Vijaybir Alias Abbal Dada Devisinh Rajput Vs. I.S. Shethi, Police Superintendent, 'C' Division and Ors. (17.01.1986 - GUJHC) - Court Judgment

P.R. Gokulakrishnan, C.J.

1. The petitioner has come forward with the present Special Criminal Application to quash the notice issued for externment, which is Annexure 'A' to the petition, the order passed by the externing authority externing the petitioner, which is Annexure 'B' to the petition and the order passed in appeal confirming the externment order which is Annexure 'C' to the petition. The petitioner has been externed from the area under the jurisdiction of Ahmedabad Police Commissioner and its contiguous Ahmedabad Rural, Gandhinagar, Kheda and Mehsana Districts for a period of two years. The Superintendent of Police, 'C Division, Ahmedabad City issued notice under Section 59 of the Bombay Police Act regarding externment of the petitioner under Section 56(b) of the said Act stating that the petitioner is a dangerous and a fierce person and commits acts of force at Saraspur Potalia Talav, Dhabavali Chawl's corner, near Anil Starch Mill, Corner of Vire Bhagat's Chawl, Corner of Manilal Kadia's Chawl, near Mancha's Masjid, near Urinal, near the Gate of Saraspur 'E' Colony Garden, Opposite Mancha's Masjid, near No. 'D' 17 of the Insurance Corporation Dispensary, Corner of Saraspur Rang-Shala Compound, Corner of Annapurna Society, backside of Nutan Mill Bombay Housing and near Swimming Pool, Saraspur Potalia Talav, which are all under the limit of Shaher Kotada Police Station. It is further stated in the notice that such type of fierce activities are being perpetrated by the petitioner from June 1983 in the above said areas. The notice further states that the petitioner is robbing money from the people residing in the aforesaid areas and from the innocent people passing through the said areas by showing Rampuri Knife or Razor or by beating them by giving fist or kick blows or giving them threat of violence. It is further stated that he used to beat the innocent people passing through that area on the suspicion that either they are giving information to the Police about the petitioner's illegal business of liquor or they are informant of the Police. Alleging the above said acts of the petitioner, the notice further states that the witnesses to the aforesaid acts are not willing to come forward to give evidence openly as they apprehend threat to their life and property. With the above said allegations, the notice mentions that the authorities are intending to extern the petitioner for a period of two years from the area which is under the jurisdiction of the Ahmedabad City Police Commissioner and its adjoining areas of Ahmedabad Rural, Gandhinagar, Kheda and Mehsana Districts, further stating that if the petitioner is not externed from these areas, it is possible that the petitioner is likely to continue his violent activities through his associates and agents. The notice directed the petitioner to be present before the authority concerned at 4-00 P.M. on 13-8-1984 for explaining the allegations levelled against him. The petitioner examined as many as 24 witnesses before the Police Superintendent, 'C Division, Ahmedabad City and the Deputy Commissioner, Traffic Branch, Ahmedabad City, after hearing the advocate for the Petitioner, passed the externment order under Section 56(b) of the Bombay Police Act, 1951 externing the petitioner from the areas mentioned in the notice for a period of two years from the date of order, i.e. 8th May, 1985. As against this order of externment, the petitioner preferred an appeal to the Government under Section 60 of the Bombay Police Act and the Deputy Secretary, Home Department, Gujarat Government, confirmed the order of externment passed by the Deputy Commissioner of Police under Section 60(3) of the Act. It is to quash the notice, the externment order and the appellate order referred above that the present Special Criminal Application is filed.

2. Mr. Shethna, the learned Counsel appearing for the petitioner, took as many as 13 points in order to quash the order of externment. Finally, the learned Counsel filed a draft amendment questioning the vires of 56 and 59 of the Bombay Police Act. We have today allowed the said amendment and thought it fit that no notice is necessary to be issued to the Advocate General in this matter in as much as this question has been fully discussed and decided by our Full Bench in the case of Sarjubhaiya v. Dy. Commissioner of Police reported in XXV(i) 1984(1) G.L.R. 538. The Full Bench in that case, following a series of decisions of the Supreme Court, held that the challenge vires of Sections 56 and 59 of the Bombay Police Act would not be permissible in the High Court in view of the matter having been considered by the Supreme Court on earlier occasion, as a result of which consideration, the sections have been held to be valid. In view of the above said Full Bench decision, the contention of the learned Counsel regarding the vires of Sections 56 and 59 as ultra vires the Constitution cannot be sustained. That is the reason why we have not acceded to the request of Mr. Bhatt, Learned Additional Public Prosecutor, who wanted time to put in reply for the said amendment prayed for.

