Gujarat High Court
Jitendra @ Jitu Vishnubhai Patil ... vs State Of Gujarat on 7 September, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
R/SCR.A/8635/2022 ORDER DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8635 of 2022
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JITENDRA @ JITU VISHNUBHAI PATIL (MARATHI)
Versus
STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2,3,4,5
MS KRINA CALLA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 07/09/2022
ORAL ORDER
1. The present petition has been filed seeking quashing and setting aside the impugned order dated 15.07.2022 by the Additional Secretary, Home Department, Gujarat State, Gandhinagar in Externment Appeal No.10 of 2022 under the provisions of Section 56(b) Gujarat Police Act, 1951, (for short, "the G.P.Act."). By the impugned order, the Appellate Authority has modified the order dated 21/25.01.2022 passed the Assistant Police Commissioner, "A" Division, Ahmedabad City, wherein and whereby, the petitioner was externed from the districts i.e. Ahmedabad (City and Rural), Kheda, Mehsana and Gandhinagar for two years, which has been modified to the extent only district Ahmedabad.
2. On 14.11.2021, the petitioner was served with a show cause notice by the respondent no.2 under Section 56(b) of the Page 1 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 G. P. Act, asking his explanation, as to why he should not be extended from the limit of Ahmedabad as well as other contiguous districts i.e. Kheda, Mehsana and Gandhinagar. The show cause notice also refers to the statements of the 8 witnesses and registration of four FIRs against the petitioner. The petitioner accordingly filed his reply to the show cause notice and the witnesses were also examined by the respondent authorities. By the order dated 21/25.01.2022, the respondent No.2 ordered the externment of the petitioner for a period of two years from the aforementioned areas. Being aggrieved, the petitioner filed an appeal and by the order dated 15.07.2022, the Appellate Authority modified the order of externment and restricted it to the district Amehdabad.
3. Learned advocate Mr.Pathan, appearing for the petitioner has submitted that the impugned show cause notice as well as the impugned order are required to be set aside, since the same are premised on the statements of 8 witnesses, which are vague and unspecific. It is submitted that initially, the first authority has also placed reliance on four offences registered under the provision of the Indian Penal Code, has been registered against him.
4 Learned advocate has further submitted that as per the well settled proposition of law, the vague and unspecific statements of the witnesses cannot be relied upon for externing the petitioner and there has to be subjective satisfaction of the respondent authorities that merely registration of four offences, whether the petitioner can be termed to be a dangerous person who would enhance and Page 2 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 provoke the anti-social activities. He has submitted that the show cause notice as well as the impugned orders are required to be quashed and set aside.
5. Per contra, learned APP Ms.Calla has submitted that the impugned order does not require any interference of this Court. She has referred to the provision of Section 56(b) of the G.P.Act. She has submitted that all the witnesses have in fact not deposed against the petitioner due to fear imbibed in them and hence, the present writ petition may not be entertained.
6. I have heard the learned advocates for the respective parties. I have also perused the relevant documents.
7. The facts which are not in dispute, are that the petitioner is sought to be externed from the district Ahmedabad, by placing reliance on the statements of witnesses as well as registration of four FIRs registered with (i) Sheharkotda Police Station being CR No.3121 of 2019 for the offences punishable under Sections 323, 294(b) and 114 of the IPC; (ii) Sheharkotda Police Station being CR No.210 of 2019 for the offences punishable under Sections 326, 294(b) and 114 of the IPC and Section 135(1) of the G.P. Act; (iii) Sheharkotda Police Station being CR No.3237 of 2019 for the offences punishable under Sections 294(b) and 506(2) of the IPC and Section 135(1) of the G.P. Act and (iv) Nikol Police Station being CR No.11191015211412 of 2021 for the offences punishable under Sections 323, 294(b), 506(2) and 114 of the IPC. Even, the petitioner has been subsequently acquitted in two of the offences before the Appellate Authority, therefore merely on Page 3 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 the basis of rest of the two FIRs, the impugned order has been passed.
