Harish S/O Shankarrao Mate And ... vs State Of Mah. Thr. Secretary ...
2022 Latest Caselaw 7699 Bom

Judgment                                                  wp445.22

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



             CRIMINAL WRIT PETITION No. 445/2022.


1.Harish s/o Shankarrao Mate,
Aged about 30 years, Occupation -
Pvt. Work, resident of Chikhli
Kalamna Market, Near Hanuman
Temple, Kalamna, Nagpur.

2.Ritesh s/o Chandrabhan Darote,
Aged about 30 years, Occupation -
Pvt. Work, resident of Chikhli, Plot No.19,
Near House of Chafle, Kalamna,
Nagpur.                                     ...    PETITIONERS.

                                VERSUS

1. State of Maharashtra,
through Secretary, Mantralaya,
Mumbai.

2.Divisional Commissioner,
Nagpur Division, Civil Lines,
Nagpur.

3.Deputy Commissioner of Police,
Zone-5, Nagpur City, Nagpur.               ...    RESPONDENTS.


                         -----------------------
             Mr. H.G.Katekar, Advocate for Petitioners.
            Ms.M.H. Deshmukh, A.P.P. for Respondents.
                        ------------------------

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 Judgment                                                        wp445.22

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                                     CORAM : VINAY JOSHI, J.


CLOSED FOR JUDGMENT ON :                      03.08.2022.
JUDGMENT PRONOUNCED ON :                      05.08.2022.



JUDGMENT :

Considering the controversy involved in the matter, and

with the consent of learned Counsel appearing for the parties, the

matter is taken up for final disposal by issuing Rule, making the

same returnable forthwith.

2. Petitioners have claimed exception to the externment

order dated 12.04.2022 passed by respondent no.3 - Deputy

Commissioner of Police, Zone-5, Nagpur in terms of Section 56[1]

[A][b] of the Maharashtra Police Act, and consequential appellate

order dated 21.06.2022 of respondent no.2 - Divisional

Commissioner, Nagpur Division, Nagpur.

3. Both petitioners have been externed from Nagpur

Commissionarate and adjoining areas falling within the jurisdiction

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Judgment wp445.22

of Mouda, Kanhan and Khaperkheda Police Station for a period of

one year from the date of execution of the externment order.

Petitioners were even served with statutory show cause notice in

terms of Section 59 of the Act to which they responded. After

hearing the proposed externees, the Authority has passed the

impugned externment order. Petitioners filed an appeal in terms of

Section 60 before the Divisional Commissioner, Nagpur Division,

Nagpur who in turn dismissed the same, hence, this petition.

4. Petitioners have raised several grounds challenging the

legality and sustainability of the impugned order. The challenge is

raised on the ground that there is no live link in between the

externment proposal and the impugned order, which is passed after

a period of 9 months. It is submitted that the combined chart

containing 8 offences against the gang does not depict true picture as

only three offences at Sr.Nos.3, 6 and 8 are common. It is argued

that subjective satisfaction about in-camera statements has not been

recorded. Except last offence of the year 2021, all offences are quite

old and thus, they could not have been considered for initiating

action for externment. In support of said contention, petitioners

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Judgment wp445.22

have relied on several decisions of this Court. The learned Counsel

appearing for petitioners took me through the order of the Appellate

Authority to contend that there is total non application of mind, as

all above objections though raised, have not been dealt with by the

said Authority.

5. Perusal of the Appellate order indicates that most of the

part is devoted to the crime chart and the procedure followed by the

Authority while passing the externment order. The submissions on

behalf of petitioners have been recorded, however, in a cryptic

manner conclusion has been recorded without touching to the

objections raised by petitioners. Section 60 of the Act provides a

remedy of statutory appeal for the action initiated under Sections 55,

56, 57 or 57-A of the Act. The Appellate Authority is under an

obligation to give reasonable opportunity of personal hearing to the

appellant or by pleader. It conveys that the Appellate Authority is

expected to hear the grounds of appeal and after due application of

mind, pass a reasoned order. The very purpose of appeal would be

frustrated, if the appeal is disposed of in a casual manner by

reproducing the contents of the externment order.

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6. The statute has an object behind providing a remedy of

appeal which would be rendered futile if appeals are not decided on

merits i.e. by passing reasoned order. It appears from the record

that though the text and tenor of the entire externment order was in

terms of Section 55 of the Act, however, the order spells that the

externment order has been issued under Section 56[1][A][b] of the

Act. Statutory appeal contains several grounds, however, though

some of them have been referred in the appellate order in the form

of contention of appellants, but, they are not dealt with by the

Appellate Authority. The very approach of casually disposing of the

appeal is against the statutory spirit of providing the appellate

remedy to the externee, as it touches to the right of liberty.

7. In the circumstances, it would in the interest of justice to

decide the appeal a fresh after considering all the grounds raised in

the appeal. Though the Appellate Authority is not required to assign

reasons in detail, however, the order shall reflect due application of

mind. In view of that, the impugned order dated 21.06.2022 passed

in Appeal by respondent no.2 Divisional Commissioner, Nagpur

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Division, Nagpur is hereby quashed and set aside. The matter is

remanded back to the said Authority for deciding it a fresh on its

own merits by taking into consideration the observations made

above. Petitioners shall appear before the Appellate Authority on

18.08.2022. The appeal shall be decided within a period of one

month from the date of first appearance of petitioners.

8. Criminal Writ Petition is partly allowed and disposed of in

aforesaid terms, with no order as to costs.

JUDGE

Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:05.08.2022 14:09