Bombay High Court
Suraj @ Dagha Durgaprasad Yadav vs State Of Mah. Thr. Sub- Divisional ... on 22 August, 2022
Bench: V. G. Joshi
13.wp398.2022jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. 398 OF 2022
Suraj @ Dagha Durgaprasad Yadav
Aged about 26 years, Occ. Private
R/o. Shanti Nagar, Wardha.
.. Petitioner
Versus
1. State of Maharashtra
Through Sub-Divisional Magistrate,
Wardha.
.. Respondents
2. Divisional Commissioner,
Nagpur Division, Nagpur.
Mr. M.N. Ali, Advocate for petitioner.
Mr. H.D. Dubey, APP for respondent Nos.1 & 2.
CORAM : VINAY JOSHI, J.
DATED : 22.08.2022.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the rival parties.
(2) The externment order dated 28.12.2021, externing
petitioner for a period of two years from the entire Wardha District is
subject matter of challenge along with the order of dismissal of appeal
by the Divisional Commissioner. The order of externment has been
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passed in terms of Section 56(1)(a)(b) of the Maharashtra Police Act,
1951.
(3) The Authority has based the order of externment on
total eight offences registered against petitioner during the period
from the year 2016 to 2021 along with one prohibitory action. The
impugned action has been challenged on the grounds namely :
(a) The petitioner was acquitted in the offence at serial
No.2 however, that has been considered.
(b) Offences at serial Nos.1 to 5 are registered during the
period from the year 2016 to 2018 however, those stale offences
are considered.
(b) The offences at serial Nos.2, 4 and 5 are under the
Maharashtra Prohibition Act, 1949, Maharashtra Police Act,
1951 and therefore, they are irrelevant in view of requirements
specified under Section 56(1) of the Act, and
(c) The Authority has not recorded subjective satisfaction
about requirement of externment for maximum period of two
years.
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(4) To substantiate these grounds the petitioner has
relied on various decision in cases of Deepak s/o Laxman Dongre Vs.
State of Maharashtra and Ors. AIR 2022 SC 1241, Vijay @ Tyson s/o
Namdeorao Dongre Vs. State of Maharashtra and Ors., (2017) ALL MR
(Cri.) 5254, Munawar Shah Habib Shah Vs. State of Maharashtra and
anr., (2014) ALL MR (Cri.) 1319, Shabbir @ Shahu Mohammad
Shaikh Vs. State of Maharashtra and Ors., (2013) ALL MR (Cri.) 3837
and Bibansingh s/o Dalsingh Bawari and Ors. Vs. State of Maharashtra
and anr., (2014) ALL MR (Cri.) 3655.
(5) As against this the learned APP has justified the
impugned order by contending that the offences at serial Nos.6 to 8
are bodily offences and thus, there is a reasonable nexus with the
immediate externment action from the last registered crime of the year
2021. It is submitted that the police have recorded in-camera
statements, which are verified by the Authority and thus, there is
subjective satisfaction regarding the necessity for externment. Lastly, it
is submitted that despite prohibitory action in the year 2020, the
petitioner has committed one more offence.
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(6) There is no dispute that some of the offences i.e.
offences at serial Nos.2, 4 and 5 does not fit within the required
parameters. This Court in above referred case of Shabbir @ Shahu
Mohammad Shaikh has expressed that when some irrelevant material
is considered, it is not possible for the Court to decide as to what
extent the externing Authority was influenced by irrelevant
consideration and therefore, the order would vitiate. In the above
referred cases of Vijay @ Tyson s/o Namdeorao Dongre and Munawar
Shah Habib Shah, this Court took a view that the offences registered
under other Act, namely, Maharashtra Prohibition Act, 1949, could not
have been considered and therefore, the order is unsustainable.
(7) As regards to subjective satisfaction about
requirement of externment for maximum period of two years, in above
referred case of Deepak s/o Laxman Dongre, the Hon'ble Supreme
Court has emphasized that the Authority must recorded subjective
satisfaction about the necessity of passing an order of externment for
maximum period of two years. The impugned order does not indicate
any reason or any reference as to on which basis the Authority came to
the conclusion for requirement of imposing maximum period of
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externment. Thus, on various parameters the impugned order is
unsustainable in the eyes of law and therefore, the impugned order of
externment is hereby quashed and set aside.
(8) Needless to say that the respondent is at liberty to
initiate fresh action of externment, if circumstances warrant so, subject
to complying the statutory provisions.
(9) The Writ Petition stands disposed of in above terms.
[ VINAY JOSHI, J. ]
Signed By:PRITY S GABHANE
Reason:
Location:
Signing Date:25.08.2022 15:47
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