Bombay High Court
Hitesh @ Bittu Naresh Sawadiya vs Divisional Commissioner Nagpur ... on 11 August, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 882/2021
Hitesh @ Bittu Naresh Sawadiya,
aged about 25 years, Occ. Private,
R/o. Tekdi Line, Gawlipura, Nagpur.
... PETITIONER
VERSUS
1. Divisional Commissioner Nagpur
Division, Dist. Nagpur.
2. Deputy Commissioner of Police
Zone-2, Nagpur City.
3. State of Maharashtra through
PSI Sitabuldi, Police Station,
Sitabuldi, Nagpur, Dist. Nagpur
... RESPONDENTS
_____________________________________________________________
Mr. Virendra Surendra Mishra, Advocate for petitioner.
Mrs. M. H. Deshmukh, APP for respondent/State.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATE OF JUDGMENT : 11.08.2022.
ORAL JUDGMENT :
RULE. Rule is made returnable forthwith.
2. Heard finally by consent of respective parties.
3. The petitioner has been externed by the respondent No. 2
Deputy Commissioner of Police Zone-2, Nagpur City for a period of one
year from the entire Nagpur district. The order has been passed in
terms of Sections 56(1)(a)(b) of the Maharashtra Police Act.
4. The learned counsel appearing for the petitioner would
contend that the impugned order is based on the stale offences and
thus, the Externing Authority erred in recording subjective satisfaction
about the anticipated threat to the Society. It is contended that the
externment is based on six offences out of which offence at Serial No. 1
to 3 are only bodily offences covered under Chapter XVI of the Indian
Penal Code which are of the year 2017 to 2018. He would submit that
the rest of the offences at Serial Nos. 4 to 6 pertain to the affray offence
under the Motor Vehicles Act and non-obedience of public order which
could not have been considered. Thus, the prime contention is that the
offence at Serial No. 1 to 3 which are preceding to the year 2019 whilst
the impugned action is taken after two years. In support of said
contention, the petitioner has relied on the decision of the Supreme
Court in case of Deepak Vs. State of Maharashtra and others, 2022 SCC
Online SC 99, wherein the Supreme Court observed that on the basis
of stale offences, the impugned action of externment would not sustain.
5. Per contra, the learned Additional Public Prosecutor resisted
the petition by submitting that there is sufficient material for passing
externment order. It is submitted that the offence at Serial No. 5
though under the Motor Vehicles Act, it still falls under Chapter XVI of
the Indian Penal Code as the provision of Section 337 of the Indian
Penal Code has been invoked. Moreover, it is submitted that the
Authority has recorded subjective satisfaction and thus, the order is
unimpeachable.
6. The petitioner was served with statutory show cause notice
and on receipt of reply, the impugned order has been passed on
02.11.2021. The externment has been based on total six offences as
provided in the chart incorporated in the order itself. Undisputedly, the
offences at Serial Nos. 1 to 3 which are having crime Nos. 178/2017,
414/2017 and 451/2018 pertain to bodily offences falling under
Chapter XVI of the Indian Penal Code. Though it is submitted that
offence at Serial No. 5 bearing crime No. 476/2020 relates to Section
337 of the Indian Penal Code, however it is apparent that out of rash
and negligent driving, the said offence was committed, wherein hurt
has been caused. Thus, though technically the said offence falls under
Chapter XVI of the Indian Penal Code, however, the import of crime
was relating to the rash and negligent driving. As regards to the
offences at Serial Nos. 4 and 6 are concerned, they are of petty nature.
Thus, the offences which could be considered are at Serial Nos. 1 to 3
and the last offence is registered in the month of November 2018.
Apparently, the impugned action has been taken after two years from
the said crime. Admittedly, no bodily offence falling under Chapter XVI
and XVII of the Indian Penal Code has been registered within two years
against the petitioner, besides offence at Serial No. 5 which is dealt
above. Thus, the impugned action is based on the stale offences
meaning thereby, there is no live-link for recording subjective
satisfaction about likelihood of danger to the public order.
7. In view of above, impugned order would not stand in the
eyes of law. The petition is allowed. Impugned orders dated
05.12.2021, 02.11.2021 and show cause notice dated 25.10.2021 are
hereby quashed and set aside.
8. Petition stands disposed of in above terms.
(VINAY JOSHI, J.)
Gohane
Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2022.08.12
15:53:00
+0530
