Gujarat High Court
Pareshbhai S/O Vallabhbhai Vaghani vs State Of Gujarat on 7 August, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
R/SCR.A/2687/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2687 of 2020
==========================================================
PARESHBHAI S/O VALLABHBHAI VAGHANI
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1
MR P C CHAUDHARI(5770) for the Applicant(s) No. 1
MS. MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 07/08/2020
ORAL ORDER
1. The petitioner has filed the present petition under Article 226 / 227 of the Constitution of India challenging the order dated 09.07.2019 passed by the Additional Commissioner, Surat City as well as the order dated 29.05.2020 passed by the Secretary, Home Department in Appeal No. 17 of 2020.
2. The short facts giving rise to the present petition are that the petitioner was involved in connection with the FIR being IC.R. No. 97 of 2019 registered with Varacha Police Station, Surat City, for the offences punishable under section 307, 323, 504 read with 114 of IPC and Section 135 of G.P. Act. On the basis of said solitary case, the Assistant Police Commissioner 'E' Division Office, Surat City issued a notice on 20.04.2019 under section 56(b) of the Gujarat Page 1 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020 R/SCR.A/2687/2020 ORDER Police Act calling upon the petitioner to show cause as to why the petitioner should not be externed from the Surat City and Surat Rural area for the period of two years. The petitioner having replied to the said show cause notice, the Assistant Police Commissioner passed the order dated 09.07.2019 externing the petitioner from the entire area within the jurisdiction of Police Commissioner, Surat City and the adjoining districts, Surat Rural for the period of two years.
3. Being aggrieved by the said order, the petitioner had preferred an appeal being No. 17 of 2020 before the Secretary, Home Department. The said appeal came to be rejected by the Additional Secretary, Home Department vide the order dated 29.05.2020. The aggrieved petitioner has therefore challenged both the orders before this Court by way of the present petition.
4. Learned advocate for the petitioner has submitted that both the authorities have passed the impugned orders only on the basis of solitary incident. He also submitted that the coaccused involved in the said case has been externed only for a period of three months, whereas the petitioner has been externed for a period of two years on the ground that the order in case of co accused was passed by the Assistant Police Commissioner, 'H' Division, whereas the order in Page 2 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020 R/SCR.A/2687/2020 ORDER the case of the petitioner has been passed by the Assistant Police Commissioner 'E' Division.
5. The learned APP has resisted the present petition by submitting that there being concurrent orders passed by the two authorities, the Court may not interfere with the same. Of course, the learned APP has not been able to justify as to on what basis the Assistant Police Commissioner 'E' Division had passed the order externing the petitioner for a period of two years when the coaccused involved in the same case was externed only for three months.
6. Having regard to the submissions made by the learned advocates for the parties and to the documents on record, more particularly, the impugned orders passed by the two authorities, it appears that the impugned order was passed by the Assistant Commissioner 'E' Division externing the petitioner for a period of two years only on the basis of a solitary case in respect of FIR being IC.R. No. 97 of 2019 registered for the offence under section 307, 323, 504 and 114 of IPC and section 135 of the G.P. Act. The relevant part of section 56(b) reads as under : "56. Removal of persons about to commit offence - Whenever it shall appear in areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, Page 3 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020 R/SCR.A/2687/2020 ORDER extend the provisions of this section, to the District Magistrate, or the Sub Divisional Magistrate empowered by the State Government in that behalf
(a) ***
(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 involving force or violence or an offence punishable under Chapter XII, XVI, XVII of the Indian Penal Code (XLV of 1860), 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 regards the safety of their person or property.
(c) ...... the said officer may, 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 as 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 such area within the local limits of his jurisdiction of [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."
7. Having regard to the purport of the said provision, it is clear that the Commissioner of Police may remove the person from an area within the local limits of his jurisdiction, when there are reasonable grounds for believing that such Page 4 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020 R/SCR.A/2687/2020 ORDER person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI, XVII of the Indian Penal Code etc., 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 regards the safety of their person or property. So far as the facts of the present case are concerned, the petitioner has been allegedly involved only in one case registered for the offence under section 307, 323, 504 of IPC, which fact itself could not be said to be sufficient ground for invoking Section 56(b) externing him for a period of two years and that too when coaccused involved in the same case has been externed only for a period of three months. The said order passed by the Assistant Police Commissioner has also been confirmed by the Additional Secretary, Home Department on the extraneous ground that the order of coaccused was passed by the Assistant Commissioner of Police 'H' Division and not by 'E' Division. The impugned orders being pervert, the same warrant interference of this court and deserve to be modified.
8. Since, by now the petitioner has already been externed for the period of more than one year, by virtue of the impugned orders, it is directed that the impugned orders shall stand Page 5 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020 R/SCR.A/2687/2020 ORDER valid only to the extent of the period from the date of passing of the orders till this date.
9. In that view of the matter, the petition is partly allowed. The impugned orders passed by the respondent authorities stand modified accordingly. Rule is made absolute to the aforesaid extent.
(BELA M. TRIVEDI, J) SINDHU / AMAR Page 6 of 6 Downloaded on : Mon Aug 10 21:22:40 IST 2020