3. As far as the present externment order is concerned the notice calling for explanation amply sets out the activity of the petitioner. His area of operation and the period of operation. The authority, who gave the- notice, gave full opportunity to the petitioner who examined 24 witnesses to spell out that he is not such a dangerous and desperate person in that locality. The externing authority, who is the Deputy Commissioner of Police, after taking into consideration the materials on record and after according facility to the counsel for the petitioner to submit his arguments, externed the petitioner as referred in paragraph supra. Thus, it is clear the authorities concerned have followed regular procedure after giving valid notice with the requisite particulars. Nevertheless, the learned Counsel has raised various grounds which we will deal with seriatim hereunder.

4. The first ground mentioned by Mr. Shethna is that the show cause notice was issued by the Superintendent of Police and that he has no jurisdiction to issue the notice. We have already extracted the particulars mentioned in the said notice. Section 10(2) of the Bombay Police Act states:

10(2). Every such Deputy or Assistant Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special orders of the State Government made in this behalf:

Provided that the powers to be exercised by the Commissioners (of making, altering or rescinding rules under Section 33) shall not be exercisable by a Deputy or Assistant Commissioner.

The Deputy Commissioner here has been invested with powers to exercise the powers of the Commissioner. Thus, it is clear the Deputy Commissioners have power such as the Commissioner for the purpose of acting under the Bombay Police Act in cases of externment. Section 59 visualises the issue of show cause notice. It is stated therein that such a notice can be issued by the Officer acting under any of the said Sections 55, 56 or 57 or any Officer above the rank of the Inspector authorised by that Officer to issue the notice calling for explanation. The Deputy Commissioner of police as per Section 10(2) is a person authorised to issue notice. In this case, the Deputy Commissioner of Police is the externing authority and under his direction the Superintendent of Police has issued the show cause notice under Section 59. Hence it is futile on the part of Mr. Shethna to contend that the notice issued by the Superintendent of Police is vitiated in as much as the Deputy Commissioner could not have authorised the Superintendent of Police to issue the notice and it is the Commissioner who alone can authorise the Superintendent of Police for issuing such notice. Reading Section 10(2) and Section 59 of the Act, it is clear that the notice issued by the Superintendent of Police is in order and it is not vitiated because of the fact that the same is issued by the Superintendent of Police under the instruction of the Deputy Commissioner of Police, who enjoys the powers of the Commissioner by proper authority given to him under Section 10(2) of the Act.

The second contention raised by Mr. Shethna is that assuming that respondent No. 2 has power to authorise the Superintendent of Police to issue notice, the entire proceeding having been conducted by the Superintendent of Police, the order passed by the 2nd respondent exteming the petitioner is vitiated since there is violation of the principles of natural justice. It is the case of Mr. Shethna that the 2nd respondent who has not heard the witnesses produced by the petitioner cannot pass orders externing the petitioner. We are not able to appreciate this argument since the 2nd respondent, who is the Deputy Commissioner of Police, after perusing ail the materials on record, including the evidence given on behalf of the petitioner, accorded opportunity to the counsel for the petitioner to submit his arguments and then only the impugned order of externment was passed. There is nothing wrong procedurally nor any failure of natural justice involved in this case to vitiate the order of externment passed by the 2nd respondent herein. Hence this contention of Mr. Shethna also fails.

5. Mr. Shethna next contended that he has alleged mala fides against one head constable, three police constables and one Police Sub Inspector and has also stated that due to the mala fide intention the petitioner was externed as a counter-blast to the complaints he has preferred against these police officials of a particular Station. The complaints, according to the petitioner, were given by him against them as early as 1982. This has been elaborated in ground (B) of the grounds of the petition filed by the petitioner herein. The Government in reply to ground (B), which is paragraph 14 of its reply, has stated that the ground of mala fide alleged has no substance and the same is vague. It is further stated that the petitioner was not victimised because of the alleged complaint given by the petitioner and that the impugned notice was not issued to pressurise the petitioner to withdraw his complaint against the police personnel. It is clearly seen from the facts of the case that the complaint is of the year 1982 and that too against a head constable, three police constables and a Sub Inspector. It is too much to state that the Superintendent of Police and the Deputy Commissioner of Police, who are all high ranking Police Officials, got prejudiced because of the alleged complaint filed against inferior Officers of that Department, that too as early as 1982. The question of mala fides requires stronger proof and as it is we do not find any merits in such allegations put forth by the petitioner herein. Consequently, the allegation of mala fides in issuing the show cause notice and subsequent externment order fails.

