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Lalji Kanji Vs. V.T. Shah, Dy. Commissioner of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR668
AppellantLalji Kanji
RespondentV.T. Shah, Dy. Commissioner of Police
Cases Referred(Ramesh Mulshanker v. The State). In
Excerpt:
- - it was further alleged that they visited cinemas and molested girls and women by cutting indecent jokes at them in public but on account of their hazardous and violent activities the victims of their acts could not dare to complain against them. it further says that the deputy commissioner of police had considered the explanation tendered by him and the evidence produced by him and after considering all the materials evidence and the explanation the deputy commissioner of police was satisfied that ambalal vadilal soni is a dangerous and desperate man who is engaged in commission of acts and offences involving assaults extortion etc. which are punishable under chapters xvi and xvii of the indian penal code and that there were reliable materials to prove the allegations contained in.....b.j. divan, j.1. these three special criminal applications arise out of the externment proceedings taken by the deputy commissioner of police ahmedabad city against three different individuals. in special criminal application no. 755/1962 the petitioner is lalji kanji who is also referred to as lalji kanji hajam in special criminal application no. 791/1962 the petitioner is ambalal vadilal soni and in special criminal application no. 794/1962 the petitioner is sartan khengar rabari. it has been alleged against each of these three individuals that along with the other two each of the petitioners in these different proceedings have been harassing people and since all the allegations made in the notice under section 59 of the bombay police act against all these three individuals are more or.....
Judgment:

B.J. Divan, J.

1. These three Special Criminal Applications arise out of the externment proceedings taken by the Deputy Commissioner of Police Ahmedabad City against three different individuals. In Special Criminal Application No. 755/1962 the petitioner is Lalji Kanji who is also referred to as Lalji Kanji Hajam in Special Criminal Application No. 791/1962 the petitioner is Ambalal Vadilal Soni and in Special Criminal Application No. 794/1962 the petitioner is Sartan Khengar Rabari. It has been alleged against each of these three individuals that along with the other two each of the petitioners in these different proceedings have been harassing people and since all the allegations made in the notice under Section 59 of the Bombay Police Act against all these three individuals are more or less in the same terms and since the orders of externment passed against these three individual are also in the same terms we propose to consider these three petitions together and also to consider the special features if and of any one of these three applications later on.

2. First we will take up for the sake of convenience Special Criminal Application No. 791of 1962 against Ambalal Vadilal Soni. Notice under Section 59 of the Bombay Police Act was served on the petitioner on June 24 1962 and he was called upon to give an explanation concerning the allegations set out in the notice and also to bring his witnesses. If any in regard to the allegation. Now the notice contains the allegations that along with his associates-in-crime viz. Lalji Kanji Hajam (Petitioner in Special Criminal Application No. 755/1962) and Sartan Khengar Rabari (Petitioner in Special Criminal Application No. 794/1962) the petitioner assaults people with knife and intimidates complainants and witnesses with the result that they do not dare to depose against the petitioner or his friends by reason of apprehension on their part as regards the safety of their person or property. The allegations against all these three petitioners are that there were numerous instances in which they had extorted money and eatables from the businessmen of the said locality viz. Sarangpur and nearby areas big and small and even from public servants, under threats of violence or at the point of knife. Thus it was alleged that there were reasonable grounds for believing that each of these three individuals was engaged or was about to be engaged in the commission of offence involving force or violence or offenses punishable under Chapters XVI and XVII of the Indian Penal Code. It was further alleged that they visited hotels canteens and other places of public entertainment and under threats of violence refused to pay the legal dues for the things consumed by them. It was further alleged that they visited cinemas and molested girls and women by cutting indecent jokes at them in public but on account of their hazardous and violent activities the victims of their acts could not dare to complain against them. It was further alleged that they exacted petty supplies from the dealers free of cost and with dire consequences. The notice then alleged that the acts and those who refused to concede to their illegal demands were threatened movements of these individuals were causing or were calculated to cause harm alarm or danger to person or property. It was also alleged that the witnesses to the different instances were not willing to come forward to give evidence in public against them by reason of apprehension on their part as regards the safety of their person or property.

