ABDUL RAZAL Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) Rule. Heard finally, by consent. Heard Mr. R.P. Joshi, learned counsel for the petitioner and Mr. J.B. Jaiswal, learned Additional Public Prosecutor for respondents. Learned counsel Shri Joshi, appearing on behalf of the petitioner has submitted that the Inquiry Report of the Inquiry officer is based on the pending cases against the applicant. It is further submitted that an earlier proposal of police based on the same set of facts and same pending criminal case had been rejected by the then Sub Divisional Magistrate by his order dated 30th August 2011. The Sub Divisional Magistrate had categorically stated in his order that no case was made out for passing an order under Section 56 of the Bombay Police Act.

(2.) The impugned order is also based on the same set of facts. Impugned order is passed within one year of the earlier order. The only fresh development during the intervening period is one more case registered against the petitioner vide Crime No. 32 of 2011 for the offences punishable under Sections 143, 144, 147, 307 read with Section 149 of the Indian Penal Code. Admittedly, the applicant was released on bail under Section 438 of the Criminal Procedure Code during the pendency of investigation and further it is also admitted position that despite of lapse of more than one year from the date of registration of offence, the police have not been able to file charge sheet against the petitioner.

(3.) As such there was nothing new in the proposal submitted to the Sub Divisional Magistrate by the police as compared to the earlier proposal submitted by the police. In the circumstances, Sub Divisional Magistrate was under obligation to record as to what had happened in the intervening period which compelled him to pass an order of externment. In the absence of consideration of earlier order, the impugned order could not have been issued. In the result, the Writ Petition succeeds. The impugned order dated 21st September, 2012 passed by the respondent No. 2/Sub Divisional Magistrate, is set aside. Rule made absolute accordingly.