2017 ALL MR (Cri) 1549
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B. R. GAVAI AND A. S. CHANDURKAR, JJ.

Nitin @ Babloo s/o. Bhagwant Gade Vs. Deputy Commissioner of Police, Amravati & Ors.

Criminal Writ Petition No.959 of 2015

28th March, 2016.

Petitioner Counsel: Shri P.V. NAVALANI
Respondent Counsel: Shri S.M. GHODESWAR

Maharashtra Police Act (1951), S.56(1) - Externment order - Subjective satisfaction - Show cause notice wrongly referred to a criminal case as pending against petitioner though petitioner was already acquitted in said case - Non consideration of acquittal of petitioner vitiates subjective satisfaction - Further, decision of externment was based on two in-camera statements - However, show cause notice did not refer to any such statement - Material which was not disclosed in show cause notice, cannot be relied upon to order externment - Impugned order vitiated and liable to be set aside. 2014 ALL MR (Cri) 4845 Rel. on. (Paras 5, 6, 7)

Cases Cited:
Pradeep Somnath Gupta Vs. State of Maharashtra, 2014 ALL MR (Cri) 4845 [Para 3,6]


JUDGMENT

A. S. Chandurkar, J. :- Rule. Heard finally with the consent of the Counsel for the parties.

2. The petitioner has challenged the order dated 16-11-2015 passed by the respondent No.1 under provisions of Section 56 (1) of the Maharashtra Police Act, 1951 externing the petitioner from the limits of Amravati City as well as Amravati District for a period of two years.

3. Shri P. V. Navlani, learned Counsel for the petitioner submitted that the impugned order of externment is vitiated inter alia on the following grounds:

Firstly, in the show cause notice, it was stated that a Court case that was filed against the petitioner on the basis of Crime No.3007/2009 was pending. It is submitted that the aforesaid matter was disposed of on 14-7-2011 by acquitting the petitioner. Secondly, it is submitted that in the show cause notice there is no reference made to the recording of in camera statements of two witnesses. However, in the impugned order, the respondent No.1 has relied upon said two in camera statements while directing externment of the petitioner. Such course was not permissible. The learned Counsel placed reliance on the judgment of the Division Bench in the case of Pradeep Somnath Gupta VS. State of Maharashtra 2014 ALL MR (Cri) 4845 in that regard. It is, therefore, submitted that the impugned order suffers from aforesaid infirmities as well as from lack of subjective satisfaction thereby vitiating the same.

4. Shri S. M. Ghodeswar, learned Asstt. Public Prosecutor by relying upon the affidavit-in-reply filed on behalf of the respondent No.1 supported the impugned order. He submitted that Crime No.3001/2009 was wrongly mentioned in the show cause notice. In fact, Crime No.3007/2009 was stated to be pending against the petitioner vide Summary Criminal Case No.1190/2009. It was then submitted that in the show cause notice there is a reference to the unwillingness of witnesses to depose against the petitioner. It is therefore submitted that the impugned order does not call for any interference.

5. Having heard the respective Counsel and having given due consideration to their respective submissions, we are of the view that the challenge to the impugned order deserves to be upheld.

It is to be noted that pursuant to the order dated 14-7-2011, said Summary Criminal Case No.1190/2009 stands disposed of by acquitting the petitioner. The fact that the petitioner has been acquitted on 14-7-2011 has been lost sight of while issuing the show cause notice on 13-10-2015 and said aspect has in fact been taken into consideration while calling upon the petitioner to show cause. The absence of valid consideration of acquittal of the petitioner is a factor that would vitiate the subjective satisfaction of the respondent no.1.

6. In so far as the in camera statements of two witnesses are concerned, there is no reference made thereto in the show cause notice. It has been vaguely stated that witnesses were not willing to come forward to depose against the petitioner. However, in the impugned order, there is a specific reference made to two in camera statements that have been relied upon by the respondent No.1 while passing the order of externment. As the petitioner was not put on notice with regard to the existence of aforesaid in camera statements and the same have been relied upon while ordering his externment, the same would result in vitiating the exercise conducted by the respondent No.1. The material which was not disclosed in the show cause notice could not have been relied upon by the respondent no.1 while passing the order of externment. The learned Counsel for the petitioner has rightly placed reliance upon the judgment of the Division Bench in Pradeep Somnath Gupta (supra).

7. In view of aforesaid, it is clear that the impugned order is vitiated on both the aforesaid counts. The same is, therefore, liable to be set aside.

8. Accordingly, the writ petition is allowed. The impugned order dated 16-11-2015 is quashed and set aside. Rule is made absolute in aforesaid terms with no order as to costs.

Petition allowed.