Bombay High Court
Mohd. Ahfaz S/O Mohd. Ajaz vs The Divisional Commissioner, ... on 29 March, 2016
Bench: B.R. Gavai
cri..wp.91.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL WRIT PETITION NO. 91/2016
Mohd. Ahfaz s/o Mohd. Ajaz
Aged about 35 years, occu: Business
R/o Walgaon Road,
behind Asoriya petrol Pump
Jakir Colony,
Amravati,Tq. &Dist. Amravati.
ig ... ...PETITIONER
v e r s u s
1) The divisional Commissioner
amravati division, amravati
Office at Camp Amravati
Tq. &Dist. Amravati.
2) Deputy Commissioner of Police
Zone-1, Amravati
Tq. &Dist. Amravati. ... ...RESPONDENTS
...........................................................................................................................
Mr. P.R.Agrawal, Advocate for petitioner
Mr. S.M.ghodeswar, APP for respondents
............................................................................................................................
CORAM: B.R.GAVAI &
Mrs. SWAPNA JOSHI, JJ.
DATED : 29th March, 2016
cri..wp.91.16
ORAL JUDGMENT : (Per B.R.Gavai, J.)
1. Rule. Rule made returnable forthwith. Heard by consent.
2. The petitioner has approached this Court being aggrieved by
the order dated 10th June, 2015 passed by the respondent no.2 thereby
externing the petitioner from the area of Amravati Police Commissionerate
as well as Amravati (Rural) District for a period of two years and the order
dated 1st January, 2016 passed by the respondent no.1 dismissing the
Appeal filed by the present petitioner.
3. The petitioner was served with a show-cause notice dated 25th
May 2015 calling upon him to show-cause as to why he should not be
externed. The show-cause notice mentioned as many as seven offences to
be pending against the petitioner. The show-cause notice also mentioned five
prohibitory actions which were taken against the petitioner.
4. In response to the show-cause notice issued, the petitioner
submitted his written submission on 8th June, 2015. In the said written
submissions, the petitioner had specifically mentioned that insofar as three
offences i.e. Crime No. 47/2011 (Criminal Case No.1196/11); Crime No.
3144/2009 (Criminal Case No.4577/2009) and Crime No. 3053/2013
(Criminal Case No. 5561/2013 ) are concerned, the petitioner was
cri..wp.91.16
acquitted by the Competent Courts.
5. However, by order dated 10th June, 2015 the petitioner came to
be externed for a period of two years. The petitioner carried statutory
Appeal before the respondent no.1. The same was also dismissed. Hence
this petition.
6. Mr. P.R. Agrawal, learned counsel appearing on behalf of the
petitioner submits that the impugned order takes into consideration one of the
offences in which the petitioner has been acquitted and mentioned to be
pending before the Court. He submits that the order has been passed without
application of mind. He further submits that another ground on which the
impugned order is liable to be set aside is that in the impugned order
reference is made to to in-camera statements. It is submitted that there is no
mention in the show cause notice with regard to the same and, as such,
the impugned order is vitiated on the said ground also.
7. Shri S.M. Ghodeswar, learned A.P.P. appearing on behalf of
respondents, on the contrary, submits that the impugned order as well as the
appellate order has been passed after taking into consideration all the
relevant aspects and, as such,the petition deserves to be dismissed.
cri..wp.91.16
8. By now, it is settled principle of law that while dealing with the
liberty of citizens the authorities are required to scrupulously follow the legal
provisions. Perusal of the show cause notice would reveal that the show cause
notice mentions a total of seven offences. In the reply given by the
petitioner, the petitioner has specifically given details of three offences in
respect of which he is already acquitted. However the impugned order also
refers to Crime No.3144/2009 to be pending before the Court in which
petitioner is acquitted. It is thus clear that the respondent no.2 has passed
the impugned order without taking into consideration the fact that the
petitioner was already acquitted in respect of the said offence. The
impugned order therefore suffers from the vice of non-application of mind.
9. The petition deserves to be allowed on the ground also. In the
show-cause notice there is no reference to the in-camera statements. However
while passing the impugned order, the respondent no.2 has also referred to
two in-camera statements of the witnesses. It could thus be seen that the
authority has passed the order taking into consideration the material about
which the petitioner was not given show cause notice. The impugned order
would therefore suffers from ground of violation of principles of natural
justice.
10. On the same grounds, the appellate order is also
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indefensible.
11. In the result, Rule is made absolute in terms of prayer clause(i)
of the petition.
JUDGE JUDGE
sahare