6. Mr. Shethna next contended that in the show cause notice except stating that the activities were carried on from 1983 June, particulars regarding the actual time of offence on these days have not been given. This will definitely vitiate the show cause notice since if such timings are given, the petitioner would have easily substantiated his defence to the effect that during the relevant time, he was working in Arvind Mill. In the decision reported in State of Gujarat v. Mehbubkhan reported in AIR 1968 SC 1468, the Supreme Court had occasion to consider the necessary particulars regarding the period of offence that has to be given in such order of externment and held that the notices referring periods during which the acts are stated to have been committed as well as the area where they are said to have been committed is enough. We can usefully refer paragraph 20 of the Supreme Court Judgment reported in AIR 1968 SC 1468 (supra) hereunder:

In the instant case, the learned judges of the Gujarat High Court accept the position that under Section 59, of the Act, the notice should inform the person, in writing of the general nature of the material allegations against him, and it need not contain particulars. But they have held that the allegations, regarding the two respondents, consuming eatables, from places of public entertainment, without payment, and beating persons, when legal dues were demanded, contained in the two notices, are vague. The reasoning of the learned Judges that the said allegation should have contained all the particular places of public entertainment, or what particular establishment the respondents were supposed to have visited, is not warranted, by the provisions of Section 59. In fact, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is not entitled to be supplied with particulars of the allegations made against him. We are therefore not inclined to accept the above reasoning of the Gujarat High Court. The notices, refer to the periods during which the acts are stated to have been committed, as well as the area where they are said to have been committed. No doubt, the expression 'place of public entertainment', is defined in Section 2(10) of the Act; but the mere fact that the said definition takes in various types of places, does not militate against the allegation No. 1 in Special Criminal Application No. 3 of 1965, or allegation No. 3, in the connected application, being of a general nature of the material allegations as contemplated under Section 59. Without attempting to be exhaustive, we may state that when a person is stated to be a 'thief that allegation is vague. Again, when it is said that 'A' stole a watch from X on a particular day and at a particular place the allegation can be said to be particular. Again, when it is stated that 'X' is seen at crowded bus stands and he picks pockets' it is of a general nature of a material allegation. Under the last illustration, given above will come the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a notice, under Section 59, he can only give an a explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents. In our opinion, contain the general nature of the material allegations made against each of them, in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore, it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained. The orders of the Gujarat High Court are, accordingly, set aside, and these criminal appeals allowed. But, we may make it again clear, the in spite of our decision, in favour of the appellants, no action can be taken against the respondents, in these appeals on the basis of the orders, which are now held to be valid.

The above said decision is an authority for stating that it is enough that the period of offence is given in the externment order or the notice concerned and it is not necessary to give the particular time at which such offences are committed. Hence this contention of Mr. Shethna cannot be countenanced in view of the decision reported in AIR 1968 SC 1468 (supra).

7. The next contention raised by Mr. Shethna is that in the notice that the witnesses are not coming forward to depose is a false statement since number of witnesses have come forward to depose in favour of the petitioner before the Superintendent of Police who issued the show cause notice. The fact that the petitioner has examined 24 witnesses does not mean that the witnesses against whom offences have been committed by the petitioner are also willing to depose against the petitioner herein. The Externing Authority got itself satisfied that the witnesses are not willing to depose against the petitioner due to the fear of their person and property. Mr. Shethna also referred to a stray incident of the year 1983 where a complaint was given against the petitioner herein and on that basis he was prosecuted and ultimately acquitted. Such stray instances will not in any way militate against the averment that the witnesses are not willing to depose against the petitioner herein. Hence there is absolutely no substance in the said argument of Mr. Shethna.

8. The next contention raised by Mr. Shethna is that there is absolutely nothing to show that the petitioner will carry on his unlawful activity in the contiguous Districts. In the externment order it is mentioned that if the petitioner is not externed from the contiguous Districts, he will carry on such type of illegal activities with his associates. This is purely a subjective satisfaction of the authorities concerned and the externing authority, after perusing the materials on record and adverting to the activities of the petitioner herein, thought it fit that he has to be externed even from the contiguous Districts. Such a subjective satisfaction arrived at by the externing authority, after applying its mind to the materials on record, cannot be interfered with at the writ jurisdiction stage.

9. Mr. Shethna next contended that in spite of the fact that 24 witnesses were examined by the petitioner, no reason was given by the externing authority for disbelieving these witnesses. In the case of Sarjubhaiya v. Dy. Commir. of Police XXV(1) 1984(1) GLR 538 a Full Bench of our High Court referring to the decision in Pandharinath v. State of Maharashtra : 1973CriLJ612 which examined the provisions of Section 56 of Bombay Police Act quoted the Supreme Court observation wherein it is stated.