3. As regards the Externment Order against Ambalal Vadilal it first sets out that the materials had been placed before the Deputy Commissioner of Police under six different heads set out in that order. It further says that the Deputy Commissioner of Police had considered the explanation tendered by him and the evidence produced by him and after considering all the materials evidence and the explanation the Deputy Commissioner of Police was satisfied that Ambalal Vadilal Soni is a dangerous and desperate man who is engaged in commission of acts and offences involving assaults extortion etc. which are punishable under Chapters XVI and XVII of the Indian Penal Code and that there were reliable materials to prove the allegations contained in paragraphs (i) to (vi) of the order and further that the movements and acts of Ambalal Vadilal Soni were causing harm alarm and danger to the persons of the locality known as Sarangpur and the round about area within the limits of Kalupur Police Station. It was further alleged in the Externment Order that in the opinion of the Externing Authority witnesses were not willing to come forward to give evidence in public against him by reason of apprehension on their part as regards the safety of their person or property and in these circumstances having been satisfied on the grounds and on the materials as stated above the order externing Ambalal Vadilal Soni from the districts of Ahmedabad City Ahmedabad Rural Kaira and Mehsana for a period of two years was passed.

So far as the notice issued to Sartan Khengar Rabari is concerned the only difference is that the previous convictions and cases in which he was concerned were set out in para 3 of the notice; and previous record was also set out in case of Lalji Kanji Hajam. But apparently as there was no previous history in case of Ambalal Vadilal Soni no such thing was set out in the notice issued against him. As regards the Externment Orders with slight variations the Externment Orders against Sartan Khengar Rabari and Lalji Kanji Hajam are in the same terms as the order against Ambalal Vadilal Soni.

4. One peculiar feature so for as Ambalal Vadilal Soni is concerned is that according to him on the particular day when the notice was fixed for hearing before the Inquiry Officer Shri K.S. Thakar he had taken three witnesses viz. K.T. Desai Principal of Bharati Vidyalaya and residing in Khadia locality Nansha Thakore a social congress worker of Khadia and Dr. Talati practising in Khadia Ward and a Municipal Corporator to give evidence on behalf of Ambalal Vadilal Soni at the hearing before Shri K.S. Thakar. It may also be pointed out that these three individuals have filed affidavits dated September 28 1962 showing that on a particular day in July all three of them had gone to the office if the Superintendent of Police K.S. Thakar who was busy in his work. Mr. Thakar is alleged to have told these three witnesses that it was not necessary for them to wait there for giving evidence and even the certificates given by them or the affidavits made by them would serve the purpose. Relying on these alleged words of Mr. Thakar all these three witnesses are alleged to have gone back and given certificates to Ambalal which have been produced in the inquiry proceedings under Section 59 of the Bombay Police Act. According to all these three individuals whose affidavits are filed in this Court if they had been told that it was necessary to give evidence to the effect that the petitioner was not committing any offence; nor was he harassing people they would also have deposed to the fact that the allegations made against him in the notice under Section 59 of the Bombay Police Act were entirely false. An affidavit dated October 6 1962 has been made by Mr. Thakar and in para 10 of that affidavit Mr. Thakar specifically denies that K.T. Desai 0. S. Talati and N.C. Thakore had ever come to him. He denies that what they have stated in their affidavits is true and he further denies that he had told these three individuals that it was not necessary for them to wait in his office for giving evidence or that even the certificates or affidavits would serve the purpose. Mr. Thakar further denies that on relying on his alleged statements these persons had gone way. Since these are extraordinary proceedings where the matters have to be decided generally on affidavits we do not propose to examine the matter for the purpose of finding out where the truth between these statements lies. The significance of these certificates and the affidavits filed by these three individuals dated September 28 1962 is that in the affidavit in reply made by the Deputy Commissioner of Police in reply to the main petition he has stated as follows:

