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Ramanlal Bhogilal Patel Vs. N.H. Sethna and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1971CriLJ435; (1970)GLR1014
AppellantRamanlal Bhogilal Patel
RespondentN.H. Sethna and anr.
Cases ReferredThakin Ba Thoung v. Emperor
Excerpt:
.....35 cri l j 1300 (bang). this part of the direction must therefore, be held to be outside the terms of section 144, sub-section (l). so far as the second part of the direction is concerned, namely, that the petitioner should not do or cause to be done any act either by speech or by conduot which would cause incitement, it is clearly a negative direction 'to abstain from doing a certain act,'and it cannot be assailed on the ground that it is not justified by the terms of section 144, sub-section (1). this seoond part of the direction was also challenged on the ground that the opinion of the commissioner on the basis of whioh it was issued was based on grounds which were either nonexistent or irrelevant......to be done any act either by speech or by conduot which would cause incitement, it is clearly a negative direction 'to abstain from doing a certain act,' and it cannot be assailed on the ground that it is not justified by the terms of section 144, sub-section (1). this seoond part of the direction was also challenged on the ground that the opinion of the commissioner on the basis of whioh it was issued was based on grounds which were either nonexistent or irrelevant. but this ground cannot ba sustained in view of the detailed facts set out in the affidavit-in-reply filed by the com-missioner.2 we, therefore, allow the petition and make the rule absolute to the limited extent that a writ of mandamus shall issue quashing and setting aside the impugned order made by the commissioner in.....
Judgment:

P.N. Bhagwati, C.J.

1. This patitions chalenges an order dated 21st June 1970 passed by the Commissioner of Police, Ahmedabad, Under Section 144, Sub-section (1) of the Criminal P. O. The order directs the petitioner that he should not enter or reside in or do or cause to be done any act either by speech or by conduct which would cause incitement, within the area specified in the schedule. The argument of the petitioner is that this order is beyond the terms of Section 144, Sub-section (1) in aa much as it directs the petitioner in the guise of a negative injunction to do a positive act namely, to leave the epeoified area, which ia not permissible Under Section 144, Sub-section (1). Now if we have regard to the language of Section 144, Sub-section (1), it is clear that what it authorizes the Commissioner of Police to do ia to direct anypereon to abstain from a certain act or to take certain order with certain property in his possession or under his management. We are not concerned here with the latter part of the Section for it is not the case.of:the Commissioner that the direction given by him in the impugned order is related to that part. The only question ia whether the direction given in the impugned order can be justified under the first part of the section. It i3 apparent in a plain gram., matieal construction that under the first part of the fection a person can be directed only 'to abstain from a certain act.' The direction can be only negative in character. No positive act can bs direoted to be done under this provi-sion. Now so far as the direction contained in the impugned order is oonoetned itia of a two-fold nit lire. The first part of the direction says that the petitioner shall not enter or reside in the specified area. The case of the petitioner is that he is residing in the specified area and this case has not been disputed on behalf of the Commissioner. The effect of this direction, therefore, is that the petitioner would have to leave the specified area and go out of it. It is no doubt true that the direction is negative in form in as much as it directs the petitioner not to enter or reside in the specified area; but in order to determine whether the direction is within the power conferred on the Commissioner under the seotion we must have regard to the substance of the direction and not the form. If we look at the substance of the direction it is clear that it directs the petitioner to do a positive act, namely, to remove himself from the specified area. That is something which is not permissible on the plain terms of Section 144, Sub-section (1). This view which we are taking is clearly supported by two deoi. siona, one of the Calcutta High Court reported in Emperor v. B. N. Sasmal (1931) 32 Ori L J 592 (Cal) and other of the Rangoon High Court in Thakin Ba Thoung v. Emperor (1934) 35 Cri L J 1300 (Bang). This part of the direction must therefore, be held to be outside the terms of Section 144, Sub-section (l). So far as the second part of the direction is concerned, namely, that the petitioner should not do or cause to be done any act either by speech or by conduot which would cause incitement, it is clearly a negative direction 'to abstain from doing a certain act,' and it cannot be assailed on the ground that it is not justified by the terms of Section 144, Sub-section (1). This seoond part of the direction was also challenged on the ground that the opinion of the Commissioner on the basis of whioh it was issued was based on grounds which were either nonexistent or irrelevant. But this ground cannot ba sustained in view of the detailed facts set out in the affidavit-in-reply filed by the Com-missioner.

2 We, therefore, allow the petition and make the rule absolute to the limited extent that a writ of mandamus shall issue quashing and setting aside the impugned order made by the Commissioner in so far a3 it directs the petitioner not to enter or reside in the specified area. The rest of the direction contained in the impugned order is held valid. There will be no order as to costs of the petition.


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