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Harji Hira Rabari Vs. E.N. Renison Dy. Comm. of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR283
AppellantHarji Hira Rabari
RespondentE.N. Renison Dy. Comm. of Police and anr.
Excerpt:
.....acts punishable under chapter xvi and xvii of the indian penal code within the localities known as sarangpur, sarangpur dolatkhana, sarangpur chakla, sarangpur darwaja, madalpur, v. hospital, ellis bridge and round about the areas under the limits of kalupur and ellis bridge police station and there are reliable materials to prove the allegations contained in paras 1, 2, 3 and 4 above; even so, the deputy commissioner proceeded to hold that after considering the entire material placed before him he was satisfied that the petitioner was engaged in the commission of acts involving force and violence and acts punishable under chapters xvi and xvii of the indian penal code within the localities known as sarangpur, sarangpur dolatkhana, sarangpur chakla, sarangpur darwaja, madalpur, v. the..........force and violence. you terrorise the residents and persons frequenting the localities known as sarangpur, sarangpur dolatkhana, sarangpur chakla, sarangpur darwaja, madalpur, v.s. hospital areas, ellis bridge and round about the areas under the limits of kalupur and ellis bridge police station. since january 1967 till today you are engaged in the commission of following acts in the localities shown below:(1) you rob and extort money at the point of rampuri knife and under threats of violence from the persons residing and frequenting the localities known as sarangpur chakla, sarangpur dolatkhana and sarangpur darwaja in the limits of kalupur police station;(2) you take articles like vegetables and icecream from the shop-keepers of the localities known as sarangpur chakla in the limits.....
Judgment:

P.N. Bhagwati, C.J.

1. The petitioner in this petition challenges an order of externment passed against him under Section 56 of the Bombay Police Act, 1951 (hereinafter referred to as the Act). The order of externment was preceded by a show cause notice under Section 59 and the allegations made against the petitioner on the basis of which he was sought to be externed were set out in the show cause notice as under:

It is alleged against you that you are a dangerous and desperate man and constantly indulge in acts involving force and violence. You terrorise the residents and persons frequenting the localities known as Sarangpur, Sarangpur Dolatkhana, Sarangpur Chakla, Sarangpur Darwaja, Madalpur, V.S. Hospital areas, Ellis Bridge and round about the areas under the limits of Kalupur and Ellis Bridge Police Station. Since January 1967 till today you are engaged in the commission of following acts in the localities shown below:

(1) You rob and extort money at the point of Rampuri knife and under threats of violence from the persons residing and frequenting the localities known as Sarangpur Chakla, Sarangpur Dolatkhana and Sarangpur Darwaja in the limits of Kalupur Police Station;

(2) You take articles like vegetables and icecream from the shop-keepers of the localities known as Sarangpur Chakla in the limits of Kalupur Police Station and when legal dues are demanded you refuse to pay them under threats of violence;

(3) You assault and beat innocent persons residing and frequenting the localities known as Sarangpur Dolatkhana, Madalpur and Ellis Bridge, in the limits of Kalupur and Ellis Bridge Police Station in order to overawe them with your violent acts;

(4) You threaten the witness for not giving evidence in prohibition case made out against your friend, near V. S. Hospital in the limits of Ellis Bridge Police Station, under threats of violence.

You are engaged in several acts as mentioned in paras (1), (2), (3) and (4) above and the witnesses to the above incidents are not willing to come forward to depose against you in public by reason of apprehension on their part as regards the safety of their person and property.

Pursuant to the show cause notice, the petitioner appeared before the Superintendent of Police and led evidence against the allegations contained in the show cause notice. The Deputy Commissioner of Police thereafter passed the externment order impugned in the petition, the material portion of which runs as follows:

Whereas materials have been placed before me, the Deputy Commissioner of Police, Hd. Qrs., Ahmedabad City, against Shri Harji Hira Rabari, resident of Sarangpur Dolatkhana, Navi Pole, Ahmedabad City, to the effect that:

(1) He robs and extorts money at the point of a Rampuri knife and under threats of violence from the persons residing and frequenting the localities known as Sarangpur Chakla, Sarangpur Dolatkhana and Sarangpur Darwaja in the limits of Kalupur Police Station:

