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Kathi Harsur Rukhad Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1986CriLJ1627; (1986)1GLR682
AppellantKathi Harsur Rukhad
RespondentState of Gujarat and ors.
Cases ReferredState of Gujarat v. Mehbubkhan
Excerpt:
.....have indulged in the concerned objectionable activities and in which area he was carrying on these activities. the notices, refer to the periods during which the acts are stated to have been committed, as well as the area where they are said to have been committed. it may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity or he may be able to tender proof of his general good conduct or alibi during the period covered by the notice and the like. on the facts of the present case, in the light of the allegations contained in the impugned show cause notices, there is no doubt left in our mind that these notices have failed to satisfy the test for being treated to be valid show cause notices under section 59 of the act. the petitioners..........said notices have been issued by the sub-divisional magistrate, amreli. it was alleged in the said notices that the petitioners were head-strong and quarrelsome persons and on the allegations mentioned in the show cause notices, it was thought necessary to extern them in the exercise of powers under sections 56, 57 and 63 of the act from the local limits of amreli and contiguous districts of bhavnagar and rajkot, for a period of one year. it was further alleged that if they were not removed from the said areas, then, they and their associates will continue such activities illegally through their agents and would engage in violent and harmful activities.3. both the petitioners filed written replies to these notices and tried to show how they were not liable to be externed and how notices.....
Judgment:

S.B. Majmudar, J.

1. In these two petitions by two brothers who are sought to be externed from the place where they reside and carry on their avocation of life in Malia in Amreli taluka of Amreli district, the externment orders passed against them by the authority and as confirmed by the Secretary, Home Department, have been brought in challenge.

2. A few relevant facts may be noticed at the outset. The petitioners are residing at village Malia in Amreli taluka of Amreli district. They are true brothers. Both of them were served with show cause notices of even date viz. 8-11-1983 under Section 59 of the Bombay Police Act. The said notices have been issued by the Sub-divisional Magistrate, Amreli. It was alleged in the said notices that the petitioners were head-strong and quarrelsome persons and on the allegations mentioned in the show cause notices, it was thought necessary to extern them in the exercise of powers under Sections 56, 57 and 63 of the Act from the local limits of Amreli and contiguous districts of Bhavnagar and Rajkot, for a period of one year. It was further alleged that if they were not removed from the said areas, then, they and their associates will continue such activities illegally through their agents and would engage in violent and harmful activities.

3. Both the petitioners filed written replies to these notices and tried to show how they were not liable to be externed and how notices proceeded on wrong allegations. Along with the replies, a list of witnesses was also furnished. Thereafter, the competent authority held inquiries as enjoined by Section 59 of the Act, permitted the petitioners to examine witnesses in defence and ultimately by two separate orders of even date viz. 25-6-1984 ordered that the petitioners should be externed for a period of one year from the receipt of the order and that both of them should go out of the areas within the local limits of Amreli and contiguous districts of Bhavnagar and Rajkot for that period. Thereafter, the petitioners challenged these orders by filing appeals under Section 60 of the Act before the appellate authority. The Deputy Secretary. Home Department State of Gujarat who heard the appeals dismissed the same and confirmed the orders passed against each of the petitioners. It is in these circumstances that both the petitioners have landed in this Court by way of the present petitions under Article 226 of the Constitution.

4. They were admitted to final hearing and ad interim stay of the impugned orders was granted. In response to the rules issued in these petitions, the respondents have filed their affidavits-in-reply of Mr. J. C. Rathod, formerly working as Sub-divisional Magistrate Amreli who was the externing authority. In the affidavit-in-reply, the contentions raised in the petitions are tried to be combated. At the time of final hearing of these petitions, Mr. Padival for the petitioners raised various contentions in support of these petitions. Amongst them, one contention which in our view goes to the root of the matter was to the effect that the show cause notices issued to the petitioners under Section 59 were totally vague with the result that the petitioners were kept guessing as to what were the allegations which they had to meet. That neither the period nor the localities were mentioned during which and in which respectively the petitioners were alleged to have indulged into the said so-called nefarious activities. According to Mr. Padival, this introduced a vital flaw in the entire proceeding. Consequently, the externment orders which ultimately culminated against the petitioners were null and void. As we are inclined to accept the aforesaid contention, we have not thought it fit to consider other contentions which were tried to be submitted by Mr. Padival for the petitioners in support of the petitions.

5. So far as the aforesaid contention about vagueness of the show cause notices is concerned, it will be in the fitness of things to reproduce the relevant recitals as found in the English translation of the show cause notices issued to the petitioners, which are identical in nature. We may reproduce the allegations found in the show cause notice issued to the petitioner in special criminal application No. 310 of 1985. The show cause notice was originally issued in Gujarati language, as translated in English, the material allegations therein read as under : -

1. You are strong-headed, violent and quarrelsome by nature and you are not doing any work.

2. There is a gang of three persons viz, (i) Jagu Ruhad, Vajsur Abhal and yourself and causing danger and harm to person and property.

3. You and your associates are engaged in the commission of an offence relating to body and property under Chapters XVI and XVII of the I.P.C.

4. You and your associates are preparing liquor and also running the business of liquor. Nobody comes forward to speak against you on account of your fear.

5. You are indulged with the activities of stealing the instruments of the farm from the field and Wadi.

6. You are grazing the crops by allowing the beast in the field.

7. You and your associates are engaged in the commission of an offence relating to body and property and nobody comes forward to give evidence in public and lodge complaint against you because of you and your associates are strong-headed, violent and quarrelsome by nature.

