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Abdul Gaffar Vs. State of U. P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1974CriLJ1244
AppellantAbdul Gaffar
RespondentState of U. P. and anr.
Cases ReferredJ. K. Iron and Steel Co. Ltd. v. Labour Appellate Tribunal of India
Excerpt:
.....for reasons to be recorded in writing he is satisfied that it is impracticable so to do, to the person concerned an opportunity of making a representation in that behalf, extend from time to time in interest of the general public the period specified in the order made under section 3, but the period so extended shall in no case exceed two years in the aggregate. the word 'extension' imports the continuance of an existing thing and must have its full effect given to where it occurs .the word 'extension' is too strong for me to grapple with; we fail to see any such legislative intent in section 5. the section undoubtedly casts a duty on the district magistrate to provide to the persons concerned an opportunity of making a representation against the proposed order, except where for..........the aforesaid cases notices under section 5 of the act have been issued after the expiry of the period fixed in the orders under section 3 of the act. the common question involved in all the above noted petitions is whether the period of externment can be legally extended after the expiry of the period of externment fixed in the order under section 3 of the act.3. sub-section (b) of section 2 defines 'goonda' and section 3 empowers the district magistrate to pass an order of externment of such a person for a period not exceeding six months if the conditions specified in that section are satisfied. section 5 of the act provides:the district magistrate may, after giving, except where for reasons to be recorded in writing he is satisfied that it is impracticable so to do, to the person.....
Judgment:

K.N. Seth, J.

1. The District Magistrate, Varanasi, by virtue of the power conferred on him under Section 3 of the Uttar Pradesh Control of Goondas Act (U. P. Act No. VIII of 1971) (hereinafler referred to as the Act) passed orders for the externment of the petitioners from the district for a period of six months. After the expiry of the period the District Magistrate issued notices to the petitioners under Section 5 of the Act to show cause why the period of externment order be not further extended by six months. Petitioners Bhushan Pandey and Shiv Prasad submitted their representations and challenged the validity, competence and propriety of the proposed order extending the period of externment. The District Magistrate rejected the representations and passed orders extending the period of externment for a further period of six months. Appeals by the aforesaid petitioners were dismissed by the Commissioner, Varanasi Division, Varanasi. The petitioners have challenged the notices under Section 5 of the Act and the orders of the District Magistrate and the Commissioner. Abdul Gaffar and Bechan Singh Yadav, against whom also notices under Section 5 of the Act have been issued for similarly extending the period of externment, have challenged the validity of the notices directly in this Court.

2. It is admitted that in all the aforesaid cases notices under Section 5 of the Act have been issued after the expiry of the period fixed in the orders under Section 3 of the Act. The common question involved in all the above noted petitions is whether the period of externment can be legally extended after the expiry of the period of externment fixed in the order under Section 3 of the Act.

3. Sub-Section (b) of Section 2 defines 'Goonda' and Section 3 empowers the District Magistrate to pass an order of externment of such a person for a period not exceeding six months if the conditions specified in that section are satisfied. Section 5 of the Act provides:

The District Magistrate may, after giving, except where for reasons to be recorded in writing he is satisfied that it is impracticable so to do, to the person concerned an opportunity of making a representation in that behalf, extend from time to time in interest of the general public the period specified in the order made under Section 3, but the period so extended shall in no case exceed two years in the aggregate.

The contention of the petitioners was that the power to extend the period specified in the order made under Section 3 could be exercised so long as that order remained in force but once that order had exhausted itself, the period of externment could not be extended. On behalf of the State it was urged that as the statute authorised the District Magistrate to extend the period from time to time, it contemplated that the order extending the period of externment could be passed either during the period of the original order or after its expiry.

4. The dictionary meaning of the word 'extend' is to enlarge, to continue, to expand or to amplify. It imports the continuance of an existing thing. A word may have several shades of meaning and it may acquire a colour in the context in which it is used. The Act is penal in nature and is designed to control or curtail the fundamental rights of a person to move freely and to reside and settle in any part of the territory of India. Reasonable restriction can certainly be imposed on the exercise of such rights but where fundamental rights of a citizen are curtailed, the power must be exercised strictly in conformity with the provisions of the statute.

5. After the expiry of the period fixed in the order under Section 3 of the Act, the person concerned is free from all disabilities imposed on him and regains his right to move freely and to reside and settle in any part of the territory of India. The order restricting his rights comes to an end and meets a natural death. Once that happens, there remains nothing which can be revived or extended. So long as the order continued in force, it could be given a fresh lease of life by extending the period of externment, not once but from time to time as the situation demanded, but when it finally came to an end with the lapse of time, there could be no question of extending the period for no period remained alive which could be extended. We are fortified in our opinion by the decision of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay AIR 1952 SC 181 : 1952 Cri LJ 955. In that case the petitioner was detained under the Preventive Detention Act and the period of detention was specified in the order passed under Section 11 (1). One of the questions considered was whether the period of detention could be extended. Section 13 empowered the appropriate Government to revoke or modify the detention order at any time. Mukherjea, J., observed:

I do not think that once the appropriate Government in making the order under Section 11 (1) specifies the period during which the detention of the person concerned is to continue, it becomes 'functus officio' and is incapable of extending the detention for a further period at a subsequent time if it considers necessary. In my opinion, Section 13 of the Act gives very wide powers to the detaining authority in this respect and it can revoke or modify any detention order at any time it chooses and the power of modification would certainly include a power of extension of the period of detention, provided such power is exercised before the period originally fixed has expired and provided the extended period does not exceed the overall limit which is co-extensive with the life or duration of the Act itself.

