Bombay High Court
Rohit S/O Madhukar Awwalwar vs The State Of Maharashtra, Thr. ... on 18 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 67 OF 2021
Rohit S/o. Madhukar Awwalwar,
Aged 27 years, Occ. Labour,
R/o. Murtizapur, Dist. Akola . . . PETITIONER
...V E R S U S..
1. The State of Maharashtra through
Superintendent of Police, Akola.
2. Divisional Commissioner,
Amravati Division, Amravati. . . . RESPONDENTS
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Shri R. M. Daga, Advocate for petitioner.
Shri V. A. Thakre, A.P. P. for respondents/State.
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CORAM :- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATED :- 18.08.2021
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
3. By this petition under Article 226 of the Constitution of
India, the petitioner is challenging the order dated 30.11.2020 passed
by the respondent no. 1 in proceeding no. 18(2)/2020 and the order
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dated 10.01.2021 passed by the respondent no. 2 in Appeal No.
92/MPA.1951/u/s60/Ext./G.B.-7/2020/Akola.
4. The present petition arising out of the order of externment,
which commenced in view of show cause notice dated 23.11.2020
issued by the respondent no. 1. In the show cause notice, the
respondent no. 1 has mentioned five offences, which was basis of
initiation of externment proceeding under Section 59 of the Bombay
Police Act, 1951. It appears that the petitioner, by reply dated
30.11.2020, submitted his explanation in relation to the five cases
mentioned in the said show cause notice.
5. The respondent no. 1 by order dated 30.11.2020 passed
under Section 55 of the Bombay Police Act, externed the petitioner
and another for a period of two years from Akola district. It is
pertinent to note that in the order dated 30.11.2020, the Externing
Authority has taken into consideration nine offences as mentioned in
the chart of the said order. The petitioner has therefore challenged the
order dated 30.11.2020 by way of filing Appeal No. 7/2020. The
Appellate Authority by the impugned order dated 10.01.2021
dismissed the appeal of the petitioner.
6. From the observations made in the order of the Appellant
Authority, it appears that the Appellant Authority has also taken into
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consideration nine offences registered against the petitioner though,
the show cause notice was in respect of five offences only.
7. Shri R. M. Daga, learned Advocate for the petitioner placed
reliance on the judgment of this Court in the case of Parag S/o.
Narsingh Hitange Vs. State of Maharashtra and another (Criminal Writ
Petition No. 114/2021, decided on 09.02.2021). He submitted that
the petitioner in the said Writ Petition was externed alongwith the
present petitioner through common order by the Externing Authority.
He invited our attention to paragraph no. 7 of the judgment, wherein
this Court recorded that the notice issued to the said petitioner was in
relation to only six crimes but, while passing the impugned order, the
Externing Authority has relied upon material comprising of nine crimes
and therefore, this Court set aside the order of externment.
8. The respondents have filed reply dated 22.07.2021. It is
stated in the said reply that five crimes registered against the
petitioner and the petitioner is a gang member running gambling club.
The reply does not explain as to how the Externing Authority has taken
into consideration nine crimes against the petitioner though, the show
cause notice was issued to the petitioner was restricted only to five
offences.
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9. In view of the judgment of this Court in Criminal Writ
Petition No. 114/2021 and considering the fact that the Externing
Authority while issuing show cause notice have taken into
consideration five offences but, while passing the impugned order had
considered nine offences. Hence, we are of the opinion that the
material relied upon by the Externing Authority, which was used
against the petitioner was not furnished to the petitioner and
therefore, the exercise of powers by the Externing Authority was
illegal.
10. For the forgoing reasons, we pass the following order:-
The impugned order dated 30.11.2020 passed by the
respondent no. 1 in proceeding no. 18(2)/2020 and the impugned
order dated 10.01.2021 passed by the respondent no. 2 in Appeal No.
93/MPA.1951/u/s60/Ext./G.B.-7/2020/Akola are quashed and set
aside against the petitioner.
Rule is made absolute in the above terms.
JUDGE JUDGE
RR Jaiswal
