Gujarat High Court
Sabbirmiya Allarakha Saiyed vs Commissioner Of Police on 17 February, 1995
Equivalent citations: (1995)2GLR1430
JUDGMENT K.J. Vaidya, J.
1. Whether while passing the final order, in view of clear discretion left open to the Externing Authority under Section 56 of the Bombay Police Act, 1951, viz., to prefer either of the two alternative preventative remedies, viz., to direct the person against whom notice under Section 59 of the Act has been issued; in the first instance, to conduct himself in a well behaved orderly manner as a law-abiding citizen and for that purpose, by taking a surety bond and imposing some additional reasonable terms and conditions or in the second instance, to remove him out of the concerned area, it is duty bound to briefly indicate the reasons particularly in case where it prefers to pass an order imposing extreme preventive remedy of ordering removal out of the area"? This in short is the question that arises for consideration in the context and background of circumstances enumerated hereunder.
2. Sabbirhussain Allarakha Saiyed, the petitioner herein is a resident of Baroda. The Deputy Commissioner of Police, Baroda issued a notice under Section 59 of the Bombay Police Act, 1951 (for short "the Act") against him in substance alleging that he was a head-strong, ferocious, anti-social and that during the period from April 1991 to May 1992, he was involved in as many as three criminal offences registered at Baroda City Police Station under Chapter-XVI of the Indian Penal Code, out of which, in one case, he was acquitted while the other two cases were pending. In response to this notice, petitioner submitted a written statement, in substance, denying all the allegations levelled against him. It is further the case of the petitioner that in none of the three cases so registered against him in the respective FIRs, he is either named or any description about him is given and that he has been just falsely implicated on the basis of some suspicion. Further according to the petitioner, he was a poor man and the only bread-winner of his family comprising of wife, three minor children and old ailing parents, out of which his mother was bed-ridden with two to three heart-attacks. Not resting satisfied by merely filing this written statement, petitioner also in support of his defence examined two respectable citizens, viz., Abdulmiya Ahmedmiya and Prakash Bhupendra Thaker, both businessmen, certifying that the petitioner was a person with good character. On the basis of these submissions, firstly praying for discharge of notice issued against him, the petitioner in the alternative has also further prayed that in case if the Externing Authority was not inclined to give him a clean bill and discharge the notice issued against him, then in that case, instead of passing the extreme order of externment, a surety bond for his good behaviour for two years alongwith some reasonable terms and conditions may be accepted.
3. On the basis of the aforesaid material on record, the Deputy Commissioner of Police rejecting the plea of the petitioner, ultimately by an order dt. 9-3-1994 externed him from the area under his jurisdiction and the adjoining districts as stated in detail in the show cause notice issued under Section 59 of the Act. This order of the Deputy Commissioner of Police was challenged by way of Appeal before the State Government, which in turn was ultimately confirmed by the order dated 26-4-1994, giving rise to the present petition.
4. Upon hearing the learned Advocates appearing for the respective parties, it cannot be gainsaid that the petitioner is not an anti-social harassing the innocent citizens of the concerned area of Vadodara, and for that purpose, the Externing Authority has committed any error in accepting and relying upon the statements given by various witnesses of the area. However, at the same time, as apprehended by the learned Advocate appearing for the petitioner, it prima facie appears that while passing the impugned order of externment, the Externing Authority has lost sight of the relevant provision contained in Section 56 of the Act vesting a discretion in it as to whether out of two preventive remedies available, viz., firstly, comparatively milder one, less drastic by directing the petitioner so as to conduct himself as a well-behaved citizen by asking him to furnish a bond of surety guarantee of good conduct during the stipulated period, and secondly, the extreme preventive measure of externing him out of the area !! In order to appreciate this particular limb of the argument advanced on behalf of the petitioner, it is necessary to have a brief look at the relevant provision of Section 56 of the Act, which reads as under:
.... the said officer may, by an order in writing as 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 deem 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....
