Gajanan Janrao Khedkar vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 917 Bom

 CWP 56.17.odt                                1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

               CRIMINAL WRIT PETITION NO.56 OF 2017


 Gajanan Janrao Khedkar,
 Aged about 22 years,
 Occupation-Agriculturist,
 R/o. Gandhi Nagar, Banosa,
 Daryapur, Amravati.                               ..               PETITIONER

                               .. VERSUS ..

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

 2]     Sub-Divisional Magistrate,
        Daryapur, Tah. Daryapur,
        District-Amravati.

 3]     State of Maharashtra,
        Through Police Station Officer,
        Police Station, Daryapur,
        Tah-Daryapur, Distt.Amravati.              ..          RESPONDENTS



                     ..........
 Shri M.L. Jadhao, Advocate with Shri R.J. Shinde, Advocate
 for the petitioner,
 Shri V.P. Maldhure, A.P.P. for the respondents.
                     ..........

                               CORAM : B.R. GAVAI AND
                                       KUM. INDIRA JAIN, JJ.

DATED : MARCH 21, 2017.

ORAL JUDGMENT : (Per : B.R. GAVAI, J.)

Rule. Rule is made returnable forthwith. Heard

by consent.

2] The petitioner has approached this court being

aggrieved by order dated 19.9.2016 passed by respondent

no.2 under Section 56 of the Bombay Police Act, 1951

thereby externing the petitioner for a period of two years

from the area of Amravati and Akola districts.

3] The petitioner was served with a notice dated

9.5.2016 pointing out therein three offences that is Crime

Nos.6027/2014, 164/2014 and 28/2016. The petitioner was

called upon to show cause as to why action should not be

taken against him under the provisions of Section 56 (1)(a)

of the said act. The petitioner was again served with

another show cause notice dated 30.6.2016 therein pointing

out two offences that is Crime Nos.6027/2014 and 28/2016.

The petitioner has replied to the same on 8.8.2016. The

petitioner specifically submitted therein that insofar as first

offence is concerned, he is already acquitted. He had also

annexed the judgment of acquittal dated 17.12.2014.

However, respondent no.2, without considering the same,

passed an order of externment as aforesaid. Being

aggrieved thereby the present petition.

4] We find that the order totally suffers from non-

application of mind. Firstly, though the petitioner has been

acquitted insofar as Crime No.6027/2014 at Sr.No.1 and

though the judgment and order of acquittal has been placed

on record, the same has also been taken into consideration

by the externing authority. Apart from that the authority has

also taken into consideration the provisions of the Bombay

Prohibition Act while passing an order under Section 56 of

the Act.

5] The Division Bench of this court has taken a view

that while passing an order under Section 56 of the Act, the

offences under Bombay Prohibition Act cannot be taken into

consideration and only the offences which are specifically

specified under the provisions of Section 56 of the Act can

be taken into consideration.

6] In that view of the matter, we find that the order

suffers from non-application of mind and is liable to be set

aside on a short ground. Rule is made absolute in terms of

prayer clause (1).

(Kum. Indira Jain, J.) (B.R. Gavai, J.) Gulande, PA