1 3219.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3219 OF 2011 Nilesh @ Balu Sadashiv Kokane ...Petitioner Versus Dy.Commissioner of Police & Ors. ...Respondents ...... Mr.U.N.Tripathi a/w Mr.Neelesh V.Kalantri for Petitioner. Ms.M.H.Mhatre, A.P.P. for Respondents. ...... CORAM:- A.M.KHANWILKAR AND R.G.KETKAR, JJ. DATED:- DECEMBER 9, 2011. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Mhatre, A.P.P. waives notice for respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. At the outset, Mr.Tripathi on instructions of the petitioner submitted that if the petitioner’s prayer for setting aside the order passed by the 2 3219.11 Appellate Authority were to be accepted, the petitioner may not press for prayer clause (g) of the Petition. Accordingly, matter proceeded for arguments only in context of prayer clauses (b) and (c) of the Petition. 5. In prayer clause (b), it is prayed that the externment order dated 11th May, 2011 issued under Section 57(1)(a)(1) of Bombay Police Act, 1951 passed by the respondent No.1 be quashed and set-aside. In prayer clause (c), it is prayed that the Appellate Order dated 29th September, 2011 issued by the Principal Secretary (Home), Mantralaya, Mumbai be quashed and set-aside. 6. Learned A.P.P. raised preliminary objection that the challenge to the aforesaid orders can proceed before the learned Single Judge as per the Appellate Side Rules. Counsel for the petitioner submits that the present Petition has been moved before the Division Bench of this Court, as additional relief in terms of prayer clause (g) has been prayed. For that reason, the matter, in our opinion, has been rightly placed before the Division Bench for hearing. In any case, if as per the Appellate Side Rules, the matter can proceed before the Single Judge of this Court, does not mean that the Division Bench cannot take up the reliefs which the Single Judge is 3 3219.11 competent to decide and more so, additional prayer clause which could be only decided by the Division Bench of this Court. Hence, we proceeded with the hearing of the Petition. 7. During the hearing of the Petition, in deference to the observation made by the Court, Mr.Tripathi submitted that he would not press prayer clause (g), as the ground pressed into service for challenging the order of externment and the order passed by the Appellate Authority is indefensible. The sole ground on which the petitioner, according to Mr.Tripathi appearing for the petitioner, would succeed, is that, the order of externment refers to criminal cases registered with Ambad Police Station bearing No. 97/2011 for offences under Sections 363, 365, 342 and another criminal case registered with Sakharwada Police Station bearing No.119/2011 for offence under Section 332, 324 and 34, which, however, does not form part of the show-cause notice. The only justification for omission to refer to the said criminal cases in the show-cause notice given across the bar by the learned A.P.P. is that the show-cause notice was issued on 23rd November, 2010 and the two offences were allegedly committed, in which petitioner is involved, thereafter in the year 2011. The fact remains that the Appropriate Authority as well as the Appellate Authority has placed reliance on the said 4 3219.11 two offences in addition to the criminal cases referred to in the show-cause notice. It is well established position that if the Appropriate Authority places reliance on any circumstance or document, must furnish copy thereof and refer to the same in the show-cause notice, failing which, the conclusion and opinion reached by the Appropriate Authority would be vitiated. In support of this argument, the petitioner places reliance on the decisions of Division Bench of our High Court in the case of Smt.Khairunisa Mohamed Suleman Sayyed vs. The Sub-Divisional Magistrate, Miraj & Anr. reported in 1987(1) Bom.C.R. 427 and in the case of Jeevan Pandurang Patil vs. The State of Maharashtra reported in 1987 (3) Bom.C.R. 325. However, in the present case, neither the Appropriate Authority nor the Appellate Authority thought it appropriate to even advert to those decisions in the impugned decision. The Appellate Authority could not have overlooked the argument, unless it were to record a finding of fact that before passing of the final order of externment against the petitioner, the petitioner was put to notice about the said criminal cases which the Appropriate Authority intended to rely in the final order. That is not the case before us. 8. In the circumstances, the impugned decisions of the Appropriate 5 3219.11 Authority as well as the Appellate Authority deserve to be quashed and set- aside, while making it clear that it would be open to the Appropriate Authority to proceed against the petitioner afresh by furnishing all materials as the Appropriate Authority may be inclined to rely on for justifying the proposed action of externment. All questions in that behalf will have to be considered on its own merits at the appropriate stage, as and when occasion arises. 9. Rule is made absolute in terms of prayer clauses (b) and (c), which read thus : “(b) The order of externment dated 11.05.2011 issued under Section 57(1)(a)(1) of Bombay Police Act, 1951, passed by the Respondent No.1 be quashed and set aside; (c) That the Appellate Order dated 29.09.2011 issued by the Principal Secretary (Home), Mantralaya, Mumbai be quashed and set aside”. (R.G.KETKAR, J.) (A.M.KHANWILKAR, J.)