5. On careful perusal of the above provision, it is quite clear that the Legislature in its wisdom has rightly left open two courses of the preventive measures to the Externing Authority at the time of passing the order under Section 56 of the Act - they are on the one hand to direct the proposed externee so as to conduct himself in a well-behaved and orderly fashion by taking from him surety bonds and imposing some reasonble terms and conditions, or to remove him out of the area of his jurisdiction as well as the adjoining districts. When such is an unambiguous legal position, and more particularly in view of the alternative specific prayer made by the petitioner that for the special grounds stated in his written statement, he may not be externed from the concerned area and instead some surety bond for good behaviour be taken from him, the Externing Authority was duty bound to apply its mind as to out of the two preventive remedies available which one was required to be resorted to. Frankly speaking, on perusal of the impugned order of externment, there is indeed not a word-whisper even why the alternative prayer of the petitioner to accept bond for good behaviour from him has not been accepted!! This important exercise by the Externing Authority appears to be prima facie missing!! The whole idea underlying vesting such an optional discretion is that if the alleged situation created by the proposed externee can be reasonably taken Care of by resorting to some comparatively milder, less drastic remedy than the extreme remedy of removing him may not be resorted to!! This is so, for the simple reason that the ultimate idea underlying Section 56 of the Act is to prevent a person from carrying on his alleged illegal anti-social activities causing harassment and suffering to the people of the area, and not to punish him. In fact, the rational of the object and the mandate underlying Section 56 of the Act is to make the Externing Authority cautious enough so as to make it exercise its discretionary power with greater care and circumspection bearing in mind firstly, the most important fact that it was exercising quite an extraordinary powers on the basis of some allegations made by the concerned aggrieved persons and the witnesses of the area who were not willing to come forward to give evidence in public against such persons by reasons of apprehension on their part as regards the safety of their person and/or property. Secondly, the overall social interest for which the Legislature in its wisdom has enacted such an extraordinary provision in the Act empowering the authority to pass appropriate order on the basis of mere suspicion, and at the same time, thirdly not altogether ignoring the care and concern also for the proposed externee as well as his family members 11 The provision under Sections 56 and 57 are ultimately precautionary measures and that too on the basis of the statement of witnesses who as they claim allege were not prepared to give evidence in public against the concerned anti-social act out of fear of harm to them 11 This may be true, may not be true and yet to err on the safer side and by way of abandant caution in the overall social interest even on the basis of some suspicion, the Legislature in its wisdom has rightly granted such an extraordinary power to the authorities incharge of the maintenance of law and order situation in the area. In fact, whenever any statutory functionary is so empowered to exercise such an extraordinary powers, as the one under Sections 56 and 57 of the Act, the importance and greatness of the same do not merely lie in exercise of such power itself as much as they lie in the befitting manner of restraint, accountability and overall discretion it commands in exercising said powers!! As a matter of fact, greater the power, greaterst still ought to be the care and circumspection on the part of the Externing Authority while exercising such power. If one is not conscious of sanctity and the restraint of ones power, it has all the potency to degenerate corruption and please understand that the corruption does not necessarily mean corruption in the terms of illegally taking money and/or some favour only from the victim as the corruption also means that when power goes to the head, intoxicates authority making him lose balance of discretion, and the same is mechanically exercised, it is also a corruption!! Thus, the whole idea underlying Section 56 of the Act is that if by resorting to less drastic remedy the problem of disturbance of law and order and the public order to be faced every day by the police department can be reasonably taken care of by taming down the proposed externee by binding him down with certain stringent terms and conditions, then in that case, there is indeed no need to resort to the extreme measure of removing him out of the concerned area. In order that any step, action, or order that is ultimately made by the authority is just, fair and proper, its degree and extent should not be anyway more than the required one under the facts and circumstances of the case. Ordinarily, by passing the order of externment, the externee would be thrown to the other district, thinking that he would not open the new chapter of the alleged anti-social activities constituting offences under Indian Penal Code or other offence there as his local nest of said anti-social activities would be busted and he would be immoralized to the said extent!! Now this assumption, no doubt to some extent, in some cases may turn out to be quite true but at the same time, that may also prove to be temporary and illusory even as in the course of time the externee may soon begin carry forward his score of anti-social activities in the areas where he is transported to !! This is bound to happen because a person who is thrown out of the district, obviously being unemployed, in order to make good his two ends meet, may resort to very same anti-social activities which is his deeply imbedded tendency. Else from where he would get atleast a meal a day and pair of cloths to put on when it is torn ! To keep body and the soul together to survive one definitely needs either friends, family, relatives or charity to support if honest means to employ oneself is not available and in case when aforesaid four supports are not available, and suicide is out of question, the dishonest means and the anti-social activities are the only sources, recourse left open to a person struggling to survive!! If indeed that is so then the externment may at the most solve the problem of anti-social activities in concern area only but then that solution is just like trapping the rats and snakes in one area and thereafter letting them lose in other areas, passing-off the problem there! Now this passing-off of the problem is neither facing the problem nor far from that solving the problem!! [Any way that is entirely a question for the legislature to consider and decide what should be done! Therefore, passing of the order