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Kalubhai Rambhai Katariya Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1980CriLJ1238; (1981)GLR5
AppellantKalubhai Rambhai Katariya
RespondentThe State of Gujarat and ors.
Cases ReferredIn Sandhi Mamad Kala v. State of Gujarat
Excerpt:
.....of the witnesses whom he had examined in order to enable himself to effectively represent his case before the externing authority as well as before the appellate authority. 8. we then find in paragraph 2 that the externing authority, after having recited 26 grounds in the impugned order, stated that the petitioner is a strong-headed and anti-social individual and that he was engaged in committing offences-punishable under chapter xii, xvi or xvii of the 'bombay police act'.chapters xvi and xvii referred to in section 56 of the bombay police act, 1951, are those of indian penal code and not of bombay police act. , therefore, that reference to the bombay police act in paragraph 2 of the impugne j externment order clearly indicates non application of mind on the part of the extending..........not be externed irani bhavnagar district and other contiguous districts under section 56 of the bombay police act, 1951. notice to show cause contained as many as 26 allegations against him. the petitioner filed a representation against it and sought an opportunity to examine witnesses. he examined as many as 47 witnesses. thereafter he made an application to summon further witnesses. however, it was turned down. then he applied for time to call those witnesses. that application was also turned down he thereafter applied for certified copies of the evidence of the witnesses whom he had examined. that application was rejected. on 23rd november, 1979, the impugned order of externment was made against him. he did not appeal to the state government but filed this petition.2. mr. raval who.....
Judgment:

S. H. Sheth, J.

1. The petitioner is the Chairman of the P. W. D. Committee of Bhavnagar District Panchayat. He is engaged in the transport business at Dhasa in Bhavnagar District. On 26th February, 1979, the externing authority-respondent No. 2 issued to him notice to show cause why he should not be externed Irani Bhavnagar District and other contiguous districts under Section 56 of the Bombay Police Act, 1951. Notice to show cause contained as many as 26 allegations against him. The petitioner filed a representation against it and sought an opportunity to examine witnesses. He examined as many as 47 witnesses. Thereafter he made an application to summon further witnesses. However, it was turned down. Then he applied for time to call those witnesses. that application was also turned down He thereafter applied for certified copies of the evidence of the witnesses whom he had examined. that application was rejected. On 23rd November, 1979, the impugned order of externment was made against him. He did not appeal to the State Government but filed this petition.

2. Mr. Raval who appears on behalf of the petitioner has raised before us the following contentions:

(i) The petitioner was not given a reasonable opportunity to defend himself;

(ii) the impugned order suffers from non-application of mind; and

(iii) it has been made mala fide.

3. So far as the first contention is concerned, Mr. Raval has presented to us three aspects. The first aspect is that the petitioner wanted respondent No. 2 to summon certain witnesses after he had examined 47 witnesses in his defence. that application was turned down. We do not find anything in the Bombay Police Act which casts an obligation upon the externing authority to summon any witness for the proposed externee. The proposed externee against whom show-cause notice has been issued does not have any right under the Bombay Police Act which requires the externing authority to summon any witnesses for him. The scheme of externment as laid down in the Bombay Police Act is far different from the scheme of an ordinary criminal prosecution. Therefore, the first aspect which Mr. Raval has canvassed before us cannot be upheld.

4. The second aspect which he has raised before us is that the petitioner applied for certified copies of the evidence of the witnesses whom he had examined in order to enable himself to effectively represent his case before the externing authority as well as before the appellate authority. We find that under the Bombay Police Act, there is no obligation on the part of the externing authority to give certified copies of the evidence of the defence witnesses examined by the proposed externee. Indeed, the evidence which he leads is known to him. He knows what the witnesses produced by him have deposed to in the examination-in-chief and what they have deposed to in the cross-examination. However, though there may not be a strict obligation on the part of the externing authority to give copies of the evidence of defence witnesses to the proposed externee, in our opinion, it was the duty of the externing authority to tell the proposed externee that if he so desired, he could inspect the record of the evidence of the defence witnesses in order that he might fully apprise himself of what they had deposed. In the instant case, no such opportunity was given to the petitioner. Inasmuch as no such opportunity was given to the petitioner, it can be certainly said that the petitioner was prejudiced in defending himself before the externing authority. Looked at from that angle, the impugned order of externment indeed suffers from a fatal infirmity.

5. The third aspect which Mr, Raval has raised before us is that the petitioner had applied for time to call his witnesses and that he was not given an opportunity. Under Section 59 of the Bombay Police Act, it is the bounden duty of the externing authority to examine all the witnesses who are produced by the proposed externee. However, in this case, the petitioner was given an opportunity to examine as many as 47 witnesses. Secondly, the dates of hearing which were fixed for the purpose were as many as 10. that is what we find in paragraph 10 of the affidavit of Mr. P.B. Chhaya, Sub-Divisional Magistrate, Palitana. The proceedings under the Bombay Police Act are intended to be quickly finished so that the person who poses danger to society in that area can he removed at an early date. Therefore, if the petitioner could not produce other witnesses, after he had examined 47, on those 10 dates of hearing, it cannot be said that he was not given a reasonable opportunity to defend himself. The third aspect which Mr. Raval has raised, therefore, fails and is rejected.

