Shaikh Mukhtyar S/O Mustafa ... vs State Of Maharashtra Through The ...
2016 Latest Caselaw 5582 Bom

    Judgment
                                                               Cr WP No.317.16




                                                                                   
                                              1

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                           
                NAGPUR BENCH, NAGPUR
               CRIMINAL WRIT PETITION NO.317 OF 2016




                                                          
    Shaikh Mukhtyar S/o Mustafa Shaikh,
    Aged about 50 years,
    Occupation Journalist,
    R/o Near Talankhedi Masjid,




                                                 
    Ramnagar, Nagpur.                                        .....   PETITIONER.
                                   ig   ::  VERSUS  ::

    1.  State of Maharashtra,
                                 
    Through the Principal Secretary,
    Department of Home, Mantralaya,
    Mumbai-32.

    2.  The Commissioner of Police,
       


    Nagpur City, Civil Lines, Nagpur-01.
    



    3.  The Deputy Commissioner of Police,
    Zone No.I, Nagpur City, Nagpur.





    4.  The Assistant Commissioner of
    Police, Sitabuldi Division, Civil
    Lines, Ravi Nagar, Nagpur.

    5.  The Police Inspector,





    Police Station, Ambazari, Nagpur.            ..... RESPONDENTS.

    ===================================

Shri A.K. Waghmare, Counsel for the Petitioner. Shri V.A. Thakre, Additional Public Prosecutor for the Respondents/State.

Shri C.P. Chandurkar, Counsel for Intervenors. ===================================

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Judgment Cr WP No.317.16

CORAM : B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.

DATED : SEPTEMBER 26, 2016.

ORAL JUDGMENT : (Per : A.S. CHANDURKAR, J.)

1. Heard learned counsel for the parties at length.

2.

The challenge in the present criminal writ petition

is to order of externment, passed by respondent No.3, dated

11.4.2016 by which the petitioner has been externed from the

limits of the Commissionerate at Nagpur for a period of one

year. This order has been passed under the provisions of

Section 56(1)(a) of the Maharashtra Police Act, 1951 (for short,

"the said Act").

3. Show cause notice dated 5.1.2016 was issued to the

petitioner in which reference was made to five offences that

were stated to have been registered against him at Ambazari

Police Station. Three of the offences pertain to the year 2001-

02, one offence pertains to the year 2014 and the last offence

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Judgment Cr WP No.317.16

pertains to the year 2015. The petitioner submitted his reply to

the aforesaid notice on 14.1.2016. By the impugned order,

respondent No.3 proceeded to pass the order of externment, as

stated hereinabove.

4. Learned counsel Shri A.K. Waghmare for the

petitioner submitted that the impugned order indicated non-

application of mind on the part of the Externing Authority. He

submitted that out of the five offences that were referred to in

the show cause notice, the petitioner had been acquitted in two

of the offences. Though it was stated in the order of

externment that the aforesaid offences had been excluded from

consideration by the Externing Authority, it has been stated in

the impugned order that the petitioner had been indulging in

such activities since the year 2001 onwards. It was then

submitted that though in the show cause notice there is no

reference to recording of secret statements, the reference to

secret statements finds place in the impugned order. Further in

the impugned order it has been vaguely stated that the

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Judgment Cr WP No.317.16

witnesses were not willing to come forward to make any

complaint. He then submitted that the last offence relating to

the year 2015 pertains to a petty offence in which no charge-

sheet has been filed even till date. He, therefore, submitted

that the impugned order was liable to be set aside.

5.

Learned Additional Public Prosecutor Shri V.A.

Thakre for the respondents/State relied upon the affidavit-in-

reply filed on behalf of respondent No.3. He submitted that

acquittal of the petitioner from two of the offences had been

taken into consideration by the Externing Authority while

passing the impugned order. He submitted that on the basis of

various statements recorded, the Externing Authority had

reached to the conclusion that the activities of the petitioner

were dangerous in nature and a case for externment under the

provisions of Section 56(1)(a) of the said Act had been made

out. After due verification of these statements, the satisfaction

had been reached by the Externing Authority and the impugned

order came to be passed.

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Judgment Cr WP No.317.16

6. Learned counsel Shri C.P. Chandurkar for the

intervenors submitted that by order dated 13.7.2016, the

applicants therein were permitted to address the Court before

passing of final orders. He submitted that all six applicants had

made various complaints as regards the dangerous activities of

the petitioner before the Police Authorities. Their statements

had been duly recorded and on that count, the order of

externment, as passed, was liable to be sustained.