Neither the externing authority nor the State Government in appeal can be asked to write reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case it would be easy to fix the identity of witnesses who were unwilling to depose in public against the proposed externee.

This observation of the Supreme Court is an answer to the contention raised by Mr. Shethna. Correctly in this case, the externing authority has not discussed the evidence of the witnesses produced before it by the petitioner concerned.

10. Mr. Shethna next contended that before the authority concerned passed the externment order, it ought to have considered whether a bond could have been taken for good behaviour instead of resorting to this extreme penalty contemplated under Section 56 of the Act. This according to Mr. Shethna, spells out the non-application of the mind by the authorities concerned and the order of externment has been passed mechanically without any application of the mind. We are afraid we are not able to appreciate this argument. The authorities concerned spelt out the nature of the activity indulged in by the petitioner herein in the show cause notice, in the externment order and in the order passed by the Government at the appellate stage. We have already extracted in paragraph supra the nature of the offence committed by the petitioner in various localities and as to how the petitioner is a dangerous and desperate person. The authorities concerned got themselves satisfied that the petitioner should not only be externed from those localities, but also from the contiguous districts of Ahmedabad Rural Gandhinagar, Kheda and Mehsana Districts. This subjective satisfaction itself is enough to resort to the serious punishment and correctly the authorities have externed the petitioner for a period of two years in this case. Mr. Shethna read Section 56 of the Act and contended that the section, after enumerating the offences necessary for externment, states:.by an order in writing 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 seem 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 or such area and any district or districts, or any part thereof, contiguous thereto, by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part thereof as the case may be, from which he was directed to remove himself.

In support of his case, Mr. Shethna referred to the decision in Sukhraj Sahdev Yadav v. State of Gujarat and Ors. reported in XXII 1985 GLT 140. This is a case in which a single Judge of our High Court, dealing with Section 360 read with Section 361 of the Criminal Procedure Code held:

Section 360 of the Code of Criminal Procedure 1973 provides that when any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, the court has to consider whether the convicted person deserves to be released on probation. Section 361 of the Code says that where in any case the Court could have dealt with an accused under Section 360 of the Code or under the provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so. In the present case, it is, therefore, clear that the courts below were bound to consider the question whether the accused who was convicted of the above offences which are punishable with imprisonment for less than seven years deserved to be given the benefit of probation or not. They should have called for the report of the probation officer and considered this question and given special reasons as provided by Section 361 of the Code if they were not inclined to grant the benefit of probation to the accused.

11. Apart from the fact that this decision will not have any bearing to the facts of the present case, it is clear that Section 56 does not visualise that the authorities must first apply their mind for getting the bond from the person concerned and then only resort to pass order of externment. In short it is contended that the authorities concerned must first apply its mind as to whether the petitioner can be let off with a mere bond and that if the authorities thought that it is not enough, then only the order of externment should be passed. Sections 360 and 361 dealt with in the above said judgment have in built directions as to how the accused under the age of 21 has to be dealt with. Such a mandatory direction if not followed, the order of the court will become vitiated. As far as the externment order under Section 56 is concerned, it is not necessary for the authority to first apply its mind as to whether the petitioner can be let off with a bond and then only it can pass the order of externment, if it finds that the offence is of a serious nature. In the wordings extracted above we find the proposition 'or'. This shows that the authority after applying its mind can straight away resort to extern the person concerned. As we have observed already, the nature of the crime committed by the petitioner and the seriousness of the situation made the authorities to extern the petitioner and that too from the contiguous districts also. In these circumstances we are of the view that the order of externment passed in this case is not vitiated and it is unnecessary for the authority to apply first its mind as to whether a bond alone can be taken instead of externing the petitioner concerned on the facts and circumstances of the present case. Mr. Shethna in this connection also cited the decision in Ramniklal Pandit v. C.J. Jose Dy. Section reported in : (1981)GLR797 . This is a case which arose while dealing with Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Dealing with Section 3 of the Act, it is stated by a Bench of our High Court that the authorities concerned should decide as to whether this section has to be invoked on the facts of the case. The scheme of the said Act is completely different when compared to Sections 56 and 59 of the Bombay Police Act. It won't be of any use to discuss this decision for the purpose of interpreting Sections 56 and 59 of the present Act. We are of the view that this decision has absolutely no bearing to the present case on hand.

Mr. Shethna next contended that there is absolutely no allegation of any mis behaviour or illegal activity by the petitioner subsequent to the show cause notice. Mr. Shethna has also alleged that the respondents have not come forward with any reply to the memo of grounds filed in the appeal petition. Both these contentions lack substance. It is unnecessary to allege and prove that subsequent to the show cause notice the petitioner continued with his illegal activities. It is also not necessary to file any reply to the memorandum of grounds taken by the petitioner before the appellate authority under Section 60 of the Bombay Police Act.

