Bombay High Court
Vinay @ Mukka S/O Chawariya vs Divisional Commissioner, Nagpur ... on 9 December, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.706 OF 2016
Vinay @ Mukka s/o Chawariya
aged about 34 years,
Occupation : private
presently at Hinganghat,
Dist. Wardha ... Applicant
-vs-
1. Divisional Commissioner,
Nagpur Division, Nagpur.
2. Deputy Commissioner of Police,
Zone-I, Nagpur City, Nagpur.
3. Assistant Commissioner of Police,
Sitabuldi, Nagpur. ... Non-applicants
Shri R. R. Vyas, Advocate for applicant.
Ms K. Joshi, Addl. PP for non-applicants.
CORAM : B. P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE : December 09, 2016
Oral Judgment : (Per : B. P. Dharmadhikari, J.)
1. Heard finally by issuing Rule and making it returnable forthwith
by consent of parties.
2. Advocate Shri Vyas has raised following contentions :
(i) Though total six offences allegedly committed by applicant
figured in show cause notice, after receipt of reply thereto from
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applicant, only two have been looked into in final order.
(ii) On the strength of those two offences i.e. Crime No.43/2014 and
Crime No.220/2015 with in-camera statements, the externment
for period of two years was ordered by Dy. Commissioner of
Police Zone-I, Nagpur City on 05/04/2016. Said order does not
mention the dates or period of in-camera statements so as to
demonstrate its live link with the externment.
(iii)
When this order was questioned in statutory appeal before
respondent No.1, it found that Crime no.43/2014 was registered
against the brother of present applicant and therefore ignored it.
However, it has maintained externment by relying upon
involvement in four offences discarded by original authority.
(iv) This exercise of accepting the rejected material has been
undertaken without any opportunity to applicant. He further
adds that so called in-camera statements are not found relevant
by the appellate authority.
3. Learned Addl. Public Prosecutor submits that appeal before
respondent No.1 is provided in statute and that authority has got same
powers as that of original authority. It can therefore consider the entire
material afresh and arrive at its own conclusion even by ignoring certain
findings reached by original authority i.e. Dy. Commissioner of Police. In
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present matter, appellate authority has heard the applicant and thereafter
found that his previous conduct manifest in first four crimes also
constituted relevant material for the purpose of externment. Error of
original authority in considering Crime No.43/2014 has been corrected and
that crime has been deleted from consideration. However, because of
previous conduct and the last Crime i.e. Crime No.220/2015, the
externment has been maintained. She submits that as externment has
been maintained, non-consideration of in-camera statement by itself, is not
fatal and order of appellate authority cannot be quashed on that ground.
4. After hearing respective counsel, we find that Dy. Commissioner
of Police has, for reasons recorded by him, ignored first four offences and
found Crime Nos.43/2014 and 220/2015 only relevant. If Crime
No.43/2014 was committed by brother of applicant and applicant was not
involved in it, consideration of that crime by Dy. Commissioner of Police as
relevant material stands vitiated. Non-applicant No.1 as an appellate
authority has corrected that error. It has mentioned Crime No.220/2015
only. However, consideration in appellate order does not show that only
because of Crime No.220/2015, appellate authority was inclined to uphold
the order of externment. It has relied upon first four offences which were
discarded by Dy. Commissioner of Police.
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5. Thus, material which lower authority found irrelevant has been
considered by appellate authority to the prejudice of applicant. We feel
that an opportunity to applicant or at least a notice that such a course is
open, should have been given by the appellate authority.
6. Similarly, the appellate authority has not mentioned in-camera
statements at all. In order of externment, details like the month or period
of incident in relation to which those in-camera statements are recorded
are lacking. Those details are essential to establish live link with the
object sought to be achieved. As those dates are missing, the externing
authority could not have looked into in-camera statements if offences
mentioned therein were stale. If appellate authority found that those
instances were stale, appellate authority ought to have commented upon its
use by the externing authority. In fact, appellate authority has not
observed anything on relevance or otherwise of those in-camera
statements.
7. We, therefore, find that entire material looked into by Dy.
Commissioner of Police as an externing authority has not been evaluated by
appellate authority. Hence, without observing anything more, we quash
and set aside the appellate order dated 20/09/2016 and restore
proceedings back to file of respondent No.1.
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8. Parties are directed to appear before the appellate authority on
29/12/2016 and appellate authority shall attempt to pass fresh orders
within six weeks thereafter.
9. Writ petition is thus partly allowed and disposed of with no
order as to cost.
JUDGE JUDGE
Asmita