The nine certificates of good character purported to have been signed by different persons have no evidentiary value in law. The petitioner by his application dated 10-7-62 applied for time to produce these persons as his witnesses. The time was allowed. These witnesses were not present at the next date of hearing i.e. on 12-7-62. The petitioner again applied for time on that day which was allowed; yet the petitioner did not produce them It is also Significant to note that none of these individuals have filed any affidavit in favour of the petitioner testifying to the facts stated in the certificates. Therefore these certificates can have no value and hence 1 have not relied upon them.

The Learned Counsel on behalf of Ambalal has urged before us that we should allow the oral evidence to be led and satisfy ourselves as to where the truth lies between the allegations of W.T. Desai O.S. Talati and N.C. Thakore on the one hand and the denial of the Superintendent O.S. Thakar on the other. But in our view the oral evidence would merely have reproduced the statements which are set out in the respective affidavits and no useful purpose could have been served by allowing oral evidence to be led before us. The certificates have been rejected by the Externing Authority so also the 8 affidavits filed by the different individuals before the Inquiry Officer. According to Mr. Patel the Learned Counsel for Ambalal Soni these pieces of evidence viz. the certificates and the affidavits have been rejected on vexatious arbitrary and unreason- able grounds and there has been a colourable exercise of the power of the externing authority in appreciating the evidence.

Now under the provisions of the Bombay Police Act the externing authority is not a judicial or a quasi-judicial authority and it is his subjective satisfaction that counts in matters of this nature. As has been pointed out by the Supreme Court in one of the earlier cases under the Bombay Police Act this extraordinary power of externing people has been vested by the Legislature in superior officers like the Deputy Commissioners of Police or like the Sub-Divisional Magistrates specially empowered by the District Magistrate so that these superior officers may apply their minds to the facts before them and consider whether a particular individual should be externed from a particular locality and whether the conditions for externment laid down by the legislature under Sections 55 56 or 57 are satisfied or not. It is true that as pointed out by Maxwell on Interpretation of Statutes 11 edn. page 117 where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred the discretion must be exercised honestly and in the spirit of the statute otherwise the act done would not fall within the statute. According to his discretion means it has been said according to the rules of reason and justice not private opinion according to law and not humour; it has to be not arbitrary vague and fanciful but legal and regular to be exercised not capriciously but on judicial grounds and for substantial reasons and must be exercised without taking into account any reason which is not a legal one.

In the Full Bench case of Emperor v. Yarmahomed Ahmadkhan 40 Bom. L.R. 483 it was held at page 493 as follows:

In our opinion it is a well established principle that where an Act of Parliament confers upon an authority power to make an order in certain conditions and it is sought to impose a penalty for breach of an order made by the authority it is incumbent upon the Court hearing the charge to consider whether the order was properly made and to be satisfied on two points: first that the authority has acted reasonably and not capriciously or oppressively and secondly that the conditions imposed by the statute have been observed.

5. That particular case was in respect of a prosecution filed for a breach of an externment order and while considering the question whether the conviction of the accused was proper or not the Pull Bench held that the question whether the order was proper or not is to be examined by the Court hearing the charge and the Court must be satisfied that the authority had acted reasonably and not capriciously. Bearing the observations in Maxwell as also in the Full Bench case in 40 Bom. L.R. 483 in mind we have to consider whether in these three cases the externing authority has acted unreasonably or capriciously. The order of externment in terms states in each of these three cases that whenever certificates were produced or affidavits were produced or other evidence was led before the externing authority by any one of the three proposed externees he has taken all these materials into consideration. As regards the affidavit filed in the case of Ambalal the externing authority has in terms stated as follows:

I have thus carefully considered the defence evidence produced by the petitioner. I was satisfied that the defence evidence was not sufficient to rebut the conclusion arrived at by me from the material discussed above.

