Bombay High Court
Mrunal Bhalchandra Ghodke vs The State Of Maharashtra And Ors on 6 March, 2018
Author: R M Savant
Bench: R. M. Savant, Sarang V. Kotwal
(908) wp-5014.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5014 OF 2017
Mrunal Bhalchandra Ghodke ]
Age : Adult, Occ - Nil ]
R/o. Daniwad, Taksal Lane, ] Petitioner
Nashik, Dist. Nashik ] Appellant.
Versus
1] The State of Maharashtra ]
(Notice to be served on APP ]
High Court, Mumbai) ]
]
2] Deputy Commissioner of Police ]
Zone-1, Nashik. ]
]
3] Divisional Commissioner Nashik, ]
Nashik Division, Nashik. ] Respondents.
Mr. Meghashyam K Kocharekar for the Petitioner.
Mrs. M H Mhatre, for the Respondent/State.
CORAM : R. M. SAVANT &
SARANG V. KOTWAL, JJ.
DATE : 06th MARCH 2018
ORAL JUDGMENT [ PER R M SAVANT, J]
1 Rule, considering the challenge raised in the above Writ Petition, made returnable forthwith and heard.
2 The above Writ Petition filed under Article 226 of the Constitution of India takes exception to the order dated 26/10/2017 passed by the lgc 1 of 7 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:21:35 ::: (908) wp-5014.17 Appellate Authority i.e. the Divisional Commissioner, Nashik Division, Nashik by which order the Appeal filed by the Petitioner came to be partly allowed and resultantly the period of externment mentioned in the externment order dated 25/08/2017 passed by the Externing Authority i.e. the Deputy Commissioner of Police, Zone-I, Nashik came to be curtailed to one year. 3 It is not necessary to burden this order with unnecessary details. Suffice it would be to state that, the Petitioner herein was issued a show cause notice by the Respondent No.2 herein who is the Externing Authority under Section 56(1)(b) of the Maharashtra Police Act, 1955 (for short "the said Act"). By the said show cause notice the Petitioner was asked to show cause as to why the Petitioner should not be externed from Nashik Commissionerate area and Nashik Rural for a period of 2 years. The Petitioner replied to the said show cause notice vide his reply dated 25/08/2017. In the said show cause notice the Externing Authority had adverted to the five FIRs which were registered against the Petitioner at the Bhadrakali Police Station, Nashik. The table containing the said FIRs finds a place in the order dated 26/10/2017 passed by the Appellate Authority, however, as indicated above a reference to the same has been made in the order dated 25/08/2017 passed by the Deputy Commissioner of Police, Zone-I, Nashik City. As can be seen from the table, the FIRs have been registered in the year 2009 to 2016 for the offences which are punishable under Section 324, 323, 143, 147, 504 of the Indian Penal Code lgc 2 of 7 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:21:35 ::: (908) wp-5014.17 and Section 135 of the Maharashtra Police Act. The Externing Authority on the basis of the material on record and having regard to the fact that the offences in respect of which the FIR has been registered are the part of Chapters XVI and XVII of the Indian Penal Code, passed the order dated 25/08/2017 externing the Petitioner for a period of 2 years from the Nashik Commissionerate area as also Nashik Rural area under Section 56(1)(b) of the said Act. Whilst passing the order of externment, the Externing Authority has reached a subjective satisfaction that the Petitioner on account of his activities is required to be externed from the area which finds a mention in the externment order.
4 Aggrieved by the said order dated 25/08/2017 passed by the Externing Authority, the Petitioner filed an Appeal before the Appellate Authority i.e. the Divisional Commissioner, Nashik Division, Nashik being Appeal No.59 of 2017. The Appellate Authority alluded to the offences registered against the Petitioner and also considered the factum of whether the Exerning Authority had rightly reached the subjective satisfaction that it has reached. The Appellate Authority on such consideration did not deem it appropriate to interfere with the order dated 25/08/2017 passed by the Externing Authority and accordingly dismissed the Appeal filed by the Petitioner. As indicated above, it is against the said order dated 26/10/2017 passed by the Appellate Authority, that the above Writ Petition has been filed.