You are committing the act of the allegations Nos. 1 to 7 as stated above and persons are not willing to come forward to give evidence or lodge complaint in public against you on account of fear of their person or property. You are in the habit of committing the offence relating to the body and property and your said activities are punishable under Chapters XVI and XVII of the I.P.C.

It is no doubt true that the externing authority is only required to point out to the proposed externee the general nature of material allegations against him in the show cause notice and on that charge, the proposed externee has to be given reasonable time to tender explanation regarding them. Section 59(1) of the Act which is material for the present purpose reads as under : --

(1) Before an order under Section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall. grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him.

However, before the proposed externee can be said to have been given reasonable opportunity to tender explanation, all material allegations of general nature have to be pointed out to him. The aforesaid allegations in the show cause notice are totally vague. It is not even indicated during which period the concerned petitioner is alleged to have indulged in the concerned nefarious activities. There is equally no whisper about the area in which such alleged nefarious activities were indulged in by the concerned petitioner. Thus, both the point of view of period as well as area, no indication whatsoever is given to the petitioners, the proposed externees so that they can meet these allegations effectively, On the peculiar facts of this case and in the light of the framing of the allegations in the show cause notice, it must be held that both the petitioners were not given any reasonable opportunity to put forward their defence. The legal position on this point is well settled.

In the case of State of Gujarat v. Mehbubkhan AIR 1968 SC 1468 : 1969 Cri LJ 26 the Supreme Court, speaking through Vaidialingam, J. had to consider the scope and ambit of Section 59(1) of the Bombay Police Act and the further question whether the allegations contained in the show cause notice satisfy the test of Section 59(1) or not and whether these allegations were vague or not. The allegations in the show cause notice considered by the Supreme Court in the aforesaid case ran as under : -

It is alleged against you that you are a dangerous and desperate person and indulge in acts involving force and violence. You terrorise the residents of the localities known as Rentiawadi Halinkhadki and round about areas under Karanj and Madhvpura police stations. Since the month of November 1963 till today you are engaged in the commission of the following offence in the above localities -

1. You way-lay, rob and extort money from the persons at the point of knife and under threats of violence.

2. You demand money from the persons and on their refusal to pay you beat them.

3. You consume eatables from the place of public entertainment without payment and when legal dues are demanded, you beat the person:

You are engaged in several acts as mentioned in paras (1), (2) and (3) above and that 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.

It is proposed to extern you for a period of two years. It is also proposed to extern you out of the contiguous districts of Ahmedabad rural, Kaira and Mehsana as you are likely to operate and indulge in your violent activities from the contiguous districts also through your associates and agents if not so externed.

A mere look at the above allegations shows that the proposed externee was clearly indicated as to during which period he was said to have indulged in the concerned objectionable activities and in which area he was carrying on these activities. Despite these allegations which were of general nature and which pertained to material particulars of the allegations, this Court had taken the view that these allegations were vague. Reversing the view of this Court in the aforesaid case, the Supreme Court in para 20 of the report speaking through Vaidialingam, J held as under: -

the reasoning of the learned Judges that the said allegation should have contained all the particular places of public entertainment, or what particular establishment the respondents were supposed to have visited, is not warranted, by the provisions of Section 59. In fact, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is not entitled to be supplied with particulars of the allegations made against him. We are therefore not inclined to accept the above reasoning of the Gujarat High Court. The notices, refer to the periods during which the acts are stated to have been committed, as well as the area where they are said to have been committed. No doubt, the expression 'place of public entertainment', is defined in Section 2(10) of the Act; but the mere fact that the said definition takes in various types of places, does not militate against the allegation No. 1 in special criminal application No. 3 of 1965, or allegation No. 3 in the connected application, being of a general nature of the material allegations as contemplated under Section 59. Without attempting to be exhaustive, we may state that when a person is stated to be a thief that allegation is vague Again, when it is said that 'A' stole a watch from X on a particular day and at a particular place the allegation can be said to be particular. Again, when it is stated that 'X' is seen at crowded bus stands and he picks pockets it is of a general nature of a material allegation: Under the last illustration, given above, will come the allegations, which, according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he had to tender an explanation to a notice, under Section 59, he can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity or he may be able to tender proof of his general good conduct or alibi during the period covered by the notice and the like.

(Emphasis supplied)

In view of the aforesaid authoritative pronouncement, of the Supreme Court, it is obvious that even though notice issued under Section 59 is to refer to allegations of general nature-containing material particulars, at least such allegations in order to meet the requirement of the law, must indicate the area or locality where such alleged activities were said to have been committed by the proposed externee and the allegations should also indicate as to within what period, he did it so that his defence about alibi if at all can be reasonably put forward for consideration of the externing authority. On the facts of the present case, in the light of the allegations contained in the impugned show cause notices, there is no doubt left in our mind that these notices have failed to satisfy the test for being treated to be valid show cause notices under Section 59 of the Act. Merely because the petitioners filed their replies as they were kept guessing about the period during which and the localities in which they were alleged to have undertaken the alleged activities this fact would not improve the position for the respondents. The statute enjoined upon them to give proper show cause notices under Section 59. On the facts of this case, therefore, it must be held that the notices were totally vague. The petitioners were denied reasonable opportunity to meet the allegations contained in the show cause notices and consequently, the resultant externment order in each of these two cases was bad in law and null and void.

6. Only on this short ground, these petitions are allowed. The externment orders passed against both the petitioners and as confirmed by the appellate authority are quashed and set aside by issuing writs of mandamus in both these cases. Rules are accordingly made absolute in both these cases.


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