Manishbhai Omprakash Joshi vs State Of Gujarat
2022 Latest Caselaw 7530 Guj

      R/SCR.A/613/2022                                 ORDER DATED: 05/09/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 613 of 2022
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                          MANISHBHAI OMPRAKASH JOSHI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ANIL H RATHOD(9691) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
MS KRINA CALLA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 05/09/2022
                   ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for the respondent-State.

2. The present petition has been filed seeking quashing and setting aside the impugned order dated 25.10.2021 passed in Externment Appeal No.43 of 2021 by the Additional Secretary, Home Department and the order dated 16.12.2020 passed by the respondent No.2 in Hadpar Case No.76 of 2020.

3. On 16.12.2021, the petitioner was served with a show cause notice by the respondent no.2 under Section 56(K) of the Gujarat Police Act, 1951 externing him from Ahmedabad City and its surrounding districts being Ahmedabad Rural, Gandhinagar, Kheda and Mehsana for a period of two years from the service of externment order.

4. Initially, the respondent No.2 passed an order dated 16.12.2020 externing the petitioner for 2 years from Ahmedabad (City), Ahmedabad (Rural) and adjoining districts

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i.e. Gandhinagar, Kheda and Mehsana districts, however, in appeal, the Appellate Authority has restricted the same for Ahmedabad district (City).

5. Learned advocate Mr.Anil H. Rathod, appearing for the petitioner has submitted that the impugned orders are required to be quashed and set aside, since the statements of witnesses, on which, the reliance is placed for externing the petitioner were not supplied to the petitioner. He has submitted that only on the basis of the statement of 8 witnesses and four offences mentioned therein, of which, two offences pertain to the prohibition, the petitioner has been ordered to be externed for 2 years from Ahmedabad (City), Ahmedabad (Rural) and adjoining districts i.e. Gandhinagar, Kheda and Mehsana districts. Learned advocate has further submitted that other two offences referred in the impugned orders under Sections 143, 147, 149, 294(B), 506(1) of the Indian Penal Code, 1860 (for short, "the IPC") and under Section 323, 294(B) and 506(2) of the IPC and Section 135(1) of the G.P.Act. It is submitted by him that the petitioner cannot be said to be a dangerous person, who would enhance and provoke the anti-social activities.

5.1 Learned advocate for the petitioner has placed reliance on the judgment of this Court in the case of Amol Tukaram Zine Vs. State of Gujarat and Ors., Special Criminal Application No.338 of 2017 dated 09.01.2018 and has submitted that externing authority under the provision of Section 56 (b) of the Gujarat Police Act (the G.P. Act) has power to extern a person

R/SCR.A/613/2022 ORDER DATED: 05/09/2022

not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to his own district. It is submitted that the criteria for passing such an order is provided for in Section 56(b) of the G.P. Act and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority that it was necessary not only to extern a person from his own district but also from the contiguous district.

6. Per contra, learned APP Ms.Calla has submitted that the impugned orders do not require any interference of this Court. She has referred to the provision of Section 56(b) of the G.P.Act. She has submitted that all the witnesses have in fact not deposed against the petitioner due to the fear imbibed in them and hence, the present writ petition may not be entertained.

7. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench in the case of Amol Tukaram Zine (supra). The Coordinate Bench in an identical case has held thus:-

"5. This argument has substance and it discloses non- application of mind by the externing authority for externing the petitioner from the districts mentioned aforesaid. When even the externing authority chooses to direct externment from not only the district within which the person against whom the order is passed is seen to be active, but also from contiguous districts, the reason why such externment order should operate even in regard to such contiguous districts should be shown in the notice preceding the order as well as in the order. It must be so, for if a person confined his activities to a particular district there would be no justification to extern him not only from that district,

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but from the adjoining district also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice as well as in the impugned order, it is not for the court to fill up lacuna in the material noticed by the externing authority by assuming that there must be some reason for externing from contiguous district also. That must be indicated by the externing authority. For this full bench decision in Sandhi Mamad Kala v. State of Gujarat 14 G.L.R. 384 and Saiyad Husen Saiyad Umar vs. State of Gujarat,1985 (2) G.L.R. 1045 can be referred.

