charge-sheet is filed
against the petitioner. He points out that these
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subsequent alleged offences did not form part of show
cause notice and, therefore, petitioner was not given
due opportunity. The Authorities did not apply mind
properly as most of the alleged offences were only at
Amravati in the area of two Police Stations, i.e. Nagpuri
Gate and Kotwali Police Station. Hence, it was not
necessary to order externment from entire Amravati
District.
7) Shri Ukey, learned Additional Public
Prosecutor for respondents, relying upon reply-affidavit
invites our attention to chart of offences produced in
paragraph 1 of the reply to urge that serious offences
are committed by petitioner. He points out that in
relation to Crime No.118/2004, petitioner was
convicted and that crime was under Sections 147, 148,
149, 326 and 307 read with Section 34 of Indian Penal
Code. In this background, our attention is also drawn
to subsequent conduct of petitioner as pleaded in
paragraph 6 onwards of the reply. It is urged that
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apart from Crime No.35/2014, petitioner has indulged
in Crime Nos.73/2014, 119/2014 and 125/2015. An
incident allegedly dated 13/7/2015 in which petitioner
is claimed to have extorted money as also landed
property from residents of Amravati giving rise to
Crime No. 263/2015 is also pointed out.
8) Shri
Ukey, learned Additional Public
Prosecutor for respondents, submits that thus taking
overall view of the matter, in order to maintain law and
order situation as also peace in the area, the
Authorities have passed proper orders.
9) After hearing respective Counsel, we find that
Crime No. 35/2014 has been quashed by this Court
after order of externment, but before 4/8/2015. Thus,
cognizance of that offence as such could not have
been taken by appellate Authority without taking note
of quashing of the same. Similarly, facts show that no
charge-sheet is filed against petitioner in Crime
No.73/2014. Again this fact needed due evaluation by
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the appellate Authority. The conviction on which
reliance is being placed, i.e. in Crime No. 118/2004 has
been ordered in 2007. According to petitioner,
punishment of imprisonment of one year for the
offence under Section 324 of Indian Penal Code was
imposed. The details of conviction do not find mention
either in externment order or in the order of appellate
Authority. The later offence, which is allegedly
committed at Hingoli in relation to Crime No.125/2015
was not included in show cause notice. According to
petitioner, even in that offence, no charge-sheet is
filed against him. Offences leading to Crime
No.263/2015 or 125/2015 or then 119/2014 also do not
figure in the show cause notices.
10) In this background, when the first order
dropping the proceedings passed on 12/12/2013 is
looked into, it is clear that conduct of petitioner prior to
12/12/2013 was not very relevant in absence of any
subsequent crime committed by him. Only one
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subsequent crime has been mentioned, i.e. Crime
No.35/2014 and it has been quashed by this Court.
We, therefore, find substance in the contention of
petitioner that the impugned orders do not show
necessary application of mind. The petitioner has
claimed that he has not been supplied with copies of
in-camera statements. This fact is not in dispute. He
did not get any opportunity to submit explanation in
relation to later offences. We, therefore, quash and
set aside the order dated 4/8/2015 passed by
respondent no.2 as also order dated 29/4/2014 passed
by respondent no.3. The respondents are free to
proceed further against the petitioner in accordance
with law.
11) Thus, the writ petition is allowed. Rule is
made absolute in the above terms. No costs.
JUDGE JUDGE
khj
