Pawan S/O. Mugutrao Mahalle vs Superintendent Of Police, Akola ...
2017 Latest Caselaw 7053 Bom

WPs  544&545/17                                       1               Common  Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                 CRIMINAL WRIT PETITION No. 544/2017
Pawan S/o Mugutrao Mahalle,
Aged about 29 years, Occ. Labour,
R/o Deshmukh Faill, Akola,
Tq. & Dist. Akola.                                                           PETITIONER
                                    .....VERSUS.....
1.    Superintendent of Police, Akola,
      Tq. & Dist. Akola.
2.    Sub-Divisional Police Officer, 
      Akola City, Tq. & Dist. Akola.

3.    Divisional Commissioner, Amravati.                                      RESPONDE
                                                                                       NTS
                                           WITH
                 CRIMINAL WRIT PETITION No. 545/2017
Sandeep S/o Satish Batho,
Aged about 29 years, Occ. Labour,
R/o Deshmukh Faill, Akola,
Tq. & Dist. Akola.                                                           PETITIONER
                                    .....VERSUS.....
1.    Superintendent of Police, Akola,
      Tq. & Dist. Akola.
2.    Sub-Divisional Police Officer, 
      Akola City, Tq. & Dist. Akola.

3.    Divisional Commissioner, Amravati.                                      RESPONDE
                                                                                       NTS

 Shri A.S. Mardikar, Senior Counsel with Shri H.R. Gadhia, Counsel for the petitioners.
           Shri A.M. Joshi, Additional Public Prosecutor for the respondents.


                                        CORAM :SMT.VASANTI  A  NAIK AND
                                                      M.G. GIRATKAR, JJ.                

DATE : 13 TH SEPTEMBER, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

Since the common order passed against the petitioners under

Section 55 of the Maharashtra Police Act is challenged in these criminal

writ petitions and the grounds raised in the petitions are similar, they are

heard together and are decided by this common judgment.

WPs 544&545/17 2 Common Judgment

2. RULE. Rule made returnable forthwith. The criminal writ

petitions are heard finally at the stage of admission with the consent of

the learned counsel for the parties.

3. By these criminal writ petitions, the petitioners challenge the

orders of the respondent no.3-Divisional Commissioner, Amravati thereby

maintaining the common order of the respondent no.1-Superintendent of

Police externing the petitioners from Akola district for a period of two

years.

4. The petitioners, who are allegedly the members of the gang or

body of persons involved in causing danger or alarm, were served with

the show cause notice under Section 59 of the Maharashtra Police Act as

to why they should not be externed from five districts mentioned therein

as they were involved in serious crimes and their externment was

necessary to prevent violence and alarm. In the show cause notice served

on the petitioner in Writ Petition No.544 of 2017, ten offences were

mentioned in the crime chart. In the show cause notice served on the

petitioner in Writ Petition No.545 of 2017, only four offences were

mentioned in the crime chart. The petitioners submitted their reply to the

respective show cause notices and pointed out that they were acquitted in

most of the offences that were registered against them. The respondent

WPs 544&545/17 3 Common Judgment

no.1-Superintendent of Police, Akola, however, externed both the

petitioners from Akola district for a period of two years after recording a

finding that ten offences are registered against the petitioners and the

activities of the petitioners who are the members of the gang are causing

and would be likely to cause alarm, danger and violence. The common

order passed by the Superintendent of Police was challenged by the

petitioners in separate appeals before the Divisional Commissioner. The

Divisional Commissioner, however, maintained the order passed by the

respondent no.1-Superintendent of Police.

