Bombay High Court
Nitin @ Babloo S/O Bhagwant Gade vs Deputy Commissioner Of Police, ... on 28 March, 2016
Bench: B.R. Gavai
WP959.15.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.959 OF 2015
PETITIONER: Nitin @ Babloo S/o Bhagwant Gade,
Aged 29 years, occupation-Business,
R/o Yashoda Nagar, No.1, Near
Adaneshwar Mandir, Amravati, At
ig Present C/o Chandan Shiv Madan,
Lokhande Layout, Mothi umbri,
Akola.
-VERSUS-
RESPONDENTS: 1 Deputy Commissioner of Police,
Zone-1, District - Amravati.
2 Assistant Police Commissioner,
Division-Frezarpura, District -
Amravati.
3 Police Station officer, P. S.
Frezarpura, Amravati.
Shri P. V. Navalani Advocate for the petitioner.
Shri S. M. Ghodeswar, Asstt. Public Prosecutor for respondent
Nos.1 to 3.
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CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.
DATED: 28TH MARCH, 2016.
WP959.15.odt 2/5
ORAL JUDGMENT : (Per A.S. Chandurkar, J)
1. Rule. Heard finally with the consent of the
Counsel for the parties.
2. The petitioner has challenged the order
dated 16-11-2015 passed by the respondent No.1
under provisions of Section 56 (1) of the Maharashtra
Police Act, 1951 externing the petitioner from the
limits of Amravati City as well as Amravati District for
a period of two years.
3. Shri P. V. Navlani, learned Counsel for the
petitioner submitted that the impugned order of
externment is vitiated inter alia on the following
grounds:
Firstly, in the show cause notice, it was
stated that a Court case that was filed against the
petitioner on the basis of Crime No.3007/2009 was
pending. It is submitted that the aforesaid matter was
disposed of on 14-7-2011 by acquitting the petitioner.
Secondly, it is submitted that in the show cause notice
there is no reference made to the recording of in
camera statements of two witnesses. However, in the
WP959.15.odt 3/5
impugned order, the respondent No.1 has relied upon
said two in camera statements while directing
externment of the petitioner. Such course was not
permissible. The learned Counsel placed reliance on
the judgment of the Division Bench in the case of
Pradeep Somnath Gupta VS. State of Maharashtra
2014 ALL MR (Cri) 4845 in that regard. It is, therefore,
submitted that the impugned order suffers from
aforesaid infirmities as well as from lack of subjective
satisfaction thereby vitiating the same.
4. Shri S. M. Ghodeswar, learned Asstt. Public
Prosecutor by relying upon the affidavit-in-reply filed
on behalf of the respondent No.1 supported the
impugned order. He submitted that Crime
No.3001/2009 was wrongly mentioned in the show
cause notice. In fact, Crime No.3007/2009 was stated
to be pending against the petitioner vide Summary
Criminal Case No.1190/2009. It was then submitted
that in the show cause notice there is a reference to
the unwillingness of witnesses to depose against the
petitioner. It is therefore submitted that the impugned
order does not call for any interference.
WP959.15.odt 4/5
5. Having heard the respective Counsel and
having given due consideration to their respective
submissions, we are of the view that the challenge to
the impugned order deserves to be upheld.
It is to be noted that pursuant to the order
dated 14-7-2011, said Summary Criminal Case
No.1190/2009 stands disposed of by acquitting the
petitioner. The fact that the petitioner has been
acquitted on 14-7-2011 has been lost sight of while
issuing the show cause notice on 13-10-2015 and said
aspect has in fact been taken into consideration while
calling upon the petitioner to show cause. The
absence of valid consideration of acquittal of the
petitioner is a factor that would vitiate the subjective
satisfaction of the respondent no.1.
6. In so far as the in camera statements of two
witnesses are concerned, there is no reference made
thereto in the show cause notice. It has been vaguely
stated that witnesses were not willing to come forward
to depose against the petitioner. However, in the
impugned order, there is a specific reference made to
two in camera statements that have been relied upon
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by the respondent No.1 while passing the order of
externment. As the petitioner was not put on notice
with regard to the existence of aforesaid in camera
statements and the same have been relied upon while
ordering his externment, the same would result in
vitiating the exercise conducted by the respondent
No.1. The material which was not disclosed in the
show cause notice could not have been relied upon by
the respondent no.1 while passing the order of
externment. The learned Counsel for the petitioner has
rightly placed reliance upon the judgment of the
Division Bench in Pradeep Somnath Gupta (supra).
7. In view of aforesaid, it is clear that the
impugned order is vitiated on both the aforesaid
counts. The same is, therefore, liable to be set aside.
8. Accordingly, the writ petition is allowed.
The impugned order dated 16-11-2015 is quashed and
set aside. Rule is made absolute in aforesaid terms
with no order as to costs.
JUDGE JUDGE
//MULEY//
