Balubha Ramji Jadeja vs State Of Gujarat
2022 Latest Caselaw 8874 Guj

      R/SCR.A/9661/2022                                ORDER DATED: 07/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/SPECIAL CRIMINAL APPLICATION NO. 9661 of 2022
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                          BALUBHA RAMJI JADEJA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
KULDEEP J MEHTA(8571) for the Applicant(s) No. 1
MR MEET M KATIRA(10504) for the Applicant(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3,4
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 07/10/2022
                       ORAL ORDER

1. The present writ petition has been filed seeking quashing and setting aside the order dated 19.07.2022 passed by the Sub-divisional Magistrate, Bhachau, Kutch externing the petitioner for a period of six months from Kutch district.

2. Learned advocate Mr.Katira appearing for the petitioner has submitted that the impugned order of externment is required to be set aside since the same is premised on registration of 4 FIRs against the petitioner under the provision of Sections 323, 324, 325, 143, 147, 148, 149, 506(2) and 94(b) of the Indian Penal Code, 1860 (IPC) and Section 135 of the G.P.Act. It is submitted that merely because 4 FIRs are registered against the petitioner, the same will not make him a dangerous person. He has submitted that in the case of other accused, who are named in the FIR, this Court has already set aside the impugned order of externment.

3. In support of his submissions, learned advocate Mr.Katira has placed reliance on the judgment of this Court in the case of Premjibhai Devjibhai Mewada Vs. State of Gujarat and Ors., 2006 (3) GLH 105. Thus, he has submitted that the impugned order, which is passed without jurisdiction and premised on incorrect subjective satisfaction, is required to be set aside.

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4. Per contra, learned APP Ms.Patel has submitted that the impugned order does not require any interference of this Court. She has referred to the provision of Section 56 of the G.P.Act and has submitted that the petitioner is a headstrong person hence, the present writ petition may not be entertained.

5. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

6. It is not in dispute and an admitted fact that the petitioner was issued the show-cause notice under the provision of Section 59 of the G.P.Act by placing reliance on four FIRs registered under the provisions of Sections 323, 324, 325, 143, 147, 148, 149, 506(2) and 94(b) of the IPC and Section 135 of the G.P.Act at Lakadiya Police Station, Kutch (East) Gandhidham. After placing reliance on the statements of two witnesses, the respondent authorities have externed the petitioner from the entire Kutch district for a period of six months.

7. I may with profit also refer to the observations made by this Court in the case of Nana @ Raju Totaram Dusane (Sonara) Vs. State of Gujarat and Ors., (2021) 1 GLH 460. This Court, in the analogous case, where the petitioner was externed on the basis of registration of two FIRs under the provisions of Sections 379, 392, 397, 506(2) and 120B of the IPC, has held thus:

"10. Having heard the arguments advanced by the learned Advocates appearing for the respective parties and the authorities cited by the learned advocate for the applicant, it appears that the subjective satisfaction arrived at by issuing so called notice under the B. P. Act by the authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged cannot have any bearing on the breach of public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the petitioner cannot be said to be so germane. Unless and until, the material is there to make out a case that

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the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person. The authorities declared the present petitioner as dangerous person, who would enhance and provoke anti social activities, but there should be some subjective satisfaction, without there being subjective satisfaction, how the authority can issue notice to the effect as person for externment."

8. The conspectus of the aforesaid decision would reveal that the respondent authorities, while exercising power under the provision of G.P.Act for externment of any person have to arrive at a subjective satisfaction to the effect that the offences or illegal activities committed by such person, would result into breach of public order as required under the Act or Penal Laws. The authorities are under a legal obligation to analyze the material facts and arrive at a conclusion that such person has become threat and menace to the society so as to disturb the equilibrium of the society and also that the public at large is in peril and public order is also disturbed at the instance of such person. The authorities have to give a specific finding that such person is a dangerous person, who would enhance and provoke the anti-social activities. Such a subjective satisfaction is required to be based on concrete and specific details and not on vague statements or material.

