Criminal Writ Petition No. 3229 of 2012

18th March, 2013

Petitioner Counsel: Mr. U.N. TRIPATHI
Respondent Counsel: Mrs. A.S. PAI

JUDGMENT

A. R. JOSHI, J. :- Heard. Rule. By consent of the parties taken up for final hearing and disposed of at the stage of admission.

2. The order of externment dated 7.2.2012 passed by the competent authority i.e. Deputy Commissioner of Police, Zone-II, Nashik City is challenged in the present Petition by the petitioner/externee. Said impugned order was passed under Section 56(1)(a)(b) of the Bombay Police Act, 1951. Appeal was preferred against the said order before the Chief Secretary (Special), Home Department. However, the same was dismissed vide order dated 17.8.2012. This order is also challenged in the present Writ Petition.

3. Initially show cause notice under Section 59 of the Bombay Police Act, 1951 was issued against the petitioner. It was issued by the ACP, Division-II, Nashik Town proposing externment of the petitioner for two years from Nashik city, Nashik rural and Nashik District and for showing the cause as to why he shall not be externed. On such show-cause notice, the petitioner was heard. However, not satisfied with the explanation, the impugned externment order dated 7.2.2012 was passed.

4. In the externment order reliance was placed on one old and stale case of the year 2002, namely, Nashik Road Police Station C.R. No.22 of 2012 for offences punishable under Sections 326, 143, 147, 148 read with Section 135 of Bombay Police Act. Apart from the said case of the year 2002, reliance was placed on one more case registered with Nashik Road Police Station C.R. No.5 of 2011 for offences punishable under Sections 302, 120B and offences of rioting and also offences under the Arms Act and under Section 135 of the Bombay Police Act. Reliance was also placed on two in camera statements recorded on 7.9.2011 and which were verified by the Assistant Commissioner of Police, Division-II, Nashik City on 8.10.2011. Consequently relying on the available material, externment order was passed on 7.2.2012 against the present petitioner.

5. We have gone through the show-cause notice and the externment order and also the order in the appeal preferred before the Home Department. Generally, the subjective satisfaction of the competent authority while passing the order of externment need not be interfered with if otherwise there is no lacuna in the impugned order inasmuch as when the material available before the competent authority can be appreciated and taken into consideration for passing the externment order, but in given circumstances when it is seen that the subjective satisfaction is based on the material which should not have been considered by the competent authority, then the interference is warranted.

6. Bearing in mind the above proposition, the arguments advanced on behalf of the petitioner are required to be dealt with as under :

It is argued that the first case taken shelter of by the Competent Authority is of the year 2002 and as such it is a stale case. Secondly, there is a delay in recording the in-camera statements of two alleged witnesses. Apparently the in-camera statements were recorded on 7.9.2011 regarding the incidents of 16.12.2010 and 22.11.2010. Moreover allegedly said in-camera statements were belatedly verified after one month on 8.10.2011 and thereafter again belatedly after four months the externment order was passed on 7.2.2012. Apparently this delay, as apparent on the record, vitiates the subjective satisfaction arrived at by the Competent Authority in passing the externment order, as rightly argued by the learned Counsel for the petitioner. In other words, it is a case in which the live link is snapped thus rendering the externment order liable to be interfered and set aside.

7. In view of the above, in our considered opinion, the present Writ Petition must succeed thus requiring the impugned externment order to be quashed and set aside thus consequently setting aside the order of the appellate authority dated 17.8.2012. Both these orders are set-aside and present Writ Petition is allowed. Rule is made absolute.

Petition allowed.