(2) He takes articles like vegetables and icecream from the shop-keepers of the localities known as Sarangpur Chakla in the limits of Kalupur Police Station and when legal dues are demanded, he refuses to pay them under threats of violence;

(3) He assaults and beats innocent persons residing and frequenting the localities known as Sarangpur Dolatkhana, Madalpur and Ellis Bridge, in the limits of Kalupur and Ellis Bridge Police Stations in order to overawe them with his violent acts;

(4) He threatens the witnesses for not giving evidence in prohibition case made out against his friend, near V.S. Hospital in the limits of Ellis Bridge Police Station, under threats of violence;

And whereas, I have considered the explanation tendered by him and the evidence produced on his behalf in defence;

'And whereas, after considering the entire material placed before me and after carefully considering the defence produced on his behalf, I am satisfied that said Shri Harji Hira Rabari is a desperate and dangerous man and is engaged in the commission of acts involving force and violence, and acts punishable under Chapter XVI and XVII of the Indian Penal Code within the localities known as Sarangpur, Sarangpur Dolatkhana, Sarangpur Chakla, Sarangpur Darwaja, Madalpur, V.S. Hospital, Ellis Bridge and round about the areas under the limits of Kalupur and Ellis Bridge Police Station and there are reliable materials to prove the allegations contained in Paras 1, 2, 3 and 4 above;

Now, therefore, in exercise of the powers vested in me, under Section 56 of the Bombay Police Act (Bombay XXII of 1951) I,E.N. Renison, I.P.S., the Deputy Commissioner of Police, Hd. Qrs' Ahmedabad City, do hereby direct that the said Shri Harji Hira Rabari shall remove himself outside the district of Ahmedabad city and the contiguous districts of Ahmedabad Rural, Kaira and Mehsana as he is likely to operate and indulge in his such activities from the contiguous districts through his associates and agents if not externed from the contiguous districts by rail or road via Baroda within two days from the date of service of this order on him.

This order of externment is challenged by the petitioner on various grounds but it is not necessary to refer to all of them since, in our opinion, there are two grounds which are fatal to the validity of the order of externment and we shall, therefore, confine ourselves only to a discussion of those two grounds.

2. The first ground urged on behalf of the petitioner was that the order of externment has gone beyond the scope of the show cause notice as regards the area of activity of the petitioner. The show cause notice no doubt alleged that the petitioner was a dangerous and desperate man and constantly Indulged in acts involving force and violence and terrorised the residents and persons frequenting the localities known as Sarangpur, Sarangpur Dolatkhana, Sarangpur Chakla, Sarangpur Darwaja, Madalpur, V.S. Hospital area, Ellis Bridge and round about areas within the limits of Kalupur and Ellis Bridge Police Stations, but these allegations being too general in character, the show cause notice proceeded to particularise them by setting out in Clauses 1 to 4 specific kinds of acts which were being committed by the petitioner in certain specified localities during a particular period. The show cause notice was thus confined to the specific allegations made in Clauses 1 to 4 and those were the allegations which the petitioner was called upon to meet. Now the period of activity in respect of these allegations was specified as 'since January 1967 till today' and a specific area of activity was specified in respect of each of these allegations. None of these allegations contained any reference to the areas round about these specified areas though a reference to the round about areas was made in the general allegations. The petitioner was, therefore, not called upon to meet any allegation in regard to the areas round about the areas specified in Clauses 1 to 4. The respondents relied upon the reference to the round about areas in the general allegations but is reference is futile and meaningless since the show cause notice did of rest upon the general allegations but the general allegations being particularised, the show cause notice was confined to the specific allegations in Clauses 1 to 4 and there was no reference to the round about areas in the specific allegations contained in those clauses. Even so, the Deputy Commissioner proceeded to hold that after considering the entire material placed before him he was satisfied that the petitioner was engaged in the commission of acts involving force and violence and acts punishable under Chapters XVI and XVII of the Indian Penal Code within the localities known as Sarangpur, Sarangpur Dolatkhana, Sarangpur Chakla, Sarangpur Darwaja, Madalpur, V.S. Hospital, Ellis Bridge and round about areas within the limits of Kalupur and Ellis Bridge Police Stations. The externment order in so far as it was based upon the satisfaction of the Deputy Commissioner of Police that the petitioner was engaged in the commission of acts involving force and violence and acts punishable under Chapters XVI and XVII of the Indian Penal Code in the round about areas within the limits of Kalupur and Ellis Bridge Police Stations was, therefore, clearly beyond the scope of the show cause notice. No opportunity to show cause against any allegations relating to the round about areas within the limits of Kalupur and Eilis Bridge Police Stations was afforded to the petitioner and yet the externment order was passed on the basis that the petitioner was engaged in the commission of certain types of acts in the round about areas. The externment order must therefore be held to be invalid.