The ground given by the externing authority for rejecting the affidavits filed on behalf of the proposed externee was that these affidavits were verbatim except for difference of name and occupation of the deponent. He found it difficult to believe that all the deponents could have identical knowledge about the life and activities of the petitioner and he contended that the deponents had deposed to the facts which would help the petitioner without caring for the correctness of the facts stated in the affidavits. He was thus satisfied that this evidence in the shape of affidavits was untrue and that the deponents were out to help the petitioners and therefore he rejected this evidence. It was alleged before us that this rejection of the affidavits was capricious and mala fide and that the provisions of Section 59 of the Bombay Police Act were rendered nugatory by expecting the proposed externee to lead evidence which would be sufficient to rebut the conclusion arrived at by the externing authority from a perusal of the materials which were put before him or submitted by the Inquiry Officer.

6. In this connection it is to be borne in mind that under Section 59 of the Bombay Police Act before an order inter alia under Section 56 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 tending 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. Now the purpose of examining witnesses and giving an explanation is to show that the allegations made against him are not true and should not be accepted. It has been held in cases under this Act that the proposed externee is not entitled to know the names of witnesses who have made statements against him or who have been examined by the Inquiry Officer acting under Section 59 Sub-section (I) of the Bombay Police Act. That being the case so far as the appreciation of their evidence is concerned it is left entirely to the discretion of the externing authority to find out whether the explanation or the evidence led by the proposed externee is sufficient to meet the allegations which have been made before the externing authority by different persons. It may be that these allegations against the proposed externee may be made in confidence and ex parte and it is open to the externing authority to consider these ex parte statements and ex parte materials provided he is satisfied about the veracity of such materials and such statements. It cannot be said that the appreciation of the evidence by the externing authority in these three cases is capricious or mala fide simply because the externing authority rejected the affidavits filed on behalf of the proposed externees on the grounds which appealed to him It must be borne in mind that the externing authority is not a judicial officer. Moreover once the material allegations are made and once the externing authority is satisfied that certain conclusions based on materials which are acceptable to him can be drawn the only way in which the explanation given by the proposed externee or the evidence given on his behalf can be utilised is to find out whether that explanation or that evidence led on behalf of the proposed externee is sufficient to dislodge the conclusion that can be drawn from the materials placed before the externing authority against the pro- posed externee. In our opinion the procedure followed by the externing authority in appreciating the evidence against the proposed externees was the correct procedure. He first found out whether the materials placed before him against the proposed externee were worthy of credence or not; then he drew certain tentative conclusions and after drawing these tentative conclusions he examined the explanation and the evidence led on behalf of the proposed externee to see whether the tentative conclusions could be dislodged or not. We may point out that a court trying the case against an accused person in a regular manner is also expected by law to follow the same procedures viz. to find out whether the prosecution has established its case against the accused by evidence worthy of credence and having come to the conclusion that the prosecution has discharged its burden the court considers the explanation or the evidence led on behalf of the accused. If the Court is not satisfied by the prosecution evidence then no necessity of looking at the explanation or the evidence led on behalf of the accused would arise in that particular case and the Court would hold that the prosecution has failed to establish its case against the accused. The same procedure appears to have been followed in this case by the externing authority and therefore it cannot be said that the manner of appreciating the evidence and the materials placed before him was capricious or mala fide so far as the externing authority was concerned.

Now in each of these three cases a contention has been urged before us on behalf of the respondents that the petitioners should have availed themselves of the provisions as regards the appeal to the State of Gujarat before approaching the High Court. It is true that provision has been made under Section 60 of the Bombay Police Act for an appeal against the orders of externment passed under Section 55 56 of 57 of the Act but it is to be borne in mind that these orders of externment affect the fundamental rights of citizens particularly the fundamental right of residing in a particular locality or moving about throughout the territory of India in any manner that he pleases. It is true that it has been held in cases under the Income-Tax Act and Sales-Tax Act as also under the Sea-Customs Act that when an elaborate machinery by way of appeal revision etc. has been laid down by a particular enactment so that there is a self-contained Code of different remedies at different levels the person affected must exhaust all the remedies before approaching the High Court for the extraordinary reliefs under Articles 226 and 227 of the Constitution or before approaching the Supreme Court under Article 32 of the Constitution. But these questions under the taxation statutes must be treated on a different footing from the cases where the fundamental rights of citizens are concerned; and the view taken by this High Court consistently has been that where the fundamental rights of citizens are concerned the High Court will entertain the petition irrespective of the question whether all the remedies available to the citizen have been exhausted by him or not. In these circumstances we reject this particular contention urged before us on behalf of the respondent.

