Aspaksha Ismailsha Rafai Fakir vs The Sub Divisional Magistrate
2021 Latest Caselaw 5498 Guj

         R/SCR.A/4778/2021                            ORDERDATED:25/05/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CRIMINAL APPLICATION NO. 4778 of 2021
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                ASPAKSHA ISMAILSHA RAFAI FAKIR
                             Versus
            THE SUB DIVISIONAL MAGISTRATE & 2 other(s)
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Appearance:
MS JAHNVI N KAPADIA(10987) for the Applicant(s) No. 1
MS VASVI N KAPADIA(6079) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
MR. PRANAV TRIVEDI, APP for the Respondent(s) No. 3
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 CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 25/05/2021
                               ORAL ORDER

1. The present petitioner prays for quashing and setting aside the impugned order dated 03.02.2021 passed by the Sub Divisional Magistrate, Junagadh Division, Junagadh in Externment Case No. 24 of 2020, whereby the petitioner was ordered to be sent to District Jail, Bhuj till 08.06.2022. The Sub Divisional Magistrate, Junagadh Division, Junagadh while passing the order as stated to have invoked the provision under Section 62 of the Gujarat Police Act, 1951.

2. Learned advocate Mr. R.N.Kapadia for the petitioner has submitted that the impugned order is illegal and the Sub Divisional Magistrate has no such authority to detain the petitioner and send him to jail custody.

3. Learned advocate Mr.Kapadia has submitted that the implementation of the said order has led to the illegal detention of the present petitioner where the proceedings under Section 142 of the Gujarat Police Act has already been initiated against him for violation of the externment order

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dated 08.12.2020 in Externment Case No. 24 of 2020.

4. Learned advocate Mr. Kapadia has submitted that the petitioner has already been granted bail for the proceedings under Section 142 of the Gujarat Police Act. He has further submitted that the petitioner has not been accorded the opportunity of defending himself and the detention in jail would amount to pre-trial conviction without any authority of law.

5. Learned advocate Mr.Kapadia, for the petitioner has placed reliance on the judgment in the case of Rameshji Panchaji Thakor Vs. State of Gujarat, reported in 2001(1) GLR 171 and has submitted that if a person is externed from certain area for certain period and during that period the said externee re-enters in the same area, then in accordance with the provisions of Section 62 of the Gujarat Police Act, the authority concerned may cause him to be arrested and get him removed from that concerned area. Thereafter, the only recourse available to the concerned authority would be to prosecute the defaulter under Section 142 of the Gujarat Police Act. Learned advocate Mr. Kapadia has submitted that Section 62 of the Gujarat Police Act nowhere permits the concerned authority to detain such person in jail.

6. Learned APP Mr. Pranav Trivedi, has drawn the attention to the order of Sub Divisional Magistrate and submitted that the concerned Sub Divisional Magistrate has given reasons for passing the order and as the petitioner was found to be guilty in breaching the conditions of externment, the Sub Divisional Magistrate has passed an order under the provisions of Section

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62 of the Gujarat Police Act finding the petitioner to be in continuous breach of order and considering the fact of defaulter's knowledge of the provision of law found fit to sent the petitioner to District Jail, Bhuj.

Section 62 of the Gujarat Police Act reads as under;-

"62. Procedure on failure of person to leave the area and his entry therein after removal

(1) If a person to whom a direction has been issued under section 55, 56 or 57 to remove himself from an area -

(i) fails to remove himself as directed, or

(ii) having so removed himself, except with the permission in writing of the authority making the order as provided in sub-section (2), enters the area within the period specified in the order, the authority concerned may cause him to be arrested and removed in police custody to such place outside the area as the said authority may in each case prescribe.

The authority making an order under section 55, 56 or 57 may in writing permit any person in respect of whom such order has been made to enter to return to the area, including any contiguous districts or part thereof, from which he was directed to remove himself, for such temporary period and subject to such conditions as may be specified in such permission and may require him to enter into a bound with or without surety for the due observance of the conditions imposed. The authority aforesaid may at any time revoke at any time such permission. Any person who with such permission enters or returns to such area shall observe the conditions imposed, and at the expiry of the temporary period for which he was permitted to enter or return, or on the earlier revocation of such permission, shall remove himself outside such area, or the area and any contiguous districts or part thereof, and shall not enter therein

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or return thereto within the unexpired residue of the period specified in the original order made under section 55, 56 or 57 without a fresh permission. If such person fails to observe any of the conditions imposed, or to remove himself accordingly, or having so removed himself enters or returns to the area, or the area and any contiguous district or part thereof, without fresh permission, the authority concerned may cause him to be arrested and removed in police custody to such place outside the area as that authority may in each case prescribe."

Section 62 as referred hereinabove raises the procedure to be followed on failure of any person to leave the area or in case of his entry in the area after his removal. The provision lays down that if a person to whom a direction has been issued under sections 55, 56 or 57 to remove himself from an area fails to remove himself as directed, or having so removed himself, except with the permission in writing of the authority making the order as provided in sub-section (2), enters the area within the period specified in the order, the authority concerned may cause him to be arrested and get him removed in police custody.

7. In the case of Rameshji Panchaji Thakor (Supra), it has been laid down that Section 62 of the Gujarat Police Act does not, in any manner, invest the externing authority with a power to send the externee in jail custody who is found to be in continuous breach of condition of externment order even after his removal from the area. It has also been observed that such interpretation of trusting the authority to empower the externing authority to send the externee to jail would amount to making the provisions under Section 142 of the Gujarat

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Police Act redundant, which is in regard to the punishment for breach of externment order.

8. Here in this case, the present petitioner, vide order dated 08.12.2021 in Externment Case No. 24 of 2020, was ordered to remove himself from Junagadh district and it was observed that without prior permission, the petitioner has often breached the externment order while entering taluka and City of Junagadh illegally and unauthorizedly. In continuation of the proceedings in Externment Case No. 24 of 2020, the Sub Divisional Magistrate, Junagadh referring to provision of Section 62 of the Gujarat Police Act, 1951 ordered the petitioner to be sent to District Jail, Bhuj till 08.06.2022. It is submitted that the proceedings under Section 142 of the Bombay Police Act has already been initiated against the petitioner and the petitioner is on bail in connection with the offence registered against him. The trial is yet to progress. Whether there is any breach of externment order is yet to be decided. The evidence are yet to be recorded. Whether there is any breach of externment order i.e. whether there is guilt on the party of the petitioner is to be decided in accordance with the provisions of law.

9. In the case of Rameshji Panchaji Thakor (Supra), it has been observed in paragraph 6.5, which reads as under: -

6.5 "One more adverse effect of the impugned order, if sustained, would be that the petitioner would be punished twice, for the same act of committing breach of externment order, if ultimately he is convicted in proceedings under Section 142 of the Gujarat Police Act. This also cannot be permitted to happen."

10. In view of the aforesaid observations, as has been directed in the referred case of Rameshji Panchaji Thakor (Supra), the

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externing authority would have no power under Section 62 of the Bombay Police Act to send the externee to the jail custody , the present petitioner is required to be released immediately. Thus, the present application is allowed and the impugned order dated 03.02.2021 of Sub Divisional Magistrate, Junagadh Division, Junagadh is hereby quashed and set aside. The petitioner is ordered to be set free from the jail custody.

Sd/-

(GITA GOPI,J) VISHAL MISHRA