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1989 DIGILAW 109 (GUJ)

HARIJAN RATILAL MALABHAI v. STATE

1989-07-11

C.V.JANI, P.R.GOKULAKRISHNAN

body1989
P. R. GOKULAKRISHNAN, J. ( 1 ) THIS special criminal application is to issue a writ of mandamus or any other appropri- ate writ direction or order in order to quash and set aside the order dated 11-7-1989 passed by the respondent No. 2 at Annexure-C to the petition. In and by the externment order which is at Annexure-C to the special criminal application the externing authority who is the Sub- Divisional Magistrate Vadhwan Sub-Division Surendranagar in exercise of his power conferred under Section 57 (c) of the Bombay Police Act 1951 passed an order of externment externing the petitioner herein for a period of 2 years from the limits of Surendranagar District. Appeal thereof filed under Section 60 of the Act was dismissed by the Government of Gujarat by an order dated 17-10-1989 which is at Annexure-F to the special criminal application. Aggrieved by these orders the petitioner has preferred the present special criminal application. ( 2 ) VARIOUS contentions have been raised in the Special Criminal Application and Mr. D. M. Thakkar learned counsel for the petitioner stresses the point regarding the failure on the part of the externing authority to get himself satisfied with regard to the seriousness of the offence committed by the petitioner and the degree of harm his presence in the society will cause to the public at large. Mr. Thakkar also states that the externing authority has failed to consider the question as to how the petitioner will be of public menace if he is not externed from the locality. The learned Counsel for the petitioner has also pointed out that particulars of the convictions of the petitioner herein in respect of various cases filed against him have not been given and that according to the learned Counsel has vitiated the order of externment. As regards this contention it is clear from the facts of the case that the petitioner was served with a show cause notice with a schedule regarding the offences committed by him and the convictions accorded to him in the Court of law. Hence we do not think that this contention can be looked into for the purpose of setting aside the order of externment. ( 3 ) WE have carefully considered the first argument of Mr. D. M. Thakkar regarding the subjective satisfaction the authority has to make before any order of externment is passed. Hence we do not think that this contention can be looked into for the purpose of setting aside the order of externment. ( 3 ) WE have carefully considered the first argument of Mr. D. M. Thakkar regarding the subjective satisfaction the authority has to make before any order of externment is passed. The show-cause notice which is issued under Section 59 of the Bombay Police Act only states that:. . . I hereby inform you under Sec. 59 of the Bombay Police Act that in order to restrain you from carrying on such illegal activities it has been prima facie decided to extern you from the limits of city of Surendranagar and rural areas where it is apprehended that you might continue your such illegal activities. Thus there is only an apprehension to the effecct that the petitioner will continue his illegal activities if he is not externed. In the externment order also there is nothing to show that the authority concerned has reached the conclusion to the effect that if the petitioner is not externed from the limits of Surendranagar District the public peace and tranquillity will be affected and that the petitioner will be of a menace to the society. If such a conclusion is not reached Mr. D. M. Thakkar correctly contended that it will vitiate the externment order in view of the judgment rendered by this Court in 1985 (1) GLR page 194 [ = 1985 128 GLH 281 and 1985 (1)] GLR 199 (= 1985 GLH 47 ) 1982 (2) GLR 535 = 1982 GLH 1061 and 14 GLR 209. 14 GLR 209 (Koli Dana Nathu v. Sub-Div. Mag. Rajkot) is the earliest case which discussed the purport and ambit of Section 57 of the Act and as to how the same has to be invoked for the purpose of extern- ing the person concerned. While passing that order the Bench had in its mind as to how the cher- ished liberty of a citizen has to be protected when especially the act of this nature is invoked to extern a particular person. While passing that order the Bench had in its mind as to how the cher- ished liberty of a citizen has to be protected when especially the act of this nature is invoked to extern a particular person. The Bench observed:when the power is conferred on such a high authority which can result in such a serious impact by way of inroad on the cherished right of liberty of subject even though the high authority is proceeding to exercise that power to further the purposes of the Act if by mis-conception of law as to the nature of these guidelines it misdirects itself in law or if it goes beyond the mandated area the ultra vires orders can be corrected in judicial review. The Bench further observed:the guidelines are to be found in the fact that a judicial discretion is vested in this high authority who is to be satisfied not only of the two necessary conditions precedent that the person is likely to commit similar offences for which there were the necessary convictions as specified in the section but the public interest required the authority to impose this wide restraint by passing such an externment order. It was only when a person became so obnoxious as to render his presence in the locality concerned a menace to public interest including public peace and safety of public health and public moral that this wide power could be exercised by way of restraint on his liberty which would be reasonably imposed in general public interest. In cases of such persons who have been a menace their individual liberty must yield on considerations of public tranquil- lity public peace and safety or such considerations of public health and general public interest. In those