12. Mr. Shethna also contended that the appellate order passed by the Government under Section 60 is not a speaking order. In the decision in Sarjubhaiya v. Dy. Comm. of Police reported in XXV(1) 1984(1) G.L.R. 538 (supra), the Full Bench has clearly stated that no such speaking order is necessary while the appellate authority is confirming the order of the externing authority. This view expressed by the Full Bench is in accordance with the views expressed by the Supreme Court in various decisions.

13. Mr. Shethna contended that by mistaken identity the petitioner has been externed while as a matter of fact one Vijaypal is the person who ought to have been externed. The Special Criminal Application filed by the petitioner has not spelt out any ground as to the mistaken identity. Grounds (E) and (N) simply state that the address given is not correct since the petitioner alleges that he has shifted his residence to Kismat Nagar, near Vidya Nagar, Saijpur Bogha. It is not denied that the petitioner is serving in Arvind Mills and the notice was correctly served upon him. In the absence of any allegations anywhere that there is a mistaken identity and that too when it is not taken as a specific ground in the Special Criminal Application, it is too much on the part of the petitioner to allege that he is not the person to be externed and the person concerned is one Vijaypal. On the other hand, the petitioner examined 24 witnesses before the externing authority concerned to show that he is not such a dangerous and desperate person to be externed. The respondents in reply has stated that the contention taken by the petitioner in Ground (N) has no substance. All these factors clearly go to prove that there is absolutely no mistaken identity and such a ground has been stated as an afterthought. Hence we are of the view that there is no substance in the said allegation.

14. Mr. Shethna finally contended that there is delay in passing the externment order and communicating the same to the petitioner. According to the learned Counsel if the petitioner is really a dangerous and desperate person to be externed from the localities concerned, the authorities concerned would have taken speedy action in seeing that the petitioner is externed from the said Districts, it is submitted by Mr. Shethna that the notice was served upon him on 13-8-1984 though it was signed on 9-8-1984. The petitioner was heard on 10-1-1985 and the Advocate of the petitioner was heard by respondent No. 2 herein on 25-2-1985. After hearing the petitioner's advocate as early as on 25-2-1985, the impugned order, according to Mr. Shethna, was passed as late as 8-5-1985. Thus there is a gross delay of nearly three months in passing the said order and that order was served only on 4-9-1985. Simply because the order was served on 4-9-1985, we are of the view that it will not vitiate the proceedings. But as regards the passing of the order after a delay of three months, the respondents have stated that due to disturbed condition in the City of Ahmedabad in the wake of anti-reservation agitation and also riots, the Police Officials were busy in bandobast duty and, therefore, some time was taken in writing, summing up and in passing the externment order. The fact that there were riots during this period cannot be ignored. The petitioner has examined as many as 24 witnesses and argued the matter through a counsel. It is not easy to sum up the evidence of all these witnesses, adverting to the arguments of the petitioner's counsel, within a short space of time. The explanation offered by the respondents to the effect that there were riots and agitation in the City which took the time of the Police Officials who have to pass the externment order cannot be ignored also. Thus, the respondents have given sufficient reason for the delay and we are of the view that such an explanation can be safely accepted on the facts and circumstances of the present case.

Thus, we are convinced that the authorities concerned have proved that the petitioner is a dangerous and desperate person to be externed from not only the area in which he operated, but also from its contiguous districts.

15. For all these reasons, we confirm the order of the externing authority and that of the Government and dismiss this Special Criminal Application.

16 Mr. Shethna, the learned Counsel appearing for the petitioner, makes an oral application under Article 134(1)(c) read with Article 134A of the Constitution for leave to appeal to the Supreme Court of India. The Full Bench of our High Court in the decision in Sarjubhaiya v. Dy. Commi. of Police reported in XXV(1) 1984(1) GLR 538 granted certificate since it felt that the argument advanced in respect of Sections 56 and 59 of the Bombay Police Act regarding the Constitutional validity is a matter to be decided by the Supreme Court. Following the very same reasoning, the leave asked for is granted.

17. Mr. Shethna, the learned Counsel appearing for the petitioner, strenuously contended that the order of externment may be stayed until the Supreme Court is moved in this matter or at least for a period during which the Court furnishes the certified copy of this judgment. We are afraid, we cannot accede to this request as both the authorities have held, on facts, that the petitioner is a dangerous and desperate person and is a menace to the society. Hence this request for grant of stay is also rejected.