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SCR.A/67/2010 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 67 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
HASAM
VIRA KOREJA - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SANDIP M PATEL for
Applicant(s) : 1,
MR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 06/04/2010
ORAL
JUDGMENT
1. By
way of filing the present petition under articles 14,16 and 226 of
the Constitution of India, the petitioner has challenged the order of
externment dated 7.1.2010 passed by respondent no.3-Additional
Secretary, Home Department.
2. Mr.
S.M. Patel, learned advocate appearing for the petitioner submitted
that a show cause notice came to be issued on 19.12.2007 and order of
externment was passed on 9.11.09 by Sub Divisional Magistrate, Anjar.
It is submitted that out of three cases, in two cases being Ist CR
No. 17/2000 and Ist CR No. 10 of 2007, the petitioner was acquitted
vide orders dated 18.10.2006 and 18.3.2009, while one case being Ist
CR No. 31 of 2005 is pending for final disposal. The competent
authority has not taken into consideration the acquittal of the
petitioner in two cases and, therefore, subjective satisfaction
arrived at by the competent authority is vitiated and only on that
ground alone, the petition requires to be allowed and the order
[Annexure:A] passed by the respondent no.3-Additional Secretary, Home
Department be quashed and set aside.
3. Mr.
D.C. Sejpal, learned APP representing the respondents, while opposing
the petition submitted that the competent authority has taken into
account the record of case and after going through the entire gamut
of the case, decided the matter and externed the petitioner vide
order dated 7.1.2010. It is submitted that there is no infirmity in
the order passed by the Additional Secretary, Home Department and
therefore, no interference is called for in the petition and the
petition is without any merits and deserves to be rejected.
4. I
have heard the learned advocates of both the sides at length and in
great detail. Considering the averments made in the petition as well
as the order of externment passed by the respondent no.3-Additional
Secretary, Home Department which is referred to and relied upon by
both the sides and produced at Annexure:A to the petition, it becomes
clear that respondent no.3-Additional Secretary, Home Department has
externed the petitioner for a period of six months for his
involvement in Ist CR No. 17 of 2000, Ist CR No. 31 of 2005 and Ist
CR No. 10 of 2007 and exercised powers under Section 56[a] of the
Bombay Police Act, 1951.
5. However,
the competent authority has not considered the acquittal of the
petitioner in Ist CR No. 17 of 2000 by order dated 18.10.06 as well
as Ist CR No. 10 of 2007 by order dated 18.3.09, therefore,
subjective satisfaction which was arrived at by the competent
authority, in my view, is vitiated while passing the order of
externment against the petitioner.
6. In
view of the above, the petition, in my view, is required to be
allowed only on that ground alone and the order of externment
deserves to be quashed and set aside.
7. For
the foregoing reasons, the petition is allowed. The order of
externment dated 7.1.2010 passed by respondent no.3-Additional
Secretary [Law and Order], Home Department is hereby quashed and set
aside. Rule is made absolute.
[H.B.
ANTANI, J.]
pirzada/-
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