In the aforesaid case an earlier decision of the Supreme Court in Petition No. 584 of 1951, Chakar Singh v. State of Punjab was referred to with approval wherein it was laid down that the appropriate Government may direct the detention to continue even after the expiry of the period fixed by the order confirming the detention order or any subsequent order provided such directions are given before the expiry of the period fixed by the immediately preceding order.

6. Reference in this connection may also be made to the Brooke v. William Clarke (1818) 106 ER 146. In that case an author's right of copyright had come to an end before the enactment of another Act which granted the right of copyright for the lifetime of the author in case the author was alive at the expiry of twenty-eight years after the first publication. Lord Ellenborough, C. J. observed:

The word 'extension' imports the continuance of an existing thing and must have its full effect given to where it occurs ....

The word 'extension' is too strong for me to grapple with; and if the Court were to get rid of its operation, a great public injury would be effected by calling back a right that, by lapse of time, had become extinct.

7. Learned Counsel for the State relied on the principle laid down in the case of J. K. Iron and Steel Co. Ltd. v. Labour Appellate Tribunal of India AIR 1953 All 624 for the proposition that the order of extension could be passed even after the expiry of the period fixed in the original order of externment. In that case the question was whether the Adjudicator could make the award after the expiry of the period fixed for it. The proviso to Clause 16 of the Government Order empowered the State Government to extend the period of making the award from time to time. After an analysis of the relevant provisions, the Court observed that in the absence of any expression with respect to the cessation of the Adjudicator's power or right to decide the dispute it would be wrong to say that the Adjudicator ceases to be an Ad-judicator or that his right to adjudicate ceases. The expiry of the period fixed has no effect on his right to decide the dispute for that right does not come to an end after the expiry of that period. He cannot exercise the right to pronounce the award once the period allowed for making the award has expired, but if that period is extended subsequently, with the result that the extended period would be deemed to be the original period fixed, the Adjudicator can exercise his powers and pronounce his award. The Court further observed that Clause 13 empowered the Governor to withdraw any such reference but the order did not provide for the Adjudicator's returning the reference undecided to the Governor in case he did not give the award within the time allowed. The basis of the decision is that the Adjudicator remains seized of the reference till he makes the award and so long as he remains seized of the reference, the Governor can make an order extending the period of decision and thus making him competent to make the award. The principle enunciated in the aforesaid case can hardly be pressed in service in interpreting the provisions of the Act with which we are concerned in which all the restrictions imposed on the person concerned cease to exist as soon as the specified period comes to an end. It cannot even be said that the restrictions remain in suspended animation. The restrictions remain effective only so long as the order imposing the restrictions continues to be in force. Once the order ceases to be effective, the restrictions also cease to exist and are no longer capable of being extended, continued or enlarged.

8. It was contended on behalf of the State that the nature of the power under Section 5 indicates that it can be exercised only after the expiry of the original period. We fail to see any such legislative intent in Section 5. The section undoubtedly casts a duty on the District Magistrate to provide to the persons concerned an opportunity of making a representation against the proposed order, except where for reasons to be recorded in writing he is satisfied that it is impracticable to do so, but it does not envisage that this could be done only after the expiry of the period fixed in the original order under Section 3. The District Magistrate is not supposed to sleep over the matter after passing an order under Section 3. Where the fundamental rights of a citizen are concerned, the authorities have to be vigilant and must take action within time where restrictions imposed-on the rights of the person concerned are intended to be extended for to do so otherwise may result in disastrous consequences to the person concerned. After the expiry of the period of externment fixed in the order under Section 3, the person concerned would be free to come back to the area from where he had been externed. If the period of his externment is extended after the original period has come to an end, it would necessarily start from the date when the original period ended. There cannot be a hiatus or a break in the period otherwise it would not be a case of extension of the period of externment. The presence of the person concerned in the prohibited area during the period between the date of expiry of the original order of externment and the passing of an order under Section 5 would be in contravention of the order of externment for the legal effect of the order passed under Section 5 would be to date it back to the date of expiry of the original order of externment and he would be liable to be punished with rigorous imprisonment for a term which may extend to three years and he shall also be liable to a fine as provided in Section 10 of the Act. Such a situation is bound to arise if the interpretation suggested on behalf of the State is accepted. The Legislature could never have intended such an unfortunate situation to arise. If the circumstances justify an extension of the original period of externment, the authorities, must act within the period during which the order of externment continues to be in force and we visualise no insurmountable difficulty in passing the necessary order within that period even if an opportunity of representation has to be provided to the person concerned.

9. We are, therefore, of the opinion that the notices issued to the petitioners under Section 5 of the Act are incompetent and invalid. The petitions are accordingly allowed. The impugned notices are quashed. The orders of the District Magistrate and the Commissioner in writ petitions Nos. 7833 and 7842 of 1973 are also quashed. The parties shall bear their own costs.


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