6. Per contra, learned APP submits that the competent authority has passed the impugned order after considering all the relevant materials and statement of witnesses as well as the fact that the petitioner is involved in other criminal offences, so as to demonstrate that there is likelihood of breach of peace in the area and therefore, the learned APP supported the impugned order and urged to dismiss the petition.

7. The externing authority under Section 56 of the Bombay Police Act has power to remove or extern a person not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to his own district. The criteria for passing such an order is provided for in Section 56 and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority that it was necessary not only to extern a person from his own district but also from the contiguous district. Such circumstances must be qua every area or region from which a person is directed to be externed and there must be some material or indication of such material in the order. The case of Vrajlal Mohanlal v. District Magistrate, Rajkot and another, reported in 3 G.L.R. 807 can be referred on the point."

8. 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

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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 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."

9. The conspectus of the aforesaid decision would reveal that the respondent authorities, while exercising power under the provision of the 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

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subjective satisfaction is required to be based on concrete and specific details and not on vague statements or material.

10. At this stage, it would be apposite to refer to the observations made by this Court in the case of Hemant Ramsingh Pardeshi (supra), whereby this Court, while dealing with the analogous issue has held thus:-

"13. The facts of the present case are very similar. The facts of the present case project the nonapplication of mind of the externing authority more sharply. The externing authority has recorded in the order of externment in unequivocal terms that the offences have been registered after the notice was issued. Reliance is placed on statements of witnesses for arriving at a subjective satisfaction that they are not prepared to depose in public against the petitioner out of fear from him and therefore, while passing the order, the authority ought to have considered that, if this fear was correct and genuine, the offences would not have been registered against the petitioner. The order of externment therefore, is bad on this count also, as has been held by the Division Bench of this Court in the case of Sudhir Makanji Kahar [supra]"

11. The Coordinate Bench of this Court, after placing reliance on the order of the Division Bench in the case of Sudhir Makanji Kahar v/s Deputy Commissioner of Police, 1991[2] GLH UJ 24 has observed while passing the order, the authority ought to have considered that, if this fear was correct and genuine, the offences would not have been registered against the petitioner. Thus, in case a witness, on whose statement a person is sought to be externed, is not prepared to depose in public and expresses fear from such person, then the element of fear so expressed by the witness will pale into insignificance, if it is found that an offence is registered against

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such person. In the present case, as per the facts recorded by the respondent authorities in the impugned orders reveal that the offences, as mentioned hereinabove under the provisions of the IPC are already registered against the petitioner. If that is the case of the respondent authorities, the factum of expressing fear by the witnesses in deposing in public, whose statements are recorded in the impugned orders, is required to be ignored. Thus, the impugned orders suffer from non- application of mind by the respondents in this regard.

12. 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 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 :-

R/SCR.A/613/2022 ORDER DATED: 05/09/2022

"........ 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 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."

R/SCR.A/613/2022 ORDER DATED: 05/09/2022

13. 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.

14. In the present case, the impugned orders are premised only on the statements of 8 witnesses, which also lack specific details and are vague in nature. The Registration of the four

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FIRs against the petitioner is also placed reliance two offences pertain to prohibition and other two offences referred in the impugned orders (i) under Sections 143, 147, 149, 294(B), 506(1) of the IPC and (ii) under Section 323, 294(B) and 506(2) of the IPC and Section 135(1) of the G.P.Act. Hence, the petitioner cannot be said to be a dangerous person, who would enhance and provoke the anti-social activities. It is also not in dispute that the statement was not supplied to the petitioner and hence, the petitioner had not got appropriate opportunity to make effective defence and hence, the impugned orders are required to be quashed and set aside.

15. On the substratum of the aforenoted observations, the impugned externment orders passed by the respondent authorities are herewith quashed and set aside. The present writ petition stands allowed. Rule made absolute.

Direct service is permitted.

(A. S. SUPEHIA, J) MAHESH BHATI/126