Shaikh Nawaz Shaikh Akbar vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7301 Bom

WP  842/17                                           1                           Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                 CRIMINAL WRIT PETITION No. 842/2017
Shaikh Nawaz Shaikh Akbar,
Age 40 years, Occ. Labor,
r/o Azampura, Balapur, District Akola.                                      PETITIONER
                                    .....VERSUS.....
1.    State of Maharashtra,
      Through Police Station Officer, Balapur
      Police Station, Balapur Dist. Akola.
2.    Sub-Divisional Officer, Balapur,
      District Akola.                                                        RESPONDE
                                                                                      NTS

                        Shri M. Badar, Counsel for the petitioner.
          Shri S.S. Doifode, Additional Public Prosecutor for the respondents.

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

DATE : 19 TH SEPTEMBER, 2017.

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

RULE. Rule is 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 Sub-Divisional Magistrate, Balapur, dated 16.08.2017

externing the petitioner for a period of three months from Akola district.

3. Shri Badar, the learned counsel for the petitioner, inter alia,

submitted that the impugned order is liable to be set aside as though out

of the four offences that were registered against the petitioner, the

petitioner is acquitted in two, the Sub-Divisional Magistrate has

WP 842/17 2 Judgment

wrongfully observed in the impugned order that all the four cases are

pending against the petitioner. It is submitted that the order suffers from

non-application of mind inasmuch as, though the judgments of the trial

Court acquitting the petitioner in two criminal cases were tendered by the

petitioner before the Sub-Divisional Magistrate, there is failure on the

part of the authority to consider them. It is submitted that though the

externment of the petitioner is under the provisions of Section 56(1)(b)

of the Bombay Police Act, there is no finding in the order of the Sub-

Divisional Magistrate that witnesses are not willing to come forward to

give evidence in public against the petitioner. It is submitted that though

several other grounds are raised in the writ petition for challenging the

impugned order, the order could be quashed and set aside on the

aforesaid couple of grounds.

4. Shri Doifode, the learned Additional Public Prosecutor

appearing for the respondents, has supported the order of the Sub-

Divisional Magistrate. However, it is fairly stated on the basis of the

original Record & Proceedings that are produced in the Court, today

that the in-camera statements of two witnesses were recorded. It is

admitted that there is nothing in the show cause notice to show that the

in-camera statements of two witnesses were recorded before the show

cause notice under Section 59 of the Act was served on the petitioner. It

WP 842/17 3 Judgment

is fairly admitted that no finding is recorded in the order that the

witnesses were not ready to come forward to depose against the

petitioner. It is also admitted on a reading of the impugned order and on

the perusal of the documents annexed to the petition that though the

petitioner is acquitted in two of the offences that are registered against

him, the impugned order shows that all the four offences are pending

against the petitioner.

5. On a reading of the impugned order and on a perusal of the

documents annexed to the petition, it appears that the impugned order is

liable to be quashed and set aside as it suffers from non-application of

mind. As many as four offences are registered against the petitioner and

the petitioner is acquitted in two of them. The judgments of the trial

Court acquitting the petitioner were produced before the Sub-Divisional

Magistrate but the authority had failed to consider the same. It is

wrongfully mentioned in the impugned order that all the four offences are

pending against the petitioner. Also, though the Sub-Divisional

Magistrate had recorded the statements of two witnesses in-camera, there

is no reference to the said statements either in the show cause notice

served on the petitioner under Section 59 of the Act or in the impugned

order passed by the Sub-Divisional Magistrate. As rightly submitted on

behalf of the petitioner since the impugned order suffers from non-

application of mind, the same is liable to be quashed and set aside.

WP 842/17 4 Judgment

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.

              JUDGE                                    JUDGE

APTE