Gujarat High Court
Meghrajbhai Ramkubhai Khachar vs Sub Divisional Magistrate Botad on 3 January, 2024
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R/SCR.A/3278/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (AGAINST ORDER OF
EXTERNMENT) NO. 3278 of 2023
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MEGHRAJBHAI RAMKUBHAI KHACHAR
Versus
SUB DIVISIONAL MAGISTRATE BOTAD
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Appearance:
MR AMRISH S BAROT(3551) for the Applicant(s) No. 1
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 1,2
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 03/01/2024
ORAL ORDER
1. By filing the present petition under Article 226 of the Constitution of
India, the petitioner has prayed for the following reliefs:
(A) Admit this Special criminal Application.
(B) Allow this special criminal application by quashing and setting
aside the order of Externment passed by the Ld. Sub Divisional
magistrate Botad Dated 23.06.2022 being numbered as
RB/HDP/27/2022 as well as the appellant authority order dated
09.01.2023 confirming the order dated 23.06.2022.
(C) Grant ad interim relief in terms of para (B) above.
(D) Grant such other and further relief(s) as are deemed fit in the
interest of justice.
2. The facts and circumstances giving rise to the filing of the present
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petition are such that vide order dated 23.6.2022 passed by the learned Sub
Divisional Magistrate, Botad (hereinafter referred to as 'SDM') the petitioner
has been externed from the territory of districts Botad, Bhavnagar, Amreli,
Rajkot, Surendranagar and Ahmedabad for a period of two years from the date
of order.
2.1 Being aggrieved by the said order the petitioner had preferred an appeal
under Section 60 of the Bombay Police Act before the State Government. The
said appeal filed by the petitioner came to be dismissed by the Additional
Secretary (Law and Order) vide order dated 9.1.2023.
2.1.1 Being aggrieved by and dissatisfied with the same, the petitioner has
preferred the present petition.
3. Heard learned Advocate Mr. Pawan A. Barot for the petitioner. He
submitted that the concerned authorities have not applied their minds to the
facts of the case before passing the impugned order. As per the settled legal
position, the concerned authorities were required to record subjective
satisfaction that the activities of the present petitioner were injurious to the
public at large and such subjective satisfaction was required to be arrived at by
the concerned authorities on the basis of objective material. There is no
objective material before the concerned authorities to arrive at a subjective
satisfaction as mentioned herein before. The only material which has been
considered by the concerned authorities is the effect that there are two offences
registered against the present petitioner at Barvala and Paliad Police Stations of
the Botad district. Except this no other material was available before the
concerned authorities. Out of the aforesaid offences, one offence was
registered against the present petitioner in the year 2020. Thus, the offence
which was registered against the petitioner two years prior to the date of the
order, has been taken into consideration. He therefore submitted to allow the
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present petition and quash and set aside the impugned orders.
4. The petition is opposed by learned APP Ms. Maithili Mehta inter alia
contending that there were two offences registered against the present
petitioner, out of which one offence was punishable under Section 302 of the
Indian Penal Code whereas in the other offence, the Applicant had interrupted
the government officials who were performing their duties while present
petitioner was found to be illegally mining the minerals from the land
belonging to the government. The applicant had also threatened the
government officials of dire consequences. Thus, the concerned authorities
have rightly arrived at a subjective satisfaction to the effect that the activities
carried out by the present petitioner were injurious to the public at large. She
therefore submitted that this court may not interfere with the findings recorded
by the concerned authorities and therefore the application may be dismissed.
5. Heard learned Advocates for the parties and perused the record.
6. The SDM had passed an order externing the present petitioner from the
territories of the districts of Botad, Bhavnagar, Amreli, Rajkot, Surendranagar
and Ahmedabad in exercise of his powers under Section 56 of the Gujarat
Police Act (hereinafter referred to as "the GP Act"). Section 56 of the GP Act
empowers the SDM to extern a person from the local limits of his jurisdiction
or such area and any district or districts or any part thereof, contiguous thereof
in the following circumstances:
"(a) that the movements or acts of any person are causing or
calculated to cause alarm, danger or harm to person property, or
(b) that there are reasonable grounds for believing that such person
is engaged or is about to be engaged in the commission of an offence
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involving force or violence or an offence punishable under Chapter XII,
XVI or XVI or XVII the Indian Penal Code, or in the abetment of any
such offence, and when in the opinion of such officer witnesses are not
willing to come forward to give evidence in public against such person
by reason of apprehension on their part as regard the safety of their
person or property, or
(c) that an out break epidemic diseases is likely to result from the
continued residence of an immigrant, ....."