7. In all these three petitions it was urged before us that there has been a confusion of the provision of Section 56(a) and 56(b) of the Bombay Police Act and that the confusion has been such that it discloses the non-applicability of mind on the part of the externing authority. In each case when we examine the notice given under Section 59 of the Bombay Police Act we find that there are allegations which fall within the provisions of Section 56(a) as well as Section 56(b) of the Act and that the allegations contained in the notices cover both the requirements of Section 56(b) of the Act. It is not disputed before us and it cannot be disputed that action can be taken against an individual under Section 56(a) or (b) or under both provided that the requirements of these two sub-sections are satisfied in the light of the facts of the particular case. In the externment order in each case the findings which would affect the case of each of these three petitioners under Section 56(b) have been set out by the externing authority. It has also been mentioned that the movements and acts of the externee are causing harm alarm and danger to the persons of the locality known as Sarangpur and round-about area within the limits of Kalupur Police Station. It is clear to us that on the face of the externment order on the materials which the externing authority has found to have been established and proved the two requirements of Section 56(b) are satisfied. It has been alleged that these externees Ambalal Vadilal Soni Lalji Kanji Hajam and Sartan Khengar Rabari in association which each other assault people with knives; that they extort money and eatables from businessmen of the locality known as Sarangpur and round- about within the limits of the Kalupur Police Station; that they visit hotels canteens and other places of public entertainment and under threats of violence refuse to pay the legal dues for things consumed by them. Now all these facts would indicate that the particular individual is engaged in the commission of offence involving force or violence, offences punishable under Chapters XVI or XVII of the Indian Penal Code i.e. the first requirement of Section 56(b) is satisfied; and moreover in the opinion of the externing authority which is a subjective opinion the witnesses are not willing to come forward to give evidence in public against the externee by reason of apprehension on their part as regards the safety of their person or property. Thus it is obvious that both the conditions laid down by Section 56(b) of the Bombay Police Act are satisfied in respect of each of these three externees on the materials which were placed before the particular Police Officer; and therefore if nothing more had been stated the order of externment could have been justified because requirements of Section 56(b) were fulfilled.