cases only where the person concerned was a menace that he is required to be removed by resorting to the extraordinary process. The wider public interest must require these reasonable restrictions and the provision can be invoked against such a person who has become a menace to the society. It is obvious that the guidelines necessarily bring out the consideration of the public order or public interest in this narrover sense of the person becoming a public menace to the health safety or morals of the community. It is obvious that the guidelines necessarily bring out the consideration of the public order or public interest in this narrover sense of the person becoming a public menace to the health safety or morals of the community. Unless the even tempo of life of the locality is seriously disturbed in this sense by such activities this wider power of committing such serious inroads on individual liberty does not arise at all especially when this measure has to be taken only when preventive action under the Criminal Procedure Code which would meet all normal cases would not serve the purpose. Proceeding further the Bench observed:therefore the nature of the offences would not be the sole criterion and the authority would have to go into the other pertinent question whether the offending activities of the individ- ual concerned has reached that degree of harm to the society that the interest of the society or even of that particular locality required that this individual who had become a public menace should be externed from the locality. If the order is not in accordance with this perspective the order is clearly unconstitutional ultra vires order and could be surely quashed on that very ground even if the vires of the section is upheld. ( 4 ) IT is pertinent to note that this Bench decision directly deals with Section 57 of the Bombay Police Act. In this case the authority has confined his consideration to the nature of the convictions only as offences under Section 66 (1) (b) of the Prohibition Act. Even the au- thority admits that he had taken action on this ground of the petitioner being likely to commit offences similar to the aforesaid provision in Section 66 and that plea was founded on the fact that on two subsequent occasions the petitioner was found in a druken state. There- fore in the notice issued in that case there was no allegation as to the breach of peace or other activity harmful or injurious to the people or the society. There- fore in the notice issued in that case there was no allegation as to the breach of peace or other activity harmful or injurious to the people or the society. In spite of that an order of externment was passed and the Bench of the High Court held that the authorities have not gone on proper perspective or guidelines since it has not considered the extent of the harmful activities of the petitioner therein and has not observed as to what degree and extent the interest of the gen- eral public will be hampered if the petitioner therein is allowed to continue in that particular area. So it is necessary for the authority concerned to apply its mind and find as to how the peace and tranquillity and safely of the locality will be hampered if the party concerned is al- lowed to continue in that particular locality. Only if the authority finds that it is not safe to allow a particular person to reside in a particular locality the externment order can be passed. Following the very same principle the subsequent Benches have held that invoking Section 57 of the Bombay Police Act must conform to the abovesaid guidelines or otherwise the order of externment has to be struck down. In the case of Suresh Chhaganlal Luhana v. D. K. Doshit and Another reported in 1982 (2) GLR 535 = 1982 GLH 1061 the Bench of this High Court held: In the instant case the externing authority who has passed the impugned order under Sec- tion 57 (c) of the Bombay Police Act has committed the error of not having considered the extent of the harmful activity of the petitioner and whether it had reached such a degree or extent that in the interest of general public the petitioner was required to be removed from that locality by putting him out of the harms way so that the community in the locality could remain in peace and tranquillity and safety. The impugned order does not show that this aspect was present before the mental eye of the externing authority. ( 5 ) THE very same principles have been followed in the case of Koli Bhanabhai Bhalabhai v. State and in the case of Mohammedumar v. Dy. Police Commissioner reported in 1985 (1) GLR page 194 (= 1985 GLH 281 ) and 199) = 1985 GLH 47 ) respectively. ( 5 ) THE very same principles have been followed in the case of Koli Bhanabhai Bhalabhai v. State and in the case of Mohammedumar v. Dy. Police Commissioner reported in 1985 (1) GLR page 194 (= 1985 GLH 281 ) and 199) = 1985 GLH 47 ) respectively. Applying the principles laid down in the abovesaid decisions it is clear that the externing authority except stating that it was apprehended that the petitioner may continue in such illegal activites no further exorcise has been made in order to find out as to how the continuance of the petitioner in that locality will affect the public peace and tranquillity and that how the petitioner will be a menace to the society if he is not externed immediately. Such conclusion has to be arrived at by the externing authority before it passes any order of externment or otherwise the order of externment will stand vitiated. Such findings as laid down by the abovesaid directions which are must as far as cases of externment concerned have not been given in this present case. Mr. B. D. Desai learned Counsel for the respondents is not able to defend the order of the externing authority since it lacks the finding as regards the important guidelines set out by various Benches of this High Court. ( 6 ) IN these circumstances the orders of externment which are at Annexure E and F are quashed and set aside. Rule is made absolute. .