7. Upon perusal of the order passed by the SDM, it appears that what has
weighed with the concerned authority is the fact of registration of two offences
against the present petitioner, out of which one offence was registered against
him at Barvala Police Station for offence punishable under Sections 143, 147,
148, 149, 34, 302, 504, 506(2) of the Indian Penal Code (for short 'IPC'),
Sections 25(1)(A) and 25(1)(B) of the Arms Act and Section 135 of the GP
Act. On the basis of the said offence, it is observed by the SDM that the
Applicant is believed to be committing offence relating to human body and
threatening and thus the petitioner is creating an atmosphere of fear among the
localites. The other offences which are registered against the present petitioner
are pertaining to Sections 379, 506(2), 504, 186 and 114 of the IPC and
Sections 3 and 12 of the Gujarat Mineral (Prevention of Illegal Mining,
Transportation and Storage) Rules, 2017 and Section 4(1), 4(1A) and 21 of the
MMDR Act. On the basis of the said offence, the SDM has recorded that the
present petitioner appears to be creating obstruction for the officials of the
Mines and Minerals Department from performing their duties, and thus, he is
creating an atmosphere of fear and danger among the public. It is also recorded
by the SDM that if the activities of petitioner are not curbed, such other
elements would become uncontrollable. The SDM further records that the
witnesses are not willing to come forward to give their statements because of
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the fear which has been created by the petitioner in the area.
8. So far as the offences registered against the present petitioner are
concerned, the concerned authority has taken into consideration one offence
which was registered against the petitioner in the year 2020 i.e. two years prior
to the date of the order in question. The offence registered against the
petitioner two years prior to the initiation of the process for passing the order
for externment would hardly be of any relevance. If the said offence had really
necessitated passing of the order under Section 56, the authority concerned
ought not to have waited for 2 years for passing the said order. The other
offence which is registered against the petitioner is about theft of the mineral
produce and threatening the officers of the Mines and Mineral Department. It
appears that there was some dispute between the petitioner and the department
concerned about payment of royalty which had resulted in the incident. Thus,
this offence would hardly be of any relevance for the authority to arrive at a
subjective satisfaction for passing the order of externment against the
petitioner.
9. The SDM has recorded in its order that the witnesses are not willing to
come forward to give their complaints because of the fear created by the
present petitioner in the area. It is not clear from the material available on
record as to whether the statements of those secret witnesses were recorded
and, if such statements were recorded by the authorities, no such statements are
produced on record for perusal of this court. In the absence of any such
statements available on record, it is difficult for this court to uphold the
findings recorded by the SDM in this regard.
10. The SDM has ordered to extern the petitioner from the areas of the
districts of Botad, Bhavnagar, Amreli, Rajkot, Surendranagar and Ahmedabad
whereas the offences registered against the petitioner are only in the district of
Botad. It is not clear from the order impugned as to what has weighed with the
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SDM for passing the order externing the petitioner from the districts other than
Botad. It is also required to be noted at this stage that while issuing rule in the
present matter, this court had granted interim relief to the petitioner by staying
the order of externment so far as it relates to the districts of Ahmedabad,
Amreli, Bhavnagar, Surendranagar and Rajkot. No untoward incident has been
registered in those districts after the said order was passed by this court on 17 th
March, 2023.
11. The appellate authority vide its order dated 9.1.2023 has merely
reproduced what has been recorded by the SDM in its order. There appears no
independent application of mind by the concerned appellate authority.
11.1 The Hon'ble Apex Court in its recent judgment in case of Deepak S/o
Laxman Dongre v. State of Maharashtra, reported in AIR 2022 SC 1241 in para
7 has observed as under:
"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 with 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
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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)."
12. Upon perusal of the entire record, this court is of the view that there was
no objective material before the concerned authority on the basis of which it
could have arrived at subjective satisfaction to the effect that the activities of
the petitioner were injurious to the people of the area. Hence, the impugned
order of externment passed by the Sub Divisional Magistrate Botad dated
23.06.2022 being numbered as RB/HDP/27/2022 as well as the appellant
authority order dated 09.01.2023 confirming the order dated 23.06.2022 are
hereby quashed and set aside. Rule is made absolute.
(M. R. MENGDEY,J)
J.N.W / 45