In the case of each of these three externees the externing authority has further stated that the acts and movements of the externee are causing harm alarm or danger to the persons of the locality known as Sarangpur and round-about area within the limits of Kalupur Police Station. Apparently this language in this particular sentence is an attempt on the part of the externing authority to indicate that the requirements of Section 56(a) of the Bombay Police Act were also satisfied. When one turns to the text of the section it is obvious that what should appear to the externing authority is that the movements or acts of the externee were causing or were calculated to cause harm alarm or danger to person or property. Now the phrase to person or property is a well-known phrase used by the Legislature to indicate offences against human-body or against property movable or immovable. In Section 56(b) in order to indicate that the witnesses are not willing to come forward the phrase used is safety of their person or property. Thus in the same section the phrase to person or property has been used by the Legislature twice and in our opinion it can only be said to have been used to indicate offences or acts against human-body or against property. It is true that in each of these externment orders there is no reference by the externing authority as to whether the harm alarm or danger is in respect of acts against the human-body or against property But it has been mentioned that that this harm alarm or danger is to the per- sons of the locality known as Sarangpur and round-about area within the limits of kalupur Police Station. It appears to us that this particular portion of the externment order and this particular conclusion drawn by the externing authority cannot fall within the four corners of Section 56(a) and therefore this order cannot be said to have been passed under the provisions of Section 56(a) of the Bombay Police Act. It is not harm alarm or danger to any individuals that is contemplated by Section 56(a) but harm alarm or danger should be in respect of person or property meaning thereby in respect of acts against human-body or against movable or immovable property. The externing authority does not say in the order that in his opinion the movements and acts are causing harm alarm and danger in respect of person or property to the residents or to persons residing in the locality known as Sarangpur and round about area but he merely mentions that these movements and acts are causing harm alarm and danger to the persons of the locality. In our opinion this conclusion cannot justify an order under Section 56(a) of the Bombay Police Act. However on the face of the order the requirements of Section 56(b) of the Bombay Police Act are clearly satisfied; we must therefore regard the conclusion about the movements and acts causing harm alarm or danger to the persons of the locality as redundant and not justifying the order of externment. It is true that such a conclusion has been set out and an attempt has been made to show as if the order is also passed under the provisions of Section 56(a) but since the full requirements of Section 56 are not met by this particular conclusion we hold that each of these three orders of externment is passed under the provisions of Section 56 only and that this particular conclusion though set out in each of these three externment orders and though not capable of justifying the order of externment under any of the provisions of law is a conclusion which has been drawn by the externing authority on the materials placed before him and since that conclusion can be disregarded for the purpose of finding out whether the order of externment is legal or not we disregard that particular conclusion of the externing authority.

8. In this connection reliance has been placed on behalf of the petitioners in these three proceedings on a judgment delivered by a Division Bench of this High Court in Special Criminal Application No. 363 of 1962 (Ahmed Hadu v. K.G.Saraiya) on May 23 1962 One of us was a party to that judgment and there what happened was that the Sub-Divisional Magistrate Nakhatrana who passed the externment order set out in the notice under Section 59 of the Bombay Police Act allegations which were covered by the provisions of Section 56(a) as well as Section 56(b) of the Act. However when he came to pass the order the learned Sub-Divisional Magistrate held that the allegations which he found proved and the materials which he accepted brought the case under Section 56(a) and at the same time he set out the provisions regarding the witnesses not coming forward which falls under Section 56(b). It was in these circumstances that it was held by the Division Bench that the learned Magistrate was not clear in his mind whether he was acting under Section 56(a) or Section 56(b) of the Act and that there was apparent confusion and this confusion clearly showed that the learned Magistrate had failed to apply his mind in passing the order.

In the three cases before us in the present proceedings there is no question of any confusion having been created. So far as the notices were concerned in each case the allegations were set out which would bring the case under Section 56(a) and also under Section 56(b) of the Act. But at the time of passing the order the conclusions reached by the externing authority are referable only to Section 56(b) of the Act and as we have indicated above the sentence relating to acts or movements causing harm alarm or danger is not referable to Section 56(a) of the Act and therefore the judgment of the Division Bench in Special Criminal Application No. 363 of 1962 cannot apply to these three cases.

