Ganeshbhai Kishanbhai Ghatte vs Sub Divisional Magistrate
2021 Latest Caselaw 17492 Guj

    R/SCR.A/10007/2021                                      JUDGMENT DATED: 22/11/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/SPECIAL CRIMINAL APPLICATION NO.                      10007 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI   :
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1  Whether Reporters of Local Papers may be
   allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
   fair copy of the judgment ?
4 Whether this case involves a substantial
   question of law as to the interpretation
   of the Constitution of India or any
   order made thereunder ?
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              GANESHBHAI KISHANBHAI GHATTE
                          Versus
                SUB DIVISIONAL MAGISTRATE
=======================================================
Appearance:
MR JB DASTOOR(239) for the Applicant(s) No. 1
MR NAVIN N CHAUHAN(2255) for the Applicant(s) No. 1
MS MAITHALI MEHTA APP (2) for the Respondent(s) No.1-3
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 22/11/2021
                                ORAL JUDGMENT

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has challenged the order of externment dated 11.12.2020 passed by the respondent no.1 in Externment Case No.15/2020.

2. Heard learned advocate, Mr. J.B. Dastoor appearing for the petitioner and learned APP Ms. Maithali Mehta for the respondents.

3. Learned advocate for the petitioner has mainly contended that the respondent no.1 has passed an

R/SCR.A/10007/2021 JUDGMENT DATED: 22/11/2021

order dated 11.12.2020 while exercising powers under Section 56 of the Gujarat Police Act, whereby the petitioner is externed from Navsari, Valsad, Dang, Surat City, Surat Rural, Tapi, Bharuch and Narmada districts as well as from Union Territory of Daman, Selvas and Dadaranagar Haweli. It is further submitted that while passing the impugned order, the respondent no.1 has considered four FIRs, which have been registered against the petitioner before Vijalpore Police Station. Learned advocate has referred to the impugned, order, copy of which is placed on record at Page No.14 of the compilation. Learned advocate has referred to the details of the FIR and after referring to the same, it is contended that it is not open for the respondent no.1 to pass the impugned order externing the petitioner from Union Territory of Daman, Selvas and Dadaranagar Haweli. It is further submitted that no reasons are assigned by the respondent no.1 while externing the petitioner from other districts except Navsari districts, where four FIRs have been registered against the petitioner as no FIR has been registered against the petitioner outside Navsari district including Union Territory of Daman, Selvas and Dadaranagar Haweli. In support of this submission, learned advocate for the petitioner, thereafter, has placed reliance upon the order dated 18.08.2021 passed by this Court in Special Criminal Application No.2547/2021 and, thereafter, submitted that in a similar type of matter, this Court has observed that the powers cannot be

R/SCR.A/10007/2021 JUDGMENT DATED: 22/11/2021

exercised by the Sub Divisional Magistrate, where the territory of State of Gujarat ends and thus, it is not open for the respondent no.1 to extern the petitioner from the Union Territory of Daman, Selvas and Dadaranagar Haweli.

4. Learned advocate for the petitioner, thereafter, submitted that as per the information received by the petitioner, now the Home Department, State of Gujarat has issued Circular dated 31.08.2021 relying upon the order dated 22.07.2021 passed by this Court in Special Criminal Application No.6968/2021. It is submitted that as per the said Circular, now the concerned Sub Divisional Magistrates are instructed to see that if FIR is not registered in a particularly district, a person cannot be externed from the said district. Learned advocate for the petitioner has, therefore, urged that the impugned order be quashed and set aside.

5. On the other hand, learned APP has opposed this petition and mainly contended that the present petition may not be entertained as the petitioner is having alternative remedy of filing appeal under Section 60 of the Gujarat Police Act before the appellate authority. It is further submitted that no error is committed by the respondent no.1 while passing impugned order. Learned APP would submit that while passing an impugned order, the respondent no.1 has considered four FIRs registered against the petitioner. Learned APP has, therefore, urged that this petition may not be entertained.

R/SCR.A/10007/2021 JUDGMENT DATED: 22/11/2021

6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the respondent no.1 has passed an impugned order while exercising powers under Section 56 of the Gujarat Police Act relying upon four FIRs registered against the petitioners, out of which, three FIRs are registered under the provision of the Indian Penal Code and one FIR is register under the provision of the Prohibition Act, all registered with Vijalpore Police Station, Navsari. It is not in dispute that not a single FIR is registered against the petitioner other than Navsari district, inspite of that, the petitioner has been externed from eight districts of State of Gujarat and Union Territory of Daman, Selvas and Dadaranagar Haweli.

7. At this stage, this Court would like to refer to relevant Paragraph Nos.4.2 and 4.4 of the order dated 18.08.2021 passed by this Court in Special Criminal Application No.2547/2021, which reads as under, "4.2 The Sub-Divisional Magistrate, Navsari has passed the impugned order of externment of the petitioner from even the Union Territories of Daman and Dadra Nagar Haveli, over which, not only the concerned Sub-Division Magistrate can not have any jurisdiction, even the Act can not be made applicable. This is further aggravated by the stand taken before this Court, which is as under.

4.4. The above shows, how casually and unauthorisedly the Police and the Revenue Authorities are encroaching upon the liberty of the citizen. It also shows that

R/SCR.A/10007/2021 JUDGMENT DATED: 22/11/2021

circulars are required to be issued by the State Authorities to educate the Officers working as Sub-Divisional Magistrates, where the territory of the State of Gujarat ends and further where the powers can not be exercised by the Sub-Divisional Magistrates. The freedom of the citizen is at stake because of such exercise of powers. This is the state of affairs and this is how the defences are taken before the Court. In totality this Court finds that, not only cost needs to be imposed against the State, the State Authorities also need to take corrective / punitive measures in this regard."

8. At this stage, it is required to be noted that upon making inquiry from learned APP with regard to the submission made by learned advocate for the petitioner with regard to the Circular dated 31.08.2021 issued by the Home Department, State of Gujarat relying upon the order dated 22.07.2021 passed by this Court in Special Criminal Application No.6968/2021, learned APP has placed on record the said Circular dated 22.07.2021. This Court has perused the said Circular. On perusal of the said Circular, it is revealed that the concerned Sub Divisional Magistrates are instructed to see that while preparing proposal for externment and while passing order for externment, it has to be seen that if no FIR has been registered against a person in nearby adjacent district and if he is not involved in any criminal activity and if there is no specific grounds, no order of externment can be passed against the said person.

9. Thus keeping in view of the aforesaid order dated

R/SCR.A/10007/2021 JUDGMENT DATED: 22/11/2021

18.08.2021 passed by this Court in Special Criminal Application No.2547/2021 as well as Circular dated 22.07.2021 issued by the Home Department, State of Gujarat, it is not open for the respondent no.1 to extern the petitioner from eight districts of State of Gujarat and Union Territory of Daman, Selvas and Dadaranagar Haweli. Therefore as the impugned order is without jurisdiction, the present petition deserves to be allowed though alternative remedy is available to the petitioner of filing appeal before the appellate authority

10. Therefore, the present petition stands allowed.

The impugned order dated 11.12.2020 passed by the respondent no.1 in Externment Case No.15/2020 is hereby quashed and set aside. It is open for the respondent no.1 to pass fresh order in accordance with law after considering the provision contained in Section 56 of the Gujarat Police Act, Circular dated 31.08.2021 issued by the Home Department, State of Gujarat and the order dated 18.08.2021 passed by this Court in Special Criminal Application No.2547/2021 considering the fact that after passing of the impugned order dated 11.12.2020, almost 11 months are over. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VIPUL M. PANCHOLI, J.) Gautam