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(908) wp-5014.17
5 On behalf of the Respondent an Affidavit in Reply of the Externing
Authority Shri Laxmikant T Patil has been filed dealing with the claims and contentions raised in the above Writ Petition. In view of the fact that most of the facts which have been stated in the affidavit are the facts which are appearing in the orders passed by the Externing Authority as also the Appellate Authority, it is not necessary to refer to in detail the averments made in the said affidavit.
6 Heard the learned counsel for the parties i.e. learned counsel Shri Kocharekar for the Petitioner and learned APP Mrs. Mhatre for the Respondent/State.
7 The learned counsel for the Petitioner would contend that the order passed by the Externing Authority which has been confirmed by the Appellate Authority suffers from non-application of mind inasmuch as the Externing Authority has failed to take into consideration the fact that the Petitioner has been acquitted in two of the five cases which are referred to in the order passed by the Externing Authority. It was the submission of the learned counsel for the Petitioner that on a previous occasion i.e. in the year 2015 a proposal to extern the Petitioner had been dropped, as also having regard to the cases which were registered against the Petitioner up to the year lgc 4 of 7 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:21:35 ::: (908) wp-5014.17 of 2015 the Exerning Authority did not find material sufficient enough to pass an order externing the Petitioner taking recourse to Section 56(1)(b) of the said Act.
8 Per contra, the learned APP Mrs. Mhatre would seek to support the impugned order. It was the submission of the learned APP that the Petitioner has admittedly been acquitted in two cases out of 5 cases and not in three cases as sought to be contended by the learned counsel for the Petitioner. However, when posed with a question as regards the previous attempt to extern the Petitioner being not taken to its logical conclusion, the learned APP made submissions without any deal of conviction.
9 We have heard the learned counsel for the parties and we have given our anxious consideration to the rival contentions. 10 The question that arises whether the order passed by the Externing Authority can be said to be vitiated on account of non-application of mind. In the said context it is required to be noted that in the year 2015 the proposal for externing the Petitioner had not been taken to its logical conclusion as the Externing Authority had reached the subjective satisfaction that the material on record did not warrant such an order to be passed. In so far as the present show cause notice is concerned, the same is also premised on the same lgc 5 of 7 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:21:35 ::: (908) wp-5014.17 material which was before the Externing Authority except the last case which has been registered in the year 2016. If that be so, then obviously the powers under Section 56(1)(b) of the said Act could not have been invoked for externing the Petitioner on the basis of the material which has already been taken into consideration on the earlier occasion and found to be insufficient. Hence what remains was only one case i.e. FIR No.306 of 2016 registered under Section 160 of the Indian Penal Code and Section 510 of the Maharashtra Police Act. The said case we are informed has arisen on account of the altercation between two groups in a public place. In our view, if the other 4 cases are not to be taken into consideration then what remains is only the FIR No.306 of 2016 which by its very nature does not warrant the extreme step of the Petitioner being externed for the period which has been mentioned in the order of the Appellate Authority. The said offence as can be seen does not fall under Chapters XVI and XVII of the Indian Penal Code which is a sine qua non for invoking the provisions of Section 56(1)(b) of the said Act. 11 Reliance placed on behalf of the Petitioner on the judgment of a Division Bench of this Court reported in 1987(1) Bom.CR 425 in the matter between Shri Subhash Ganu Bhoir v/s. Shri K P Raghuwanshi and another can be said to be well founded. In our view, the said case can be said to be supportive of the case of the Petitioner in his endeavour for seeking setting aside of the order of externment passed against him. In the said case the lgc 6 of 7 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:21:35 ::: (908) wp-5014.17 material which has already taken into consideration on an earlier occasion, wherein the externment order was set aside, was once again sought to be relied upon to support the fresh externment order passed against the Petitioner therein. A Division Bench of this Court found fault with the same and accordingly set aside the externment order.
12 In our view, since the instant order is premised on the same material, there is substance in the submission of the learned counsel for the Petitioner that the order is vitiated on account of non-application of mind. In that view of the matter, the impugned order as well as the order passed by the Externing Authority are unsustainable and are required to be quashed and set aside and are accordingly quashed and set aside. The above Writ Petition is accordingly allowed in terms of prayer clause (b). Rule is accordingly made absolute to the aforesaid extent.
[SARANG V. KOTWAL, J] [R.M.SAVANT, J]
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