9. It was urged before us that in the light of the judgment in Special Criminal Application No. 364 of 1961 of a Division Bench of this Court delivered on March 7 1962 (Manila Chakulal v. The State of Gujarat) by Miabhoy J. we should hold that if there was no confusion regarding Section 56(a) and Section 56(b) a different order might have been passed. In that particular case it is to be borne in mind that the main argument before the Division Bench was regarding the notice and regarding the reasonable opportunity being given to the proposed externee in the light of the provisions of Section 59 of the Bombay Police Act. There the Division Bench held that because of the language used in the notice it could not be said that reasonable opportunity was given to the proposed externee. In that case it was alleged that the proposed externee was indulging in anti-social activities and the Division Bench held that use of this phraseology created a confusion as a result of which the notice was bad and therefore the order required to be set aside. In that case it was urged before the Division Bench that though the notice did not comply with the provisions contained in Section 59 so far as the allegations relating to Clause (a) of Section 56 were concerned there was sufficient compliance of Clause (b) of Section 56 and it was urged by the learned Assistant Government Pleader in that case that the Court should uphold the order of the Deputy Commissioner of Police. This submission was rejected by the Division Bench on the ground that it could not be said what the officer would have done if he had held that the allegations in Clause (a) had not been satisfied. It is true it was held that most probably the officer should have still passed an order of externment. But an order of externment does not only contain a direction to remove a person from a particular locality but also contains a direction as to the period of externment. The latter is as much a vital part of the order as the former and it is quite obvious that the finding of the officer that the allegations under both the clauses had come to be proved would affect the order as to the period of externment for which the externee is to be externed. Therefore there was no doubt whatsoever that the whole of the order was vitiated on account of the vagueness contained in the notice pertaining to the allegation in Clause (a) of Section 56 of the Act. Now in the present case on an examination of the materials placed before us we have come to the conclusion that the notice is not bad; nor is the order bad on the ground of confusion between the applicability of the provisions of Section 56(a) and Section 56(b) of the Act and therefore the observations of Miabhoy J. in Special Criminal Application No. 564 of 1961 do not apply to the present case.

10. In each of the three cases the proposed externee has been asked to remove himself not only from the limits of Ahmedabad City but also from the limits of districts of Ahmedabad Rural Kaira and Mehsana also. It was urged before us on the basis of the ruling in Vrajlal Mohanlal v. District Magistrate Rajkot and Anr. 3 d. L.R. 807 at page 812 that there was no material on the face of the externment order to indicate that there was justification for externing the externees from the contiguous districts. At page 812 Shelat J. has observed as follows:

As we have pointed out under Section 56 the District Magistrate has the power to remove or extern the petitioner not only from the district within which the Magistrate has jurisdiction but also from districts contiguous to his own district. The object of externment as provided for under Section 56 is to remove the externee from his own district where he has been carrying on his criminal activities so as to uproot him from his own surrounding and to sever him from his associates thereby reducing the decree and the extent of his activities. But if the Magistrate has reasonable grounds to believe from the data before him that the removal of an externee from his own district would not be sufficient and would not prevent the externee from continuing his criminal activities or from being a menace to the members of the public or to public safety then he has the power to extern him from contiguous districts as well. It is however clear from the provisions of Section 56 itself that such a belief though it might be subjective one must be arrived at from materials and data before the authority viz. whether without removing such a person from contiguous districts as well the danger envisaged by Section 56 cannot be averted. Therefore there must be some indication either by way of reasons or otherwise in the order itself that the authority had reasonable ground to believe that it was necessary to remove such a person from a wider area than his own district.

In the order passed against Ambalal Vadilal Soni in Special Criminal Application No. 791 of 1962 the reasoning set out by the externing authority is as follows:.and whereas there are speedy and easy means of communications and transport from the area of the contiguous Districts of Ahmedabad Rural Kaira and Mehsana to the District of Ahmedabad City....

