Taswar Khan S/O. Taslim Khan vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 10034 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                 CRIMINAL WRIT PETITION NO.983 OF 2017
                                 WITH
                 CRIMINAL WRIT PETITION NO.1035 OF 2017



  1) CRIMINAL WRIT PETITION NO.983 OF 2017 :


  Junaid Zafar Hussain Khatib,
  Aged about 32 years, Occ.Agrilst.,
  r/o. Raushanpura, Old City,
  Murtizapur, Tq.Murtizapur,
  Distt. Akola.                           ..........      APPELLANT


          // VERSUS //


  1) State of Maharashtra,
      Through Police Station
      Officer, P.S., Murtizapur,
      Tq.Murtizapur, Distt.
      Akola.

  2) Sub-Divisional Magistrate,
       Murtizapur, Tq.Murtizapur,
       Distt. Akola.                        ..........       RESPONDENTS



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  ____________________________________________________________  
                Mr.U.J.Deshpande, Advocate for the Petitioner.
                Mr.M.K.Pathan, A.P.P. for the Respondent/State.
  ____________________________________________________________



  2) CRIMINAL WRIT PETITION NO.1035 OF 2017 :


  Taswar Khan s/o. Taslim Khan,
  Aged about 32 years, Occ.
  Business, r/o. Pathanpura,
  Murtizapur, Tq.Murtizapur,
  Distt. Akola.                          ..........      APPELLANT


          // VERSUS //


  1) State of Maharashtra,
      Through Police Station
      Officer, P.S., Murtizapur,
      Tq.Murtizapur, Distt.
      Akola.

  2) Sub-Divisional Magistrate,
       Murtizapur, Tq.Murtizapur,
       Distt. Akola.                        ..........       RESPONDENTS


  ____________________________________________________________  
                Mr.U.J.Deshpande, Advocate for the Petitioner.
                Mr.M.K.Pathan, A.P.P. for the Respondent/State.
  ____________________________________________________________




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  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
  Date of reserving the Judgment   : 19.12.2017.
  Date of pronouncing the Judgment : 22.12.2017.
  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=


                                     CORAM     :  R.K.DESHPANDE 
                                                          AND
                                                          M.G.GIRATKAR, JJ.


  JUDGMENT  (Per M.G.Giratkar, J)   :

1. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel for respective parties.

2. In both these petitions, the petitioners have challenged

the impugned order of externment passed by respondent no.2 on

17.7.2017.

3. It is submitted that proposal was submitted by

respondent no.1 on 16th August, 2016 in respect of petitioner Junaid

Zafar Hussain Khatib (Criminal Writ Petition No.983 of 2017) and on

23rd August, 2016 in respect of petitioner Taswar Khan s/o. Taslim

Khan (Criminal Writ Petition No.1035 of 2017) for their externment

on the ground that criminal cases under the Indian Penal Code are

pending against them. The proceedings to prevent breach of peace

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were also initiated before the Executive Magistrate. The petitioners

are not improving their behaviour. Due to their criminal activities,

there is danger to public person and property. On the request of

respondent no.1, the externment proceedings were started. The show

cause notices were issued to the petitioners. Said show cause notices

were replied by the petitioners and submitted that some criminal

cases are decided and they are acquitted. The proceedings under

Sections 107 and 110 of the Code of Criminal Procedure are also

closed. They are peace loving citizens. They have not committed any

breach of public peace. Therefore, prayed to drop the externment

proceedings.

4. Respondent no.2 passed the impugned order on

17.7.2017. Both the petitioners are externed for a period of two

years from Akola.

5. It is submitted that, in the show cause notice, nothing is

mentioned about the in-camera statements. But, in the impugned

order, it is mentioned that the in-camera statements were recorded

and witnesses are not coming forward to depose against them.

Therefore, there was no opportunity to the petitioners to explain.

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6. It is submitted that the proposal for externment was

submitted by respondent no.1 on 21.12.2016. There is inordinate

delay in passing the impugned order.

7. It is submitted that offences pending against the

petitioner are of the year 2015. There is no live link to extern the

petitioners from Akola district.

8. Heard Mr.U.J.Deshpande, learned Counsel for the

petitioners. He has submitted that the false cases were filed against

the petitioners. In fact, the petitioners obtained permission for the

procession of Eid etc., even though they are prosecuted for not taking

permission. Offences registered against the petitioners are in respect

of religious procession and not any other offence. It is submitted that

there are two groups of their community. The petitioners are

maintaining Eidgah etc. Other party opposed to religious activity of

the petitioners. Offences are registered against the complainants of

rival party of the same community.

9. Learned Counsel has submitted that last offence was

registered on 31.5.2016 and the impugned orders are passed on

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17.7.2017. Therefore, there is no live link. Learned Counsel has

submitted that there is no subjective satisfaction of the respondent

no.2 while passing the impugned order to extern the petitioners.

10. Mr.M.K.Pathan, learned A.P.P. for the Respondent/State

has pointed out the decision of Division Bench of Principal Seat in

the case of Pankaj Prakash Shimpi vs. The Deputy Commissioner of

Police, Zone-II, Nashik City and Others, Criminal Writ Petition

No.2742 of 2016 and submitted that subjective satisfaction is not

necessary.

11. In the afore-cited decision, it is observed as under :

"It is not possible to scrutinize the veracity of subjective satisfaction of the externing authority. Law empowers him to record satisfaction and not to explain in the order of externment as to how and in what manner the witnesses are not willing to come forward to depose against the externee. The material nature of allegations have been stipulated in the notice as well as order of externment and it was not necessary to mention in detail as to how and in what manner each and every witness which is part of the cases pending against the

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Petitioner, is not willing to depose against the Petitioner."

Therefore, subjective satisfaction is not necessary.

12. Learned A.P.P. has fairly submitted that there is no live

link to connect the petitioners. In the case of Kanifnath Radhakishan

Popalghat .vs. State of Maharashtra and Others reported in 2017

DGLS (Bom.) 243, this Court has held that " The reasons assigned by

the authority also suffers from not demonstrating the live link

between the offences relied upon in the show cause notice and the

order passed by authority externing the petitioner from the territorial

limits of Ahmednagar District. " In the case of Dilip Laxman

Kokare .vs. S. M. Ambedkar and another reported in 1991 Mh.L.J.

833, there was delay of 1 ½ years in passing the externment order

after show cause notice. The Police Authorities vaguely stated that

externment proceedings could not be completed due to delay on the

part of externee and his counsel. The Division Bench of this Court

holding that such an explanation cannot be availed of by externment

authority, has quashed the order of externment in view of abnormal

delay.

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13. From the perusal of proposal submitted by respondent

no.1 and the impugned order passed by respondent no.2, it is clear

that there is much more delay in passing the impugned order. Hence,

in view of the Judgment in the case of Dilip Laxman Kokare (cited

supra), the impugned order is liable to be quashed and set aside.

There is also no live link. The last offence was registered on

31.5.2016 and impugned order is passed on 17.7.2017. Therefore,

there was no live link when the impugned order was passed by

respondent no.2.

14. In view of above observation, the impugned orders

dt.17.7.2017 passed by respondent no.2 are liable to be quashed and

set aside. Hence, we pass the following order.

// ORDER //

Criminal Writ Petition Nos. 983 of 2017 and

1035 of 2017 are hereby allowed in terms of prayer

clause (i) of the Criminal Writ Petitions.

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We hereby quash and set aside the impugned

orders dt.17.7.2017 passed by respondent no.2.

No order as to costs.

                               JUDGE                        JUDGE
   



  [jaiswal]





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