Jitendra @ Chandan Shivkumar ... vs State Of Gujarat
2023 Latest Caselaw 457 Guj

      R/SCR.A/1560/2019                              ORDER DATED: 13/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 1560 of 2019

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                 JITENDRA @ CHANDAN SHIVKUMAR SHARMA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 13/01/2023

                                ORAL ORDER

1. Heard learned Advocate Mr. Kishan Prajapati on behalf of the

applicant and learned APP Ms. Asmita Patel on behalf of the respondent-

State.

2. By way of this application, the applicant challenges an order dated

11.02.2018 passed by respondent no. 2 herein whereby the present

applicant had been externed for a period of 2 years from the entire areas

within the jurisdiction of the Surat Commissionerate and Surat Rural

areas.

R/SCR.A/1560/2019 ORDER DATED: 13/01/2023

3. It appears that the petitioner without availing of the appeal remedy,

had directly approached this Court and whereas, it also appears that a

learned Co-ordinate Bench of this Court vide order dated 11.02.2019 had

issued notice for final disposal and whereas, interim relief whereby the

impugned order was stayed, had also been granted in favour of the

present applicant.

4. Learned Advocate Mr. Prajapati restricts his argument on a very

short issue in as much as according learned Advocate, the authority, had

issued show cause notice to the applicant dated 04.01.2018 where the

authorities have referred to an FIR filed against the present applicant

being CR. I No. 126 of 2016 registered with the Pandesara Police Station

and whereas according to the learned Advocate, this aspect of the FIR

being registered against the present applicant has also weighed with the

authority while passing of the impugned order. Learned Advocate would

submit that as a matter of fact, on the date when the notice had been

issued, the present applicant stood acquitted from the authority as leveled

in the FIR. In as much as according to learned Advocate the learned

Judicial Magistrate First Class, Surat vide judgment and order dated

24.04.2017 in Criminal Case No. 53616 of 2016 arising from the FIR No.

126 of 2016 referred to herein above had been pleased to acquit the

R/SCR.A/1560/2019 ORDER DATED: 13/01/2023

present applicant and other co-accused.

4.1. Learned Advocate would also draw the attention of this

Court to order passed by the learned Co-ordinate Bench dated 22.03.2018

whereby the learned Co-ordinate Bench, had quashed externment order of

a co-accused, that is a person who had been accused along with the

present applicant in FIR No. 126 of 2016 referred to herein above and

whereas, according to learned Advocate, the aspect which weighed with

the learned Co-ordinate Bench was the fact that the authority concerned,

had relied upon FIR in which the applicant therein, had already been

acquitted. The aspect as noted herein above, more particularly, the fact

that the FIR No. 126 of 2016, being referred to as one of the cases in

which the present applicant was involved, in notice of externment issued

to the petitioner dated 04.01.2018 as well as fact of the present applicant

having been acquitted in the trial arising from the FIR could not be

disputed by the learned APP Mr. Asmita Patel.

5. Learned APP Ms. Patel further could not dispute the fact that the

learned Co-ordinate Bench vide order dated 29.01.2018 in Special

Criminal Application No. 640 of 2018 was dealing with the case of a

person which was a co-accused with the present applicant in FIR No. 126

of 2016.

R/SCR.A/1560/2019 ORDER DATED: 13/01/2023

6. Considering the same, more particularly, since it appears that FIR

in which the present applicant had already been acquitted, had weighed

with the authorities while issuing externment order, and whereas, the

same having been considered in case of a co-accused and having been set

aside by a learned Co-ordinate Bench, in the considered opinion of this

Court, the same benefit deserves to be accorded to the applicant herein.

7. Having regard to the same, externment order dated 11.02.2018

passed by the respondent no. 2 is quashed and set aside.

(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia