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2023 DIGILAW 181 (GUJ)

Sangrambhai Gelabhai Bharwad v. State Of Gujarat

2023-01-20

NIKHIL S.KARIEL

body2023
JUDGMENT : 1. Heard learned Advocate Mr. Kishan Prajapati on behalf of the applicant and learned Additional Public Prosecutor Ms. Asmita Patel on behalf of the respondent- State. 2. Rule returnable forthwith. Learned APP waives service of rule on behalf of the respondent no.1- State. 3. By way of this application the applicant challenges orders dated 21.12.2022 confirming an order dated 05.09.2022 passed by the Assistant Commissioner of Police, “L” Division, Ahmedabad City whereby the present applicant had been externed from Ahmedabad City as well as other contiguous districts. By way of the later order i.e. order dated 21.12.2022 the Appellate Authority while modifying the order insofar as the said order externs the present applicant from the contiguous districts, confirms the order insofar as the externment from Ahmedabad District is concerned. 4. Learned Advocate Mr. Prajapati on behalf of the applicant would submit that the order of externment and order passed by the appellate authority, do not reflect any application of mind. Learned Advocate would further submit that both the orders do not reflect subjective satisfaction arrived at by the authority on basis of objective material placed before it. Learned Advocate would further submit that one of the most crucial aspects i.e. the FIRs and the NC complaints filed against the present applicant, being at the behest of one Lalabhai Revabhai Bharwad, with whom the present applicant had a civil dispute, not being considered by the authority and most importantly the authorities not considering that the testimony of the secret witnesses, was not required to be considered, since prima facie they appear to be absurd. 5. As against the same, learned Additional Public Prosecutor Ms. Patel would submit that while the authority passing the impugned order, had externed the present applicant from Ahmedabad District as well as other contiguous districts including Kheda, Mehsana and Gandhinagar, the Appellate Authority, after considering the issues raised by the present applicant, had set aside the order of externment insofar as the contiguous districts are concerned and whereas the order insofar as it refers to the Ahmedabad District, the Appellate Authority has confirmed the order of externment. Learned APP would submit that the said action on part of the appellate authority clearly reflects application of mind by the authority and whereas according to learned APP, there is no requirement that the Appellate Authority or even the authority passing the externment order is required to pass an elaborate reasoned order as in the nature of a judicial order. 5.1 Learned APP would further submit that the testimony of the secret witnesses clearly reveal that the present applicant was a dangerous person and whereas the facts of there being two FIRs and two NC complaints against the present applicant also point out to the same fact that the present applicant was a person who was regularly coming into conflict with the law. Learned APP would submit that the applicant having been given adequate opportunity by the authority while passing the impugned order and whereas the Appellate Authority also not interfering with the order insofar as the applicant was externed from Ahmedabad District, therefore, this Court may not interfere with the impugned order. 6. In rejoinder learned Advocate Mr. Prajapati would rely upon decision of the Hon’ble Supreme Court in case of Deepak s/o Laxman Dongre vs. the State of Maharashrta & Ors. reported in AIR 2022 SC 1241 whereby the Hon’ble Supreme Court has laid down the broad parameters, in which the Court could exercise jurisdiction while considering challenge to an order of externment. Having regard to the observations made by the Hon’ble Supreme Court learned Advocate Mr. Prajapati would request this Court to set aside the impugned orders. 7. Heard learned Advocate for the respective parties who have not stated anything further. 8. It requires to be noted that Section 56 of the Gujarat Police Act 1951, inter alia empowers the Commissioner or the District Magistrate or the Sub Divisional Magistrate as may be to extern persons from local limits of their jurisdiction to any other district or districts. Heard learned Advocate for the respective parties who have not stated anything further. 8. It requires to be noted that Section 56 of the Gujarat Police Act 1951, inter alia empowers the Commissioner or the District Magistrate or the Sub Divisional Magistrate as may be to extern persons from local limits of their jurisdiction to any other district or districts. The said section inter alia lays down the condition when such powers would be exercised and whereas it appears that three requirements, on basis of which such power could be exercised being (a) that the movements of the person are caused or calculated to cause alarm, danger or harm to person or property; (b) that there are reasonable grounds for believing that the person concerned is engaged or about to be engaged in commission of offences involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or abetment to such offence the officer concerned was also empowered to take statement of witnesses, even such type of witnesses who would not be willing to come forward to give evidence in public apprehending their own safety or safety of their property; (c) (since the said condition is not relatable to the facts on hand, the said condition is not mentioned herein). 9. It is required to be noted that the Hon’ble Supreme Court in a recent decision in case of Deepak s/o Laxman Dongre (supra), while dealing with case of a person who had been externed in exercise of powers under Section 56 of the Bombay Police Act, has inter alia laid down/reiterated the parameters in which power under Section 56 ought to be exercised and in a challenge against an order passed under Section 56, what should be the aspects which ought to be considered by the Court. Paragraph No.7 and Paragraph No. 10 of the said decision, being relevant for the present purpose are quoted hereinbelow for benefit: “7 There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along 5with his family members during the period for which this order is in subsistence. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along 5with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). 10. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). 10. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the ground of mala fide, unreasonableness or arbitrariness.” 10. From a perusal of the above observations of the Hon’ble Supreme Court it would clearly appear that for invoking power under Section 56 (a), as above, there must be some material /objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. The authority was also required to consider that there must be objective material on basis of which the competent authority should record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or about to be engaged in commission of an offence involving force or violence or offences punishable under chapter Chapter XII, XVI or XVII of the Indian Penal Code. 10.1 The Hon’ble Supreme Court has inter alia observed that in a challenge to an order of externment, the court cannot go into a question of sufficiency of material on basis of which subjective satisfaction has been recorded whereas the Court is empowered to consider whether there existed any material on basis of which a subjective satisfaction could have been recorded. Furthermore it is also laid down by the Hon’ble Supreme Court that the Court can interfere when there is no material whatsoever for arriving at a subjective satisfaction or where relevant material, has not been considered. The Hon’ble Supreme Court has further elaborated by saying that merely because there was another view possible, the Court should not interfere and whereas like every administrative order, judicial review according to Ho’nble Supreme Court was permissible on the grounds of malafide, unreasonableness or arbitrariness. 11. Keeping the above parameters in mind, this Court will now proceed to examine the orders passed by the externing authority as well as the appellate authority. 11.1 It appears that insofar as the externing authority is concerned, the externing authority records the statements given by secret witnesses and lists the FIRs as well as NC complaints registered against the present applicant. A perusal of the said decision, does not reveal any subjective satisfaction arrived at by the authority concerned on basis of the objective material placed before the authority that the activity of the present applicant was causing alarm or danger or harm to persons or property concerned. The authority concerned was also required to come to a conclusion that the person concerned is either engaged or about to be engaged in unlawful activities as mentioned under Section 56(b) of the Bombay Police Act. In the instant case, the authority concerned while passing order of externment dated 05.09.2022 had recited the statements given by the witnesses against the present applicant and has also set out the number of cases against the present applicant. It appears that after reciting the statements of the secret witnesses and after stating the number of cases registered against the present applicant it does not appear that the authority has arrived at any subjective satisfaction. It requires to be noted that the authority after recording the facts, has directly gone on to hold that the applicant is required to be externed from the Ahmedabad District as well as other contiguous districts. It requires to be noted that the authority after recording the facts, has directly gone on to hold that the applicant is required to be externed from the Ahmedabad District as well as other contiguous districts. The primary rather the most important requirement as laid down by the Hon’ble Supreme Court, that subjective satisfaction of the authority concerned to be arrived at on basis of objective material, is completely missing in the orders passed by the authority externing the present applicant. 12. It further requires to be noted that in case of the order passed by the appellate authority while it appears that the appellate authority has given reasons, it does not appear that the reasons, were in any manner reflective of the subjective satisfaction arrived at by appellate authority rather it appears that the reasons where more or less in support of the action on part of the appellate authority of setting aside the externment of the applicant from contiguous districts. Thus it appears that on the ground of the order not reflecting subjective satisfaction arrived at by the authority, is required to be interfered with. 13. Furthermore it also requires to be mentioned here that the authority concerned had failed to appreciate one relevant aspect i.e. the FIR as well as the NC complaints against present applicant appear to be a consequence of some civil/revenue dispute between the applicant and his family members and one Lalabhai Revabhai Bharwad, who was first informant of the FIR against the present applicant and wheres it also appears that the NC complaints also appear to have been filed at the behest of the same person. Such relevant aspect more particularly FIRs being filed against the present applicant, on account of inter se dispute of private parties, was also an aspect which ought to have weighed with the authority before passing of the order concerned. 14. At this stage it would be relevant to refer to decision of Hon’ble Supreme Court in case of Rahmat Khan @ Rammu Bismillah vs. Deputy Commissioner of Police reported in 2021 (8) SCC 362 whereby the Hon’ble Supreme Court had inter alia while explaining the reason for passing of a externment order, has also observed that vindictive or retaliatory FIRs, could not be the ground on which the externment order could be passed. Paragraphs no. Paragraphs no. 33, 34 and 35 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit: “33. From the judgments cited on behalf of the State, it is patently clear that Sections 56 to 59 of the Act are intended to prevent lawlessness and deal with a class of lawless elements in society who cannot be brought to book by established methods of penal action, upon judicial trial. 34. An externment order may sometimes be necessary for maintenance of law and order. However the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace. In this case, it is patently clear that the impugned externment order was an outcome of the complaints lodged by the Appellant against government officials, some Madrasas and persons connected with such Madarasas who later lodged FIRs against the Appellant. The FIRs are clearly vindictive, retaliatory and aimed to teach a lesson to the Appellant and stifle his voice. 35. In the facts and circumstances of this case, the notices of externment and the impugned externment order based on Crime Nos 344 of 2017, 352 of 2017 registered with Nagpuri Gate Police Station and Crime No.501 of 2017 registered with the Kotwali Police Station in Amravati City are patently arbitrary, mala fide, unsustainable in law and liable to be set aside.” 15. From the observations of the Hon’ble Supreme Court while it becomes clear that the order of externment is intended to prevent lawlessness and to deal with a class of lawless elements in the society which cannot be brought to book by established methods of penal action upon judicial trial but at the same time, the material which would weigh with the authority, is such that the authority should come to a conclusion that the person concerned who is sought to be externed is the lawless class of the society whereas merely on account of FIRs, which were retaliatory and vindictive in nature, the authorities would not be permitted to extern a person. The same situation has arisen in the instant case, inasmuch as FIRs and N.C. complaints, which were filed on account of certain civil disputes between the present applicant and another person being the basis of the externment orders, in the considered opinion of this Court, the said order could not be sustained. 16. Having regard to the circumstances as narrated hereinabove, and the observations and conclusions of this Court as hereinabove in the considered opinion of this Court, the orders suffering from the vices as described by the Hon’ble Supreme Court at paragraph no. 10 of the decision in case of Deepak s/o Laxman Dongre (supra), the impugned order deserves interference. As a result of the same, the impugned orders dated 05.09.2022 and order dated 21.12.2022 passed by the appellate authority in Externment Appeal No. 55 of 2022 whereby the present applicant had challenged order dated 05.09.2022 are both quashed and set aside. 17. The present application is allowed. Rule is made absolute to the above extent.