Sheikh Riyaz Sheikh Majid vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 8546 Bom

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

             Criminal Writ Petition No.902 of 2017

  Sheikh Riyaz Sheikh Majid,
  Aged about 36 years,
  Occupation - Labour,
  R/o Tajpura Ward,
  Umerkhed,
  Tq. & Distt. Yavatmal.                       ... Petitioner


       Versus


  1. The State of Maharashtra,
     through Police Station Officer,
     Police Station Umerkhed,
     Tq. & Distt. Yavatmal.

  2. The Sub-Divisional Magistrate,
     Umerkhed, having office at
     Umerkhed, Tq. & Distt. Yavatmal.          ... Respondents


  Shri T.S. Deshpande, Advocate for Petitioner.
  Shri S.S. Doifode, Additional Public Prosecutor for Respondents.



                Coram : R.K. Deshpande & M.G. Giratkar, JJ.

                Date    : 8  th  November, 2017
                                               






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Oral Judgment (Per R.K. Deshpande, J.) :

1. Rule made returnable forthwith. Heard finally with the

consent of the learned counsels appearing for the parties.

2. In the show cause notice issued on 13-4-2017 for

externment, there no reference to the in-camera statements

recorded of the witnesses. This position is not disputed.

3. In the decision of the Division Bench of this Court in the

case of Salauddin s/o Akramuddin v. State of Maharashtra and

others, reported in 2014 ALL MR (Cri) 993, this Court has held in

paragraph 3(ii) as under :

"The other ground is that in the impugned order, the respondent/Authority has relied on two in-camera statements. Perusal of the show cause notice reveals that there iis no mentioned regarding the same in it. By now it is a settled law that if any material is taken into consideration, of which notice is not given to the person against whom action is proposed, the same would be

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violative of principles of natural justice."

4. The Division Bench has, keeping in view the aforesaid

position, set aside the order of externment which makes a

reference to the in-camera statements of witnesses. Similar view

is also taken by the Division Bench of this Court in the case of

Sanjay s/o Balasaheb Ruptakke v. The State of Maharashtra and

others, reported in 2017 ALL MR (Cri) 3983. Paragraph 5 of the

said decision is reproduced below :

"5. Upon careful perusal of the contents of the show cause notice which was issued by the respondent No.3 to the petitioner, there is no mention/reference of in-camera statement of witnesses recorded by the respondent No.3. The contention of the learned APP appearing for the State that in the notice issued by the SDPO, Shrirampur, there is reference to such in-camera statements, is of no use, since the mandate of the provision of Section 56(1)(b) of the Bombay Police Act, contemplates that there has to be specific reference of such in-camera statements in show cause notice issued to the proposed externee, so as to enable him to file his reply/put forth his contention to

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such notice. Even upon careful perusal of the discussion in the impugned order passed by the respondent No.3, we find that there is only a passing reference about recording of in-camera statements of the witnesses by the Sub-Divisional Police Officer. It is true that in view of the judgment of the Supreme Court in the case of "Pandharinath Shridhar vs. Deputy Commissioner of Police" reported in AIR 1973 SC 630, it is not necessary or desirable to mention the name and date of the incident in the gist of incamera statements of the witnesses, however, it is necessary to make a reference of those in-camera statements and gist of such statements, so as to enable the proposed externee to reply to the show cause notice. The issue raised in this petition is no longer res-integra and is covered by the authoritative pronouncement in the case of Yashwant Damodar Patil (Supra)."

5. In view of the aforesaid law laid down by this Court,

which is binding upon us, we have no option but to allow the

writ petition in view of the undisputed factual position in the

present case and set aside the order impugned.

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6. Hence, the writ petition is allowed. The order

dated 31-7-2017 of externment passed by the Sub-Divisional

Magistrate, Umarkhed is hereby quashed and set aside.

7. Rule is made absolute in the aforesaid terms. No order

as to costs.

(M.G. Giratkar, J.) (R.K. Deshpande, J.)

Lanjewar, PS