Gujarat High Court
Mukesh @ Munna Lunsibhai Kher vs State Of Gujarat & 3 on 7 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3297/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (AGAINST ORDER OF EXTERNMENT)
NO. 3297 of 2014
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MUKESH @ MUNNA LUNSIBHAI KHER....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
MR.K.P.RAVAL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/01/2015
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner an externee calls in question the legality and validity of the order dated 3.07.2014 passed by the Joint Secretary Home Department in Exterment Appeal No.139 of 2014 by which the Appellate Authority, in exercise of power under Section 16 of Bombay Police Act, has partly allowed the appeal and modified the order of externment dated 29.03.2014 passed by the Sub Divisional Magistrate, Talaja.
2. It appears that vide a show-cause notice dated 03.12.2013, the petitioner was called upon to show-cause as to why he should not be externed from the territorial limits of Bhavnagar, Amreli, Botad, Rajkot, Surendranagar, Ahmedabad City and Ahmedabad Rural Districts. The foundation for issuance of such notice was that two cases are registered against the petitioner (i) being C.R.No.I-42/11 dated 22.08.2011 of the offence punishable under Sections 323, 325, 504, 506(2), 452, 427, 447, 147, 148 of Indian Penal Code and Page 1 of 4 R/SCR.A/3297/2014 ORDER Sections 3(1), 10, 3(2) 5, 149 of the Atrocity Act and Section 135 of the Gujarat Police Act and (ii) being C.R.No.I-30/2013 dated 16.06.2013 of the offence punishable under Sections 394, 324, 325, 427, 147, 148, 149, 506(20) of the Indian Penal Code and Sections 3(1) 10 and 3(2) 5 of the Atrocity Act and Section 135 of the Gujarat Police Act. Finally the authority passed the order of externment in exercise of his power under Section 56(a) of the Bombay Police Act and ordered externment of the petitioner from the districts noted above.
3. In appeal, which was partly allowed, the Appellate Authority restricted the order of externment to the extent of Bhavnagar district and Bhavnagar rural only for a period of one year.
4. Ms.Himani Kini, learned advocate appearing on behalf of the petitioner vehemently submitted that the impugned order under challenge suffers from a serious infirmity and deserves to be quashed.
5. On the other hand, this application has been opposed by Mr.K.P.Raval, learned APP appearing on behalf of the State. The learned APP submitted that no error not to speak of any error of law is committed by the authority in passing the order of the externment.
6. Having heard the learned advocates for the respective parties and having gone through the material on record the only question that falls for my consideration is whether the authority committed any error in passing the impugned externment order.
7. As noted above, the two cases for the offence under the Indian Penal Code have been registered against the petitioner, and on the Page 2 of 4 R/SCR.A/3297/2014 ORDER basis of the same, the authorities have reached to the conclusion that the activities of the petitioner are likely to cause prejudice to the maintenance of public order. However, no reference of the area or locality and the period of the alleged activities of the externee are stated.
8. In my view, the show-cause notice is vague so far as the area and the period during which the said objectional criminal activities were carried on by the petitioner. I am supported by a Division Bench decision of this Court in the case of Vikram Maya Maiya versus State of Gujarat and Anr. reported in 1991 (2) GLR 1210, wherein the Division Bench made the following observation in Para No.7:
"7. Now examining the contents of the notice, in its entirity has been set out in para 2 of this judgment, the same leaves no room for any doubt in our mind that the notice is as vague as it could be so far as the area and the period during which the said objectional criminal activities were carried on by the petitioner. It is by now well settled that before the proposed externee can be said to have been given a reasonable opportunity to tender explanation of material allegations of general nature, have to be pointed out to him. As seen in the present case, the allegations in the show cause notice are totally vague. The said notice does not contain even a whisper regarding the period during which and the area in which the petitioner is alleged to have indulged in committing objectionable criminal activities. This infirmity by itself is fatal to invalidate the externment order. This High Court in the case of Kathi Harsur Rukhad v. State of Gujarat & Anr., reported in 1986 (1) GLR 682, was called upon to deal with the similar question on practically similar facts as arisen in the present case. In the said case, relying upon Supreme Court decision in the case of State of Gujarat v. Mehbubkhan, AIR 1968 SC 1468, it has been held that the externee was not given any reasonable opportunity to put forward his defence as the impugned show cause notice was vague enough not to indicate the area and period during which the externee indulged in objectionable activities. It was further observed that - "It is obvious that even though notice issued under Sec. 59 is to refer to allegations of general nature containing material particulars, at least such allegations in order to meet the requirement of the law, must indicate the area or locality where such alleged activities were said to have been committed by the proposed externee and the allegations should also indicate as to during Page 3 of 4 R/SCR.A/3297/2014 ORDER what period, he did it so that his defence about alibi if at all can be reasonably put forward for consideration of the externing authority." The aforesaid decision squarely covers the point raised by Mr. Bharat Dave, learned Advocate for the petitioner. Accordingly, it is got to be held that the show cause notice issued under Sec.59 of the Bombay Police Act being vague, the petitioner was denied a fair and reasonable opportunity of defending his case by tendering appropriate explanation by way of defence. This infirmity in the notice is fatal enough to invalidate the order of externment."
9. In view of the above, this Court is left with no other option but to set aside the order of the externment. In the result, this petition is allowed. The impugned order passed by the authority is hereby ordered to be quashed. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) dharmendra Page 4 of 4