Bharat Dwarkadas Thakkar vs State of Maharashtra & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 291

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari, Acg. C.J. V.P. Tipnis, J.
Bharat Dwarkadas Thakkar.... Petitioner.
Versus
State of Maharashtra another.... Respondents.
Criminal Writ Petition No. 782 of 1986, decided on 15-9-1987.
Advocates appeared :
A.R. Shaikh, for petitioner.
C.M. Kothari, for respondents.

Headnote:Section 59-Validity of order of externment-Order mentioning several acts of that nature which was not mentioned in show cause notice-Further order based on material not shown in show cause notice-Held, order of externment illegal having no application of mind.
In the offences referred to in the show cause notice, he was conticted, which recital is obviously wrong and shows total non-application of mind. The ultimate order of externment, is based on offences punishable under Chapters XVI and XVII generally and it is then stated that he has committed several acts of that nature which is not made the subject-matter of the show cause notice. Thus, the show cause notice and the Externment order run counter to each other. This clearly shows non-application of mind. It further shows that the order of Externment is based on the material which was not the subject-matter of the show cause notice. Hence, the petitioner has no notice of the allegations on the basis of which, ultimately, the externment order came to be passed. This must vitiate the externment order.

JUDGMENT - C.S. DHARMADHIKARI, Acg., C.J.:---The Order of Externment dates 26th September, 1985, passed by the Dy. Commissioner of Police Zone, II, Thane must get vitiated for the reason that the alleged activities of the petitioner on which the said order is based were not referred to even generally in the show cause notice issued under section 59 of the Bombay Police Act. In the show cause notice three offence were referred to. Now it is admitted in the affidavit filed by the Dy. Commissioner of Police that in one offence. i.e. under sections 147, 148, 149 and 307, I.P.C., the petitioner was acquitted. Similarly, it is admitted that in respect of C.R.No. I-11/85, the petitioner was never prosecuted as there was not sufficient evidence against him. Thus , only one offence survives which is also pending trial in the Court of few. In spite of this, in the show cause notice, it is recited that in the offences referred to in the show cause notice, he was convicted, which recital is obviously wrong and shows total non-application of mind. The ultimate Order of Externment, is based on offences punishable under Chapters XVI and XVII generally and it is then stated that he has committed several acts of that nature which is not made the subject-matter of the show cause notice. Thus, the show cause notice and the Externment Order run counter to each other. This clearly shows non-application of mind. It further shows that the Order of Externment is based on the material which was not the subject-matter of the show cause notice. Hence, the petitioner has no notice of the allegations on the basis of which, ultimately, the Externment Order came to be passed. This must vitiate the Externment.

2. Hence, the impugned Order of Externment dated 26th September, 1985, passed by the Deputy Commissioner of Police Zone II, Thane is set aside and as the necessary consequence of which the order passed in appeal must also stand sat aside. The rule is made absolute.

Rule made absolute.

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