Shri. Rajesh S/O. Jiwan Jangle vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 9194 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                  CRIMINAL WRIT PETITION NO.599 OF 2017



  Rajesh s/o. Jiwan Jangle,
  Aged about 34 years, Occ.
  Business, r/o. Ambedkar Nagar,
  Kantrol Wadi, Tq. and Distt.
  Nagpur.                                  ........          PETITIONER



           // VERSUS //


  1. State of Maharashtra,
      Through Divisional Commissioner,
      Nagpur Division, 
      District Nagpur.

  2. State of Maharashtra,
      Through Assistant Police 
      Commissioner, M.I.D.C.
      Division, Nagpur City,
      District Nagpur.


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  3. Deputy Commissioner of 
      Police, Zone/Circle No.1,
      Nagpur City, District
      Nagpur.

  4. State of Maharashtra,
      Through Police Station,
      Wadi, District Nagpur,
      Tq. and District Nagpur.                     ..........       RESPONDENTS


  ____________________________________________________________
               Mr.Akash B. Moon, Advocate for Petitioner.
            Mr.S.S.Doifode, A.P.P. for the Respondents/State.


                                 **********
  Date of reserving the Judgment             :   22.11.2017.
  Date of pronouncement of the Judgment      :   30.11.2017.
                                 **********


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

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

1. Rule returnable forthwith. Heard finally with the

consent of the learned Counsel for the respective parties.

2. The petitioner has challenged externment order passed

by respondent no.1/Divisional Commissioner, Nagpur Division,

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Nagpur in Appeal No.13 of 2017 and the order No.04 of 2017,

dt.10.4.2017 passed by respondent no.3/Deputy Commissioner of

Police Zone/Circle No.1, Nagpur.

3. It is submitted that the petitioner is a businessman

running a hotel by name 'Sahil Restaurant' situated on Khadgaon

Road, Wadi. He also possesses a godown, which he used to give on

rent. The petitioner is subjected to false prosecution by Police

Authorities merely on suspicion.

4. For the first time, a show cause notice u/s.59 of the

Bombay Police Act, 1951 was issued by the Assistant Police

Commissioner, M.I.D.C. Division, Wadi, District Nagpur, on

15.3.2017 for action under Section 56(1)(a)(b) of the Bombay Police

Act. In pursuance of the said notice, the petitioner went to the Office

of respondent no.2 along with witnesses to furnish his explanation to

the charges. However, respondent no.2 was not present. Petitioner

time to time went to his Office, but he was not present. Therefore, no

opportunity of hearing was given to the petitioner before forming an

opinion.

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5. It is submitted that the following are four offences

shown pending against the petitioner :

Sr.No. Date of Sections and Crime No. Status commission Station of offence

1. 15.06.14 Sec.324, 34 of 176/2014 Acquitted IPC, Police Station, Kalmeshwar

2. 21.02.15 307, 34 of Indian 67/2015 Pending Penal Code, Police Station, Wadi

3. 28.10.15 341, 324, 34 of 278/2015 Pending IPC, Police Station, Wadi

4. 29.09.15 364 (A), 386, 395, 22/2016 Pending 397, 307, 120 (B) of Indian Penal Code and Section 3, 25 of Arms Act and Section 135 of Mah. Police Act Arms Act, Police Station, Wadi

6. It is submitted that the notice prima facie is illegal. The

petitioner is falsely implicated in the offences. In one of the offences

he is acquitted. Again notice was issued on 24.3.2017. In the said

notice, in-camera statements of witnesses were not mentioned.

Petitioner had no opportunity to explain the show cause notice. The

impugned order came to be passed on 10.4.2017. The impugned

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order also does not show about the in-camera statements of

witnesses.

7. The impugned order dt.10.4.2017 passed by the Deputy

Commissioner of Police was challenged before the Divisional

Commissioner, Nagpur in Appeal No.13 of 2017. The said appeal

was dismissed on 3rd June, 2017, without considering the grounds

raised by the petitioner.

8. It is submitted that the last offence shown against the

petitioner is of the year 2016. The show cause notice is of the year

2017 and therefore, there is no live link. At last, it is submitted that

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

9. Heard Mr.A.B.Moon, learned Counsel for the petitioner.

He has submitted that in the show cause notice dt.24.3.2017, there is

no reference of in-camera statements. Therefore, petitioner had no

any opportunity to give explanation. The impugned order also does

not show any in-camera statements nor the time and date of

recording statements.

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10. Learned Counsel has submitted that two offences are in

respect of Police Station, Wadi and one offence is in respect of Police

Station, Kalmeshwar. He is wrongly externed from whole Nagpur

District for a period of one year. In support of his submission, the

learned Counsel has pointed out the following decisions :

a) Anna s/o. Bhimrao Dhavale .vs. The State of

Maharashtra and Others, 2017 ALL MR (Cri) 2099.

b) Bal @ Rajvardhan Vitthalrao Nimbalkar .vs. The

Divisional Commissioner, Pune Division and Others,

2016 ALL MR (Cri) 3994.

c) Rohit s/o. Ramesh Nalawade vs. The State of

Maharashtra and Others, 2017 ALL MR (Cri) 3443.

d) Kiran Ramrao Shinde .vs. The Sub-Divisional

Magistrate, Jath, 2016 ALL MR (Cri) 3915.

11. Heard Mr.S.S.Doifode, learned A.P.P. for

Respondents/State. He has strongly supported the impugned

order and submitted that presence of the petitioner is

dangerous to the public. Learned A.P.P. has submitted that the

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impugned order is rightly passed against the petitioner. At

last, it is submitted that the petition is liable to be dismissed.

12. Perused the impugned order and show cause

notice dt.24.3.2017. From perusal of the show cause notice

and the impugned order, it is apparent that recording of in-

camera statements of the witnesses is not mentioned. General

statement is made that the witnesses are not ready to come

forward to give the statement. The chapter proceedings to

prevent breach of peace were initiated against the petitioner

and the last proceeding was of the year 2014, u/s.110 of the

Code of Criminal Procedure. Last offence is shown of the year

2016 and notice is issued in the month of March, 2017.

Therefore, there is no live link to show that there is possibility

of committing like offences by the petitioner.

13. In the case of Bal @ Rajvardhan Vitthalrao

Nimbalkar vs. The Divisional Commissioner, Pune Division

and Others reported in 2016 ALL MR (Cri) 3994, the Division

Bench of this Court has observed that last offence registered

against the petitioner was of the year 2013 and the show

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cause notice is issued in the year 2015. There is no live link

between the offence committed and the action taken against

the petitioner. Therefore, the impugned order is liable to be

quashed and set aside." In the present case also, the last

offence registered was in the year 2016. Notice was issued in

the month of March, 2017. The impugned order does not

show that there is any live link between the last offence and

the proceedings. Hence, the impugned order is liable to be

quashed and set aside.

14. Issue of live link is also taken into consideration

in the case of Rohit s/o. Ramesh Nalawade .vs. the State of

Maharashtra and Others reported in 2017 ALL MR (Cri)

3443 by the Division Bench of this Court has held that the last

offence was of the year 2011 and the proceedings were

initiated in 2016 and therefore, there is no live link.

15. In the case of Anna s/o. Bhimrao Dhavale .vs.

The State of Maharashtra and Others reported in 2017 ALL

MR (Cri) 2099, the Division Bench of this Court held that

"statements of witnesses were not recorded to form opinion

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that they are not willing to give evidence in public due to fear

of petitioner. Also it is not mentioned in the show cause notice

as to on what date, time, and place the petitioner used force

against the witnesses which created fear in their minds. If that

be so, the petitioner could not get opportunity to challenge

externment proceedings. In view of non-compliance of Section

56(1)(a)(b), the externment order is not sustainable in law."

In the present case also, the show cause notice as well as the

impugned order does not show as to on what date, time and

place the petitioner used force against the witnesses which

created fear in their minds. The show cause notice

dt.24.3.2017 and the impugned orders dt.10.4.2017 and

3.6.2017do not show recording of any in-camera statement.

Therefore, in view of the above cited judgments, the

impugned order is liable to be quashed and set aside.

16. For the reasons stated above, we are inclined to

allow the petition. Hence, we pass the following order.

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                                     // ORDER //

       

The petition is allowed in terms of prayer clause (I) of

the petition, which reads as under :

"(I) Quash and set aside the impugned order dated 03.06.2017, (Annexure-7) passed by Respondent No.1, Divisional Commissioner, Nagpur Division, Nagpur in Appeal No.13/2017, & order bearing No.04/2017 dated 10/04/2017, (Annexure-4) issued by the Respondent No.3, Deputy Commissioner of police Zone/circle No.1, Nagpur against the Petitioner, view of above and to meet the ends of justice."

No order as to costs.

                           JUDGE                       JUDGE
   



  [jaiswal]





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