of externment is not something like passing-off the headache of one authority of the area to another authority of other area and accordingly, if the proposed externee is ready and willing to be bound down by any terms and conditions, it would be in quite the fitness of the things to give preference and accept the same and pass that order as by virtue of which he can be controlled and ultimately with the passage of time even may be reclaimed to the society as a good citizen. It may be clarified that the Externing Authority is certainly not bound to pass less drastic preventive order in each and every case as it would be open to it to remove the proposed externee of the said area, if according to it, he is so desperately dangerous that it is not possible to accept his assurance and trust his words at face value that he will conduct as a good citizen and in orderly manner. In substance, what we say and emphasise is that the power of the Externing Authority regarding externment is not disputed. It has indeed that power! But what we say is that if taking into consideration the facts and circumstances of the case, if less drastic preventive remedy by way of taking bond of good behaviour for an year or two can be resorted to, it must be preferred and applied first instead of straightway resorting to the extreme preventative penalty of externment. Thus, out of the two courses left open, the impugned order must indicate the reasons as to why out of the said two preventive remedies, the Externing Authority has not opted for the less drastic remedy. To this, the learned APP submitted that if Externing Authority was expected to give reasons, that would virtually amount to writing a judgment by giving reasoned order. In support of this contention, the learned APP has relied upon a decision of this Court rendered in the case of Razakbhai Abdulbhai Ghanchi v. State of Gujarat and Anr. reported in XXXV (2) 1994 (2) GLR 1603, wherein, in substance, it is held that the order of externment being administrative in nature, neither the Externing Authority nor the Appellate Authority is bound to state reasons in support of its ultimate order. Quite true, and indeed there cannot be any two views about the said settled legal position. If the Externing Authority in the first instance, is inclined to accept and rely upon the statement of witnesses alleging a person to be anti-social, harassing them and looking to his desperate and dangerous character they were not prepared to give their statements in public and in the second instance opts for less drastic remedy, i.e., to take a surety bond for good behaviour for a particular period, then in that case, it is indeed quite understandable that it may not assign any reasons in support of its ultimate order. But as against this when the Externing Authority is inclined to remove the proposed externee out of the concerned area, then it is expected of him to assign atleast some reasons for reaching the said conclusion. Accordingly, the order must contain few lines so as to indicate and demonstrate on record how the authority has exercised its discretion while opting for either of the two preventive remedies!! This is indeed necessary for the Appellate Authority and the High Court to further know and satisfy itself on two counts, viz., firstly, that the said order is not passed mechanically and secondly, for the purposes of scrutinizing the reasons which weighed upon the Externing Authority while passing the extreme order of externment more particularly when in very nature of the scheme and the object of Section 56, the Legislature has vested a discretion in the Externing Authority to apply itself and pass appropriate order, if possible for the less drastic remedy by way of directing the externee to conduct himself as a peaceful citizen and if in its subjective satisfaction, that remedy would not serve the purpose then of course, it is open to the Externing Authority to pass order of moving him of the area. Now when the discretion is vested by the Legislature itself, if the Externing Authority wants to resort to extreme harsh measure of externment, then in that case, he is supposed to give some reasons, may be in few lines as to why he is so constrained and compelled to pass an extreme order. This is only with a view to check in a given case the desperate and mechanical exercise of power by the Externing Authority. This cannot be said to be a writing of judgment in the sense judgment is ordinarily understood as apprehended by the learned APP. In this view of the matter, the Externing Authority should see to it that the order of externment is not passed in hot-haste on the basis of some prejudices, exasperation, disgust, but the same is passed in such a manner which not only fully takes care of the harassed people of the area but the same as well take care of the externee as well as family members who is sought to be externed on mere untested allegations of witnesses and suspicion arising therefrom! Apart this, if in the first instance, the less drastic remedy, viz., of taking surety bond of good behaviour is taken from the person against whom the notice under Section 59 of the Act is issued then in a way, there is indeed nothing wrong in it for the simple reason that the concerned person is thereby given an opportunity to improve and behave well. In case, despite this opportunity being given of improving himself, if the concerned person misbehaves, the Externing Authority would be certainly not powerless in atonce resorting to the extreme preventive remedy, viz., that of externment. Once again this suggestion of the Court should not be taken as binding down the Externing Authority to pass the order of less drastic remedy of seeking surety bond and not to pass externment order in each and every case. In fact, it is just a suggestion which the Externing Authority must bear in mind while passing the order of externment.
6. Reverting back to the facts of the present case, bearing in mind the aforesaid discussion, the Externing Authority is directed to re-examine the alternative plea of the petitioner to accept his bond for good behaviour for the rest of the period, and after reconsideration even, if the authority is still not inclined to accept the said alternative plea of the petitioner and wants to continue the order of externment as it is, then the reason justifying the same may be assigned as held by this Court in this judgment.
7. In the result, this Special Criminal Application is partly allowed.
8. The impugned order of externment is modified to the aforesaid extent and the matter is remanded to the Externing Authority to pass appropriate order. The petitioner is directed to approach the Deputy Commissioner of Police on 1st March, 1995 or any day convenient thereafter, to pass an appropriate order in the light of the observations made hereinabove. Rule made absolute. The Office is directed to communicate the copy of this order immediately to the Deputy Commissioner of police, Baroda.