As regards the order passed against Sartan Khengar Rabari in Special Criminal Application No. 794 of 1962 the same reasoning has been set out for externing him from the contiguous districts. But as regards the order passed against Lalji Kanji Hajam in Special Criminal Application No. 755 of 1962 no such reasoning has been set out. The above judgment in 3 G.L.R. 807 makes it clear that there must be indication in the order itself of the existence of circumstances which led to the satisfaction of the authority that it was necessary to remove the person concerned from a wider area than his own district. As regards two of these orders viz. against Ambalal Vadilal Soni and Sartan Khengar Rabari such an indication has been given in the order itself though no such indication has been given in case of Lalji Kanji Hajam. This judgment of the Division Bench delivered by Shelat J. was considered by two Division Benches of this High Court; first in Special Criminal Application 375 of 1962 by a Division Bench consisting of Miabhoy and Bakshi JJ. decided on 25th July 1962 (Mova Bhala v. The State and Ors.) and the other in Special Criminal Application No. 658 of 1962 by a Division Bench consisting of Miabhoy & Mody JJ. decided on October 5, 1962 (Ramesh Mulshanker v. The State). In the latter of these two Judgments it has been pointed out by the Division Bench that the Court could take a judicial notice of the fact that geographically Ahmedabad City as a District from which a person could be externed is a very small area as also of the fact that it is easy to operate in Ahmedabad from any of these contiguous Districts mentioned in the order; and it was held by Division Bench that in view of the fact that the Ahmedabad City consists of a small geographical area and the Districts of Ahmedabad Rural Mehsana and Kaira are within striking distance it could not be said that the externing authority had not applied its mind in externing the petitioner from the districts of Ahmedabad City Ahmedabad Rural, Mehsana and Kaira. The facts of the present three cases and particularly the case of Lalji Kanji Hajam fall directly within the ratio of the judgment in Special Criminal Application No. 658 of 1962 and we respectfully agree with the observations of the Division Bench in that case. In view of that judgment we hold that the orders of the externing authority are not vitiated as regards the contiguous districts.

11. Now as regards Special Criminal Application No. 755 of 1962 we may point out that in the order of externment the externment authority has asked the externee Lalji Kanji Hajam to remove himself by railway via Bhavnagar; but in the affidavit in reply it has been pointed out that this mention of Bhavnagar came to be made because of the express desire of the externee himself. In the affidavit in reply it has been stated suited as to where he would like to go in case the order was passed against him and he expressed his desire to go to Bhavnagar and hence be was given direction of the route which is for the benefit of the petitioner himself and as the petitioner suggested that he could find his means of livelihood at Bhavnagar. The order came to mention through mistake that he should remove himself via Bhavnagar instead of to Bhavnagar via the next railway station so as to enable him to go to Bhavnagar. In our opinion the explanation given by the externing authority in the affidavit in reply in this connection is adequate and the order of externment cannot be said to be bad as regards Lalji Kanji Hajam merely this ground.

12. It was urged before us that the movements referred to in each of these three extenment orders are different from acts and that so far as these movements are concerned there is no indication in the materials found that their movements sere causing harm alarm or danger. Since we have found that this ground does not satisfy the requirements of Section 5(a) and has to be disregarded it is immaterial that the word movements has been used in that particular portion of each of the externment orders. We do not accept the contention urged on behalf of the petitioners that the materials found to have been established against the externees do not disclose that their movements are causing harm alarm or danger; but it is not necessary for us to express any opinion regarding this particular sentence in the externment order in view of our conclusion mentioned above that Section 56(a) does not apply to these externment orders.

It was urged before us that the grounds must bear some proximity in time to the date when the externment proceedings are initiated. These externment proceedings were initiated towards the end of June 1962 and in each case the relevant notice under Section 59 mentioned that the proposed externee was acting in that particular manner since October 1960 till the time when the notices were issued. Thus it cannot he said that the acts and movements had no proximity in time to June 1962 because in each case the notice alleges that these different acts and movements were from October 1960 till the date of the notice and were thus close in proximity of time to the period when the notices were issued. It is true that under Section56(b) the phraseology used is engaged or about to be engaged and therefore there must be some proximity of time between the acts alleged and the issue of the notices; but in each case the allegation was that these acts had continued from October 1960 till the date of the notice and therefore the proximity of time which is contemplated in In re Moinuddin Abdullamia Koreishi, 50 Bom. L.R. 579; and in In re Govind Pandurang Phalke, 57 Bom. L.R. 957 is properly established in the present case.

13. These are the various contentions and submissions which have been urged before us in these three Special Criminal Applications and in our view no ground has been made out which would justify us in striking down the orders of externment either wholly or partially We therefore hold that these orders of externment were legal and were properly passed under Section 56(b) of the Bombay police Act and arc therefore valid.

The result therefore is that each of these three Special Criminal Applications fails and is dismissed. No order as to costs.


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