Gujarat High Court
Ashokbhai Zinabhai Rana vs State Of Gujarat And Anr. on 12 November, 1986
Equivalent citations: (1987)2GLR719
Author: G.T. Nanavati
Bench: G.T. Nanavati
JUDGMENT P.R. Gokulakrishnan, C.J.
1. All these three Special Criminal Applications pose a common question as regards the power of appellate authority under Section 60 of the Bombay Police Act, 1951 (Bombay Act No. XXII of 1951) to remand the matter back to the exteming authority for issuing fresh notice incorporating the places or the period during which the activities have taken place.
2. In all these cases, it was alleged that the area of the acts committed by the externee and/or the period during which such acts were committed were not given in the notice issued under Section 59 of the Bombay Police Act, 1951. In short, it was the case of the externee that the notice issued under Section 59 is vague and as such, no externment order can be sustained on such type of vague notices. It has been held by our High Court and by the Supreme Court that failure to give the area of the operation or the period of such acts committed by the externee will be fatal to the externment order and on that basis, various externment orders have been quashed vide State of Gujarat v. Mehbubkhan AIR 1968 SC 1468; Kathi Harsur Rukhad v. State of Gujarat ; and Babu Kishan Kahar v. Dy. Commissioner of Police, Vadodara and Anr. 1986 (1) GLR Vol. XXVII (1) page 553. In view of this settled legal position, the appellate authority set aside the externment orders and remanded the matters to the externing authority for issuing fresh notices.
3. The main question that is agitated in all these petitions is that the appellate authority has no power to remand the matter as stated above. Mr. Kapadia and Mr. Marshall, the learned Counsels appearing for the petitioners in all these matters, strenuously contended that unless there is a power vested with the authority concerned under Section 60, the order of remand cannot be sustained and as such, such order has to be quashed. It is further contended by the respective Counsel that the externing authority has to form the subjective satisfaction before it passes the externment order and as such, the appellate authority cannot substitute itself and remand the matter directing the externing authority to issue a fresh notice after incorporating in the said notice the period and/or the place during which the acts have taken place. It is further contended that Sections 55 to 60 have to be read together and if that be so, we cannot infer the power of remand with the appellate authority constituted under Section 60 of the Bombay Police Act. Section 56 of the Act deals with circumstances under which a person has to be externed. Section 59 contemplates hearing to be given to the persons to be externed, before an order under Sections 55, 56 or 57 is passed. Section 60 invests the appellate power with the State Government over an order of externment passed by the authorities concerned. Section 60 reads as follows:
60. (1) Any person aggrieved by an order made under Sections 55, 56 or 57 may appeal to the State Government within thirty days from the date of such order.
(2) An appeal under this section shall be preferred in duplicate in the form of a memorandum, setting forth concisely the grounds of objection to the order appealed against, and shall be accompanied by that order or a certified copy thereof.
(3) On receipt of such appeal, the State Governmeni may, after giving a reasonable opportunity to the appellant to be heard either personally or by a pleader, advocate or attorney and after such further inquiry, it any as it may deem necessary, confirm, vary or cancel or set aside the order appealed against, and make its order accordingly:
Provided that the order appealed against shall remain in force pending the disposal of the appeal unless the State Governmeni otherwise directs.
(4) In calculating the period of thirty days provided for an appeal under this section, the time taken for granting a certified copy of the order appealed against, shall be excluded.
4. In Section 60, Sub-section (3), the power of the appellate authority is limited either to "confirm, vary or cancel or set aside the order appealed against". Mr. G.D. Bhatt, the learned Counsel appearing for the State, first contended that the word 'vary' may be interpreted in such a way as to include the 'power of remand' with the appellate authority also. We are afraid we cannot accept this interpretation sought to be put forth by the learned Counsel appearing for the State. Considering the Dictionary meaning of the word "vary" in the context of the present enactment (Bombay Police Act), we can usefully interpret the word "vary" to mean "alter or embellish preserving its identity". Hence the original order has to stand and it is open to the appellate authority either to alter its original order, embellish it or preserve it by keeping its identity intact.
5. Mr. G.D. Bhatt next contended that from the words "set aside", we can infer the power of the appellate authority 'to remand the matter' as it has done in these cases. Mr. Kapadia and Mr. Marshall, the learned Counsels appearing for the petitioners, contended that the words "set aside" will mean that the appellate authority can either quash a portion of the order or modify the order already passed by the exteming authority. For example, if the externing authority has externed a particular person from a particular area, the appellate authority, instead of externing such a person, can insist upon a bond to be taken. We can in this connection add another power to the appellate authority by interpreting the words "set aside" by stating that if the externing authority has externed a particular person from the area in which he has operated and also from the contiguous area for a period mentioned therein, the appellate authority either "set aside" 'a portion of the order' either in respect of the area in which a person has been externed or reduce the period for which the externment order was passed. No doubt such order that will be passed by the appellate authority may amount to "vary" to certain extent; but, at the same time, it may also include 'setting aside' a "portion of the order' passed by the externing authority. Whatever it may be, unless there is a specific power 'to remand', these powers envisaged by Section 60(3) cannot include 'the power to remand'.
6. The Bombay Police Act vests certain powers with the administrative wing of the Executive of the Government. In that sphere, the Act is being administered by the specific authorities mentioned in the said Act. While administering this Act, which is in the nature of preventive action, whereby the liberty of the person is curtailed by a validly enacted piece of legislation, such as Bombay Police Act, 1951, the powers vested with the authorities concerned have to be strictly construed and we cannot infer certain power which is not specifically vested with the authority concerned. In view of our interpretation of the words "vary" and "set aside" occurring in Section 60(3), we are of the view that the 'power of remand' cannot either be inferred or said to be conferred by the provisions of Section 60(3), on appellate authority. If that be so, 'the order of remand' with a direction mentioned in such orders made by the appellate authority under Section 60 of the Bombay Police Act cannot be sustained.
7. For all these reasons, the portion of the order of the appellate authority by which the remand is made with a direction is set aside.
8. In these circumstances, these Special Criminal Applications are allowed. Rule is made absolute accordingly in each petition. In view of this order, no orders are necessary in the Miscellaneous Criminal Application No. 2230 of 1986 in Special Criminal Application No. 885 of 1986. Hence Miscellaneous Criminal Application No. 2230 of 1986 is disposed of.