8. I may with profit also refer to the observations made by this Court in the case of Nana @ Raju Totaram Dusane (Sonara) Vs. State of Gujarat and Ors., (2021) 1 GLH 460. This Court, in the analogous case, where the petitioner was externed on the basis of registration of two FIRs under the provisions of Sections 379, 392, 397, 506(2) and 120B of the IPC, has held thus:-
"10. Having heard the arguments advanced by the learned Advocates appearing for the respective parties and the authorities cited by the learned advocate for the applicant, it appears that the subjective satisfaction arrived at by issuing so called notice under the B. P. Act by the authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged cannot have any bearing on the breach of public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the petitioner cannot be said to be so germane. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person. The authorities declared the present petitioner as dangerous person, who would enhance and provoke anti social activities, but there should be some subjective satisfaction, without there being subjective satisfaction, how the authority can issue notice to the effect as person for externment."
9. This Court has held that the respondent authorities, while exercising power under the provision of the G.P.Act for externment of any person have to arrive at a subjective satisfaction to the effect that the offences or illegal activities committed by such person, would result into breach of public Page 4 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 order as required under the Act or penal laws. The authorities are under a legal obligation to analyze the material facts and arrive at a conclusion that such person has become threat and menace to the society so as to disturb the equilibrium of the society and also that the public at large is in peril and public order is also disturbed at the instance of such person. The authorities have to give a specific finding that such person is a dangerous person, who would enhance and provoke the anti- social activities. Such a subjective satisfaction is required to be based on concrete and specific details and not on vague statements or material.
10. Before I part with the judgment, I may incorporate the observations made by the Division Bench way back in 1995 in case of Sabbirmiya Allarakha Saiyed vs Commissioner of Police, Vadodara, 1995 (2) GLR 1430. The Division Bench, after examining the provision of Sections 56 and 59 of the G.P.Act, has observed thus:-
"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 Sec. 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 Page 5 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 petitioner, it is necessary to have a brief look at the relevant provision of Sec. 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 Sec. 56 of the G.P.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 reasonable 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. ............
..................... 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 Sec. 59 of the G.P.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 at once 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."
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11. The Division Bench has observed that under section 56 of the G.P.Act, the authority vested with the discretion has to arrive at a subjective sanctification as to whether out of two preventive remedies available, viz., firstly, comparatively milder one, less drastic by directing such person 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, or secondly, the extreme preventive measure of externing him out of the area is required to be resorted to. Finally, the Division Bench has observed that "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.". Though the Division Bench has left to the desertion of the Exeterning Authoirty to resort to any of the remedies, but at the same time it is directed that the Externing Authority must bear in mind the "suggestion" expressed by it. It appears that the respondent- authorities have totally ignored the suggestion expressed by the Division Bench. Thus, the externing authority was required to apply mind to the suggestion of the Division Bench for resorting to lesser remedy before passing the externment order.
12. In the present case, the impugned orders are premised only on the statements of 8 witnesses, which also lack specific Page 7 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022 R/SCR.A/8635/2022 ORDER DATED: 07/09/2022 details and are vague in nature. In the impugned order passed by the respondent No.2 dated 14.11.2021, the FIRs registered with (i) Sheharkotda Police Station being CR No.3121 of 2019 for the offences punishable under Sections 323, 294(b) and 114 of the IPC; (ii) Sheharkotda Police Station being CR No.210 of 2019 for the offences punishable under Sections 326, 294(b) and 114 of the IPC and Section 135(1) of the G.P. Act; (iii) Sheharkotda Police Station being CR No.3237 of 2019 for the offences punishable under Sections 294(b) and 506(2) of the IPC and Section 135(1) of the G.P. Act and (iv) Nikol Police Station being CR No.11191015211412 of 2021 for the offences punishable under Sections 323, 294(b), 506(2) and 114 of the IPC are considered. However, subsequently, the petitioner has been acquitted in two of the offences before the order passed by the Appellate Authority. Therefore merely on the basis of rest of the two FIRs, the impugned order of externment has been passed.
13. On the substratum of the aforenoted observations, the show cause notice as well as the impugned orders passed by the respondent authorities are herewith quashed and set aside. The present writ petition stands allowed. Rule made absolute.
Direct service is permitted.
(A. S. SUPEHIA, J) MAHESH BHATI/241 Page 8 of 8 Downloaded on : Sun Dec 25 01:17:32 IST 2022