Gulab Hussain Naurangabade vs The Sub Divisional Magistrate ...
2017 Latest Caselaw 7094 Bom

WP  386/17                                            1                          Judgment

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

                 CRIMINAL WRIT PETITION No. 386/2017

Gulab Hussain Naurangabade,
Aged about 45 years, 
r/o Gaoli Pura, Digras, Tah. Digras,
District Yavatmal.                                                           PETITIONER
                                       .....VERSUS.....

1.    The Sub Divisional Magistrate,
      Pusad, District Yavatmal.
2.    Police Inspector, Police Station Digras,
      Tah. Digras, District Yavatmal.                                         RESPONDE
                                                                                       NTS


                     Shri M.L. Jadhao, Counsel for the petitioner.
         Shri P.S. Tembhare, 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.)

RULE. Rule made returnable forthwith. The criminal writ

petition is heard finally at the stage of admission with the consent of the

learned counsel for the parties.

2. By this criminal writ petition, the petitioner challenges the

order of the respondent no.1-Sub-Divisional Magistrate, dated 03.04.2017

externing the petitioner from Yavatmal district for a period of six

months.

WP 386/17 2 Judgment

3. Inter alia, it is submitted on behalf of the petitioner that

the impugned order reflects the non-application of mind, inasmuch as

though the petitioner was acquitted in three out of the nine offences

that were registered against him during a span of ten years, the Sub-

Divisional Magistrate has wrongly recorded a finding while passing

the order of externment that the petitioner has committed nine

offences that are serious in nature during the period from 1998 to

2016. It is stated that though the petitioner was acquitted in three

of the offences and this fact was brought to the notice of the

Sub-Divisional Magistrate, by the reply to the show cause notice

under Section 59 of the Maharashtra Police Act, the said fact is not

considered by the Sub-Divisional Magistrate and the order of externment

is wrongly passed.

4. Shri Tembhare, the learned Additional Public Prosecutor

appearing for the respondents, does not dispute that the petitioner was

acquitted of three out of the nine offences that were registered against

him. It is stated that the impugned order is, however, based on the fact

that during the year 2016, the petitioner had committed three serious

offences in the months of January, February and July. It is stated that no

leniency should be shown in the case of the petitioner.

WP 386/17 3 Judgment

5. On a perusal of the show cause notice, the impugned order as

also the judgments of the trial Court by which the petitioner is acquitted,

it appears that the Sub-Divisional Magistrate has not applied his mind to

the material on record before passing the impugned order. In the crime

chart of the petitioner, nine offences are mentioned and only in respect of

one of the offences, the petitioner is shown to have been acquitted. We

however find from the judgments that are annexed to the writ petition

that the petitioner is acquitted in three offences out of the nine that are

registered against him. An incorrect finding is however recorded by the

Sub-Divisional Magistrate that the petitioner has committed nine offences

from the year 1998 till the year 2016. If the order of the externing

authority would have been based on the three offences that were

allegedly committed by the petitioner in the year 2016, there may have

been nothing wrong but the order of externment appears to have been

based on a finding that nine offences have been committed by the

petitioner. Since the said finding is clearly incorrect and is contrary to the

material on record, the impugned order is liable to be set aside.

6. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside.

Rule is made absolute in the aforesaid terms. Order accordingly.

               JUDGE                                              JUDGE
APTE