Abdul Samad Sheikh Habib vs State Of Mha. Thr. Sub Divisional ...
2022 Latest Caselaw 7783 Bom

                                   1



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


            CRIMINAL WRIT PETITION NO. 284 OF 2022

         Abdul Samad Sheikh Habib, Aged about
         41 years, Occ - Private, R/o Green
         Colony, Barshi Takli, Akola.

                                                    ... PETITIONER

                              VERSUS
   1.    State of Maharashtra,
         Through Sub-Divisional
         Magistrate, Murtizapur.

   2.    Divisional Commissioner, Akola
         Division, Akola.

                                                  ... RESPONDENTS
_____________________________________________________________
       Shri M.N. Ali, Advocate for the petitioner.
       Mrs.M.H. Deshmukh, A.P.P. for the respondents.
______________________________________________________________


                       CORAM           :   VINAY JOSHI, J.

                       DATED.          :   10.08.2022.


ORAL JUDGMENT :

RULE. Rule is made returnable forthwith. Heard finally

by consent of both the parties.

2. The petitioner has been externed by the respondent no.1

Sub Divisional Magistrate, Murtizapur for the period of one year from

the District Akola. The petitioner has challenged the said order before

the Divisional Commissioner, Akola, who has maintained the

externment, however the period of externment has been brought down

for eight months which is under challenge.

3. The petitioner has challenged both orders on the ground

that, out of four offences shown in show cause notice, two offences

which are at serial nos.1 and 4 does not fall under Chapter XII, XVI,

XVII of the Indian Penal Code and therefore, it could not have been

considered. It is submitted that only one offence which is at Serial no.3

is of the year 2021 and thus, rest of the offences being stale, were

wrongly considered by the externing authority. The order is assailed on

the ground that the show cause notice does not bear a reference

regarding in-camera statement and thus, the petitioner was deprived

from giving explanation on said vital material, which is the requirement

under Section 56(1)(b) of the Maharashtra Police Act. Besides that, it is

pointed out that externing orders bear six non-cognizable offences,

which are not the part of the show cause notice.

4. The learned A.P.P. has supported the impugned orders. It is

contended that earlier in the year 2017, the petitioner was externed

and during the said period he has committed an offence. In fact, there

is no such a reference either in show cause notice nor in the impugned

order, therefore, it cannot be considered. It is a matter of record, that

both show cause notices does not bear the reference of in-camera

statement or non-cognizable reports, which has become a part of the

externment action. It reveals that besides one offence of the year 2021,

rest of the offences are stale. There is no live link between old offences

and the action of externment. The authority has considered extraneous

material while passing the order. The authority has not recorded

subjective satisfaction and thus, the impugned order would not sustain

in the eyes of law.

5. In view of the above, the petition is allowed. The impugned

order dated 27.09.2021 passed by the Sub Divisional Magistrate,

Murtizapur and order dated 28.02.2022 passed by the Appellate

Authority i.e. respondent no. 2, are hereby quashed and set aside.

6. The petition stands disposed of accordingly.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

11.08.2022 11:36