6. The first contention raised by Mr. Raval succeeds to the extent that petitioner was denied a reasonable opportunity of inspecting the record of the evidence of defence witnesses examined by him.

7. The second contention which Mr. Raval has raised relates to non-application of mind. The impugned order contains as many as 26 grounds on which the externing authority relied in order to extern the petitioner. Out of 26 grounds, 24th ground when translated into English reads as follows:

About three months ago, you and your companions went to a person in village Chavad for the purpose of bringing about a compromise.

This ground does not show that the petitioner had acted in the manner specified' in Section 56 of the Bombay Police Act. Anyone can approach any other person for bringing about a compromise of the dispute which he may have with him or the person approached may have with some other individual. Such an act of movement will not, within the meaning of' Section 56 of the Bombay Police Act,, 1951, cause or will be calculated to cause-alarm, danger or harm to person or property, nor can such a movement amount! to either an engagement or the probability of an engagement in the commission, of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian. Penal Code. It is clear, therefore, that sofar as ground No. 24 was concerned, the externing authority did not apply its mind and did not find out whether it was one upon which reliance could be placed within the meaning of Section 56 for externing the petitioner.

8. We then find in paragraph 2 that the externing authority, after having recited 26 grounds in the impugned order, stated that the petitioner is a strong-headed and anti-social individual and that he was engaged in committing offences-punishable under Chapter XII, XVI or XVII of the 'Bombay Police Act'. Chapters XVI and XVII referred to in Section 56 of the Bombay Police Act, 1951, are those of Indian Penal Code and not of Bombay Police Act. In fact, Bombay Police Act, 1951, does not have Chapters XVI and XVII. It is clear, therefore, that when the externing authority wrote the impugned order, he did not apply his mind to what he was doing and wrote out the order absentmindedly. Mr. Nanavaty has brought to our attention the aftidavit-in-reply made by the externing authority in which he has stated that reference to Bombay Police Act in paragraph 2 of the impugned order was made by mistake and that the correct reference should be to Indian Penal Code. We are not inclined to take into account a sub-sequent and later explanation in order to cure a vital defect bearing on non-application of mind because to do so is to unduly deprive a citizen of his liberty. We have no doubt in our minds;, therefore, that reference to the Bombay Police Act in paragraph 2 of the impugne J externment order clearly indicates non application of mind on the part of the extending authority to what it was doing. These two facts in an otherwise long and carefully drafted order clearly show that the externing authority had not applied its mind as carefully and as meticulously as it should do when it makes an order under Section 56 depriving a citizen of his liberty. Therefore, in our opinion, the impugned order of externment suffers from non-application of mind.

9. Mr. Raval has further argued that the impugned externment order does not give reasons which enabled the externing authority to come to the conclusion that the petitioner should be externed from Bhavnagar District and other contiguous areas. The grounds stated in the externment order themselves constitute reasons-They need not be supported by details. In Sandhi Mamad Kala v. State of Gujarat (1973) 14 Guj LR 384, a Full Bench of this Court has laid down that the externing authority is not bound to give reasons in support of the grounds upon which it relies for making an externment order. It is sufficient if the grounds are stated. This Court has also laid down that the power of externment conferred upon the externing authority under Section 56 should not be exercised blindly because the safety of a citizen lies only upon procedural safeguards. A citizen who is sought to be externed does not know what material is on record against him.

10. In that view of the matter, the procedural safeguards to protect the liberty and safety of citizen assume a very great significance. Therefore, if those safeguards have not been properly complied with, the externment order must be held to be invalid.

11. In the instant case, the impugned externment order does not suffer from any infirmity on this ground.

12. The petitioner has been externed not only from Bhavnagar District but also from Amreli, Rajkot and Ahmedabad (Rural) Districts. It is not in dispute that Amreli, Rajkot and Ahmedabad (Rural) Districts are contiguous to Bhavnagar District.

13. Mr. Raval has further argued that the impugned order was made mala fide because the petitioner and those who sought his externment belonged to different political groups. Since we are quashing the impugned externment order on the grounds stated above, it is not necessary for us to enter into these details. We may note in this context that two Ministers-

Mr. Popatlal Vyas, Home Minister, and Mr. Lallubhai Sheth, Minister for Civil Supplies, have filed their affidavits in this, case.

14. In view of the reasons stated aboves we are unable to uphold the impugned externment order. We, therefore, allow the petition, quash the impugned order and make Rule absolute.


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