Nagpur – Order of externment passed by Sub-divisional magistrate, Murtizapur externing from Nagpur for a period of 1 from AKola District years was quashed and set aside by Justice Vinay Joshi of Bombay High Court.
Abdul Samad Sheikh Habib had receivedshow cause notice dated 8-07-2021 issued by SDPO, Murtizapur and by aforesaid notice petitioner was called upon in accordance with the provisions of the show cause as to why order of externment should not be passed under section 56(1)(a) of Bombay Police Act and why he should not be externed from Akola district for a period of 2 years.
The notice was replied and Sub -divisional magistrate, Murtizapur by his order dated 27-09-2021, considered the record and passed an order whereby directing that the Wasim to be externed from AKola District for a period of 1 year under the provisions of Section 56 (1) (a) (b) of the said Act.
Impugned order was challenged before Divisional Commissioner, Akola but same was also dismissed.
Therefore Abdul Samad Sheikh Habib through his counsel Adv Mir Nagman Ali had challenged externment order before Bombay High Court.
The challenge was raised on the ground that out of four offences shown in show cause notice, two offences which are at serial nos.1 and 4 does not fall under Chapter XII, XVI, XVII of the Indian Penal Code and therefore, it could not have been considered. It is submitted that only one offence which is at Serial no.3 is of the year 2021 and thus, rest of the offences being stale, were wrongly considered by the externing authority. The order is assailed on the ground that the show cause notice does not bear a reference regarding in-camera statement and thus, the petitioner was deprived from giving explanation on said vital material, which is the requirement under Section 56(1)(b) of the Maharashtra Police Act. Besides that, it is pointed out that externing orders bear six non-cognizable offences, which are not the part of the show cause notice.
The State had resisted the petition by filing affidavit-reply. It was stated thatearlier in the year 2017, the petitioner was externed and during the said period he has committed an offence.
While allowing the petition the court observed,
In fact, there is no such a reference either in show cause notice nor in the impugned order, therefore, it cannot be considered. It is a matter of record, that both show cause notices does not bear the reference of in-camera statement or non-cognizable reports, which has become a part of the externment action. It reveals that besides one offence of the year 2021, rest of the offences are stale. There is no live link between old offences and the action of externment. The authority has considered extraneous material while passing the order. The authority has not recorded subjective satisfaction and thus, the impugned order would not sustain in the eyes of law.
Adv Mir Nagman Ali appeared for Abdul Samad Sheikh Habib.