3. This view which we are taking is clearly supported by an unreported decision of a Division Bench of this Court consisting of Mehta and Thakore JJ. in Special Criminal Application No. 5 of 1968. The show cause notice which was issued in that case was substantially in the same terms as the show cause notice in the present case with only this difference that instead of specific areas being set out in reference to the specific allegations, the Superintendent of Police had given an omnibus description of the area of operation as 'the aforesaid localities. 'The specific allegations contained in the various clauses of the show cause notice were therefore made in reference to the aforesaid localities'. Now the localities which were referred to in the preceding portion of the show cause notice were various specified localities and round about areas. The question which, therefore, arose was whether the words 'the aforesaid localities' referred to the specified localities alone or they also extended to round about areas. The externee contended that the words 'the aforesaid localities' were confined only to the specified localities and did not embrace within their scope and ambit round about areas and the specific allegations made in reference to 'the aforesaid localities' did not therefore relate to the round about areas and the externment order based as it was on the satisfaction of the Deputy Commissioner of Police that the externee was engaged in the commission of acts in the round about areas was accordingly vitiated as being beyond the scope of the show cause notice. The Deputy Commissioner disputed the validity of this contention on the ground that the words 'the aforesaid localities' also referred to round about areas and the specific allegations therefore related to the round about areas as well and the externment order was not beyond the scope of the show cause notice. Mehta J. delivering the judgment of the Division Bench took the view that the words 'the aforesaid localities' in the context did not embrace round about areas and the specific allegations were therefore confined only to specified areas and did not extend to round about areas and the externment order in so far as it rested on the acts of the externee in the round about areas was consequently beyond the scope of the show cause notice and was accordingly bad. This decision is a direct authority in support of the view we are taking. What Mehta J. held in that case by a process of interpretation of the words 'the aforesaid localities' is stated here in clear and explicit terms. The specific allegations set out in Clauses 1 to 4 are in so many terms confined to specified localities and they do not cover the round about areas. The externment order is, therefore, clearly bad and must be set aside.

4. There is also a second ground on which we must hold the externment order to be invalid. There is, in our opinion, clearly non-application of mind on the part of the Deputy Commissioner of Police in passing the externment order. The opening part of the externment order shows that the only material which was placed before the Deputy Commissioner of Police was the material supporting the specific allegations set out in Clauses 1 to 4 of the show cause notice which were confined to specified localities and did not extend to round about areas. There is nothing in the externment order to show that there was any material before the Deputy Commissioner of Police to show that the petitioner was engaged in the commission of any acts in round about areas. If any such material had been produced before the Deputy Commissioner of Police he would have certainly referred to it as he did refer to the material in support of the specific allegations contained in Clauses 1 to 4 of the show cause notice. Even though avowedly and on the face of the externment order the Deputy Commissioner had no material before him showing that the petitioner was engaged in the commission of acts in round about areas, the Deputy Commissioner of Police proceeded to say in the externment order that he was satisfied that the petitioner was engaged in the commission of acts in round about areas.

5. It is difficult to appreciate how the Deputy Commissioner could possibly arrive at this satisfaction when there was no material before him in that behalf. This clearly establishes non-application of mind on the part of the Deputy Commissioner of Police and shows that the Deputy Commissioner of Police passed the externment order mechanically by looking merely at the terms of the show cause notice without really applying his mind to the question whether on the material before him the specific allegations against the petitioner were established.

6. We, therefore, allow the petition and make the rule absolute by issuing a writ quashing and setting aside the externment order passed by the Deputy Commissioner of Police against the petitioner. The respondents will pay the costs of the petition. We must, however, make it clear that it would be open to the authorities to pass a fresh order if they are so advised after following the proper procedure in accordance' with law.


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