5. Shri Mardikar, the learned Senior Counsel appearing for the

petitioners, submitted that the impugned orders depict non-application of

mind by the externing authority, inasmuch as though the petitioner in

Writ Petition No.544 of 2017 is acquitted in seven out of ten cases that

were pending against him, it is observed by the Superintendent of Police

in the impugned order that ten cases are pending against the petitioners

in respect of offences pertaining to violence. It is submitted that though

in the earlier part of the impugned order, the Superintendent of Police

has recorded that some judgments of acquittal were placed by the

petitioners on record, in the findings recorded by the Superintendent of

Police it is clearly mentioned that the petitioners are involved in ten

crimes that are registered against them. It is stated that the order further

WPs 544&545/17 4 Common Judgment

depicts non-application of mind, inasmuch as in the show cause notice

served on the petitioner in Writ Petition No.545 of 2017 under Section 59

of the Act, only four offences are shown to have been registered against

him but in the impugned order that externs the petitioner in Writ petition

No.545 of 2017 being the member of the gang, there is an observation

that ten offences are pending. It is stated that the petitioner in Writ

Petition No.545 of 2017 is acquitted in three out of the four cases that

were pending against him. It is stated that since the Superintendent of

Police has not applied his mind to the material on record before passing

the impugned order, the same is liable to be quashed and set aside,

insofar as the petitioners are concerned.

6. Shri Joshi, the learned Additional Public Prosecutor appearing

for the respondents, has supported the impugned orders. It is submitted

that in the chart incorporated in the impugned orders, at least nine cases

are shown to have been pending and it is most likely that the petitioners

had not tendered the judgments in the cases in which they were acquitted

while furnishing the reply to the notice under Section 59 of the Act. It is

submitted that if this Court is of the view that a wrongful finding is

recorded by the Superintendent of Police while passing the impugned

order, this Court may remand the matter to the said authority for a just

decision.

WPs 544&545/17 5 Common Judgment

7. On a reading of the show cause notices and the impugned

orders and on a perusal of the other documents that are annexed to the

petitions including the memorandum of appeal filed by the petitioners

before the appellate authority, it appears that the impugned order suffers

from non-application of mind and the same is liable to be set aside insofar

as the petitioners are concerned. It appears from the memorandum of

appeal, annexed to the writ petitions that it was clearly brought to the

notice of the Superintendent of Police that the petitioner in Writ Petition

No.544 of 2017 was acquitted in as many as seven cases out of ten cases

that were pending against him and the petitioner in Writ Petition No.545

of 2017 was acquitted in three out of four cases that were pending

against him. Probably, the Superintendent of Police was aware of this

fact, as it is mentioned in the impugned order of externment that some

judgments were placed before him to point out that the petitioners were

acquitted in certain cases that were pending against them. Despite

making the aforesaid observations in the earlier part of the impugned

order, while recording the findings for externing the petitioners from

Akola district, it is observed that ten cases are filed against the petitioners

and the said cases pertain to serious crimes involving violence. Once the

petitioner in Writ Petition No.544 of 2017 was acquitted in seven out of

ten cases, only a reference to the three cases at the most could have been

made by the Superintendent of Police in the findings recorded by him for

WPs 544&545/17 6 Common Judgment

externing the petitioner. It is surprising that in the show cause notice

served on the petitioner in Writ Petition No.545 of 2017, though only four

offences are shown to have been registered against him, the impugned

order mentions that ten cases are pending. The reasons recorded by the

Superintendent of Police for externing the petitioners are not cogent and

they are also not supported by the material on record, as the

Superintendent of Police has mentioned about ten cases pending against

the petitioners when the petitioner in Writ Petition No.544 of 2017 was

acquitted in seven out of ten cases and the petitioner in Writ Petition

No.545 of 2017 was acquitted in three out of four cases. As rightly

submitted on behalf of the petitioners, since the impugned order does not

reflect the application of mind by the Superintendent of Police to the

material on record before externing the petitioners, the impugned orders

are liable to be set aside.

8. Hence, for the reasons aforesaid, the writ petitions are

allowed. The impugned orders are quashed and set aside, so far as the

petitioners are concerned.

Rule is made absolute in the aforesaid terms. Order

accordingly.

              JUDGE                                             JUDGE

APTE