9. Before I part with the judgment, I may incorporate the observations made by the Division Bench way back in 1995 in case of Sabbirmiya Allarakha Saiyed vs Commissioner of Police, Vadodara, 1995 (2) GLR 1430. The Division Bench, after examining the provision of Sections 56 and 59 of the G.P.Act, has observed thus:

" 4.Upon hearing the learned Advocates appearing for the respective parties, it cannot be gainsaid that the petitioner is not an anti-social harassing the innocent citizens of the concerned area of Vadodara, and for that purpose, the Externing Authority has committed any error in accepting and relying upon the statements given by various

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witnesses of the area. However, at the same time, as apprehended by the learned Advocate appearing for the petitioner, it prima facie appears that while passing the impugned order of externment, the Externing Authority has lost sight of the relevant provision contained in Sec. 56 of the Act vesting a discretion in it as to whether out of two preventive remedies available, viz., firstly, comparatively milder one, less drastic by directing the petitioner so as to conduct himself as a well-behaved citizen by asking him to furnish a bond of surety guarantee of good conduct during the stipulated period, and secondly, the extreme preventive measure of externing him out of the area .In order to appreciate this particular limb of the argument advanced on behalf of the petitioner, it is necessary to have a brief look at the relevant provision of Sec. 56 of the Act, which reads as under :-

"........ the said officer may, by an order in writing as duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall deem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction............."

5. On careful perusal of the above provision, it is quite clear that the Legislature in its wisdom has rightly left open two courses of the preventive measures to the Externing Authority at the time of passing the order under Sec. 56 of the G.P.Act - they are on the one hand to direct the proposed externee so as to conduct himself in a well-behaved and orderly fashion by taking from him surety bonds and imposing some reasonable terms and conditions, or to remove him out of the area of his jurisdiction as well as the adjoining districts. When such is an unambiguous legal position, and more particularly in view of the alternative specific prayer made by the petitioner that for the special grounds stated in his written statement, he may not be externed from the concerned area and instead some surety bond for good behaviour be taken from him, the Externing Authority was duty bound to apply its mind as to out of the two preventive remedies available which one was required to be resorted to. ............

.....................Apart this, if in the first instance, the less drastic remedy, viz., of taking surety bond of good behaviour is taken from the person against whom the notice under Sec. 59 of the G.P.Act is issued then in a way, there is indeed nothing wrong in it for the simple reason that the concerned person is thereby given an opportunity to improve and behave well. In case, despite this opportunity being given of improving himself, if the concerned person misbehaves, the Externing Authority

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would be certainly not powerless in at once resorting to the extreme preventive remedy, viz., that of externment. Once again this suggestion of the Court should not be taken as binding down the Externing Authority to pass the order of less drastic remedy of seeking surety bond and not to pass externment order in each and every case. In fact, it is just a suggestion which the Externing Authority must bear in mind while passing the order of externment."

10. The Division Bench has observed that under section 56 of the G.P.Act, the authority vested with the discretion has to arrive at a subjective sanctification as to whether out of two preventive remedies available, viz., firstly, comparatively milder one, less drastic by directing such person so as to conduct himself as a well-behaved citizen by asking him to furnish a bond of surety guarantee of good conduct during the stipulated period, or secondly, the extreme preventive measure of externing him out of the area is required to be resorted to. Finally, the Division Bench has observed that "Once again this suggestion of the Court should not be taken as binding down the Externing Authority to pass the order of less drastic remedy of seeking surety bond and not to pass externment order in each and every case. In fact, it is just a suggestion which the Externing Authority must bear in mind while passing the order of externment.". Though the Division Bench has left to the desertion of the Exeterning Authoirty to resort to any of the remedies, but at the same time it is directed that the Externing Authority must bear in mind the "suggestion" expressed by it. It appears that the respondent- authorities have totally ignored the suggestion expressed by the Division Bench. Thus, the externing authority was required to apply mind to the suggestion of the Division Bench for resorting to lesser remedy before passing the externment order.

R/SCR.A/9661/2022 ORDER DATED: 07/10/2022

11. On the substratum of the aforenoted observations, the impugned externment order passed by the respondent authorities is herewith quashed and set aside.

12. On the substratum of the aforenoted observations, the impugned externment order passed by the respondent authority is herewith quashed and set aside. The present writ petition stands allowed. Rule made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/149