7. With the assistance of the learned counsel for the

parties, we have perused the documents on record. We have

also given due consideration to their respective submissions.

8. Perusal of show cause notice dated 5.1.2016

indicates reference being made to two offences of the years

2001 and 2002. The petitioner in his reply dated 14.1.2016

stated that he had been acquitted in the said two cases. The

order passed by the learned Magistrate, acquitting the

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Judgment Cr WP No.317.16

petitioner in both these offences indicates that the petitioner

stands acquitted in Regular Criminal Case No.65 of 2001 on

25.8.2005 and in Summary Criminal Case No.1220 of 2002 on

20.2.2008. It is, therefore clear that in two offences that were

registered in the year 2001-02, the petitioner stands acquitted.

The impugned order indicates that the effect of acquittal of the

petitioner has not been given its due consideration by the

Externing Authority. The Externging Authority has merely

stated in the impugned order that the aforesaid two offences

have not been taken into consideration. If the effect of

registration of those two offences was not taken into

consideration, there was no question of thereafter recording

that since the year 2001 the petitioner had been indulging in

the aforesaid activities resulting in breach of public peace. This

aspect, therefore, indicates non-application of mind by the

Externing Authority to the acquittal of the petitioner. This has,

therefore, resulted in vitiating the impugned order.

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Judgment Cr WP No.317.16

9. In the impugned order, there is a reference to

certain secret statements that have been recorded by the

Authorities on the basis of which the order of externment came

to be issued. However, the show cause notice does not refer to

any such secret statement on the basis of which the petitioner

was asked to show cause for his proposed externment. This

aspect has resulted in vitiating the impugned order.

It is also to be noted that when the intervenors,

who are six in numbers, have come up with the specific

grievance that they had lodged reports against the petitioner,

the show cause notice does not indicate that the Authorities

have sought to rely upon these statements made by the

intervenors while seeking to extern the petitioner. It is thus

apparent that relevant material available with the Authorities

has also not been taken into consideration before directing

externment of the petitioner.

10. Another aspect to be taken into consideration is,

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Judgment Cr WP No.317.16

that the show cause notice indicates five offences being

registered in Ambazari Police Station against the petitioner.

The order of externment, however, relates to the entire area of

the Commissionerate at Nagpur. The impugned order does not

indicate any such reason as to why the petitioner was required

to be externed from the entire area of the Commissionerate at

Nagpur in the backdrop of the show cause notice referring only

to five offences pertaining to Ambazari Police Station. To that

extent, the impugned order is excessive in nature.

11. In view of aforesaid, we find that impugned order

of externment dated 11.4.2016 is liable to be set aside on the

ground that the same has been passed without due application

of mind and without taking into consideration relevant aspects.

At the same time, we also find that when the intervenors had

expressed willingness to lodge reports against the petitioner

and were also willing to come before the Authorities in that

regard, no steps in that direction have been taken into

consideration by the Externing Authority. Cognizance of

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Judgment Cr WP No.317.16

grievances that could have helped the Authorities in sustaining

the order of externment has not been taken for which there is

no explanation. In that view of the matter, as we find that the

Authorities have not given due consideration to this aspect of

the matter, the intervenors would be entitled to receive costs of

Rs.1,000/- (rupees one thousand only) each from respondent

No.1. Accordingly, following order is passed:

O R D E R

1. Order dated 11.4.2016, passed by respondent

No.3, is set aside.

2. Respondent No.3 shall take into consideration

the matter available on record and pass fresh order

within a period of four months from today.

3. The applicants in Criminal Application No.70 of

2016 would be entitled to receive costs of

Rs.1,000/- (rupees one thousand only) each from

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Judgment Cr WP No.317.16

respondent No.1. The amount of costs be paid to

them within a period of six weeks from today.

Rule is made absolute in aforesaid terms.

                           JUDGE                                  JUDGE
                                 
    !!  BrWankhede  !!
          
       






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     Judgment
                                                                          Cr WP No.317.16




                                                                                              





                                                                      
                                  C E R T I F I C A T E

I certify that this Order/Judgment uploaded is a true and correct

copy of original signed Order.

Uploaded by : Bhushan R.Wankhede. Uploaded on : 30/09/2016 (Personal Assistant)

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