CHHAGANBHAI BHURABHAI VAGHELA-KOLI Vs. STATE

JUDGEMENT

(1.) Chhaganbhai Bhurabhai Vaghela-Koli, petitioner has filed this petition under Article 226 and 227 of the Constitution of India with a prayer that this Court may be pleased to issue writ of mandamus for quashing and setting aside the impugned order dated 25/5/2005 passed by the Sub Divisional Magistrate, Amreli, respondent no.2 under Section 56(a)(b) of the Bombay Police Act, 1951, externing the petitioner for a period of two years which has been confirmed by the Deputy Secretary, Home Department, New Sachivalaya, Gandhinagar, respondent no.1 vide its order dated 23/11/2005 as being illegal, invalid, null and void, suffers from total non-application of mind, without authority of law, against the principles of natural justice and violative of Articles 14, 19 and 21 of the Constitution of India. Petition has been filed on 8/12/2005.

(2.) This Court has issued Rule on 13/12/2005. Rule has been made returnable. Therefore, the same has come up for final hearing to this Court today. Mr.H.R.Prajaptai, learned advocate for the petitioner has stated that though there are several grounds, he desires to raise only one ground in this behalf. He has stated that show cause notice, issued by the authority which has been received by the petitioner somewhere in December 2004. The show cause notice mentioned several cases. Out of that one case mentioned is criminal case no.40 of 1999. According to the authority, it is pending on 21/9/1999 under the provisions of IPC. In reply to the said show cause notice, dated 21/2/2004, petitioner has specifically pointed out that the aforesaid case had been committed to the Sessions Court and in that Sessions Case No. 29 of 2000, the learned 3rd Fast Track Court Judge, Amreli by his judgment and order dated 21/2/2004 pleased to acquit the petitioner under the provisions of Section 143, 147, 307 of IPC read with Section 135 of the Bombay Police Act. It is the case of the petitioner that though the said fact has been categorically set out in the reply to the show cause notice, the authority has passed the order without considering the said reply in this behalf and in fact stated that the said case is pending and passed impugned order on 25/5/2005 after relying upon the said case.

(3.) The learned advocate for the petitioner has stated that in view of the facts and circumstances of the case, when in show cause notice, mentioned about the criminal case No.40 of 1999 pending against the petitioner. In reply to the said show cause notice, the petitioner has specifically pointed out that the aforesaid case had been committed to the Sessions Court and in the said case 29 of 2000, the learned Judge by his judgment and order dated 21/2/2004 pleased to acquit the petitioner under the provisions of 143, 147, 307 of IPC read with Section 135 of the Bombay Police Act. Though the said facts are specifically set out in the reply, in the order dated 25/5/2005, which has been passed by the authority, the authority has not considered the said fact in this behalf and even in the affidavit in reply which has been filed by the authority, the said facts are not considered. In amendment to the petition it has been specifically stated in ground (F) that the aforesaid case has been decided. However, in the impugned order of externing authority, it has been shown that the said case is pending. The said ground has been taken in para 10(f). When we see the affidavit in reply, in para 11 of the same, the deponent of the affidavit has stated that "I say that proper reading of the judgment in the said case makes it very clear that most of the witnesses in that case turned hostile to the case of the prosecution hence petitioner has got benefit of doubt. Therefore the contentions raised by the petitioner in not tenable at law."