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ismail Mahmmed Shekh Vs. Sub-divisional Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR910
Appellantismail Mahmmed Shekh
RespondentSub-divisional Magistrate and anr.
Cases ReferredPandharinath v. State of Maharashtra
Excerpt:
- - (1) you have established reign of alarm and danger amongst poor adivasi people viz. (3) you have indulged in the activity of extorting moneys from innocent, poor and agriculturist public under pressure and coercion and giving them beatings. consequently, the petitioner would never know as to for which period he was required to defend and that really prejudiced the petitioner and hence the externment order passed on such a vague notice must necessarily fail. it must be pointed out that so far as the main allegations contained in the notice are concerned, they clearly fall within the nature of the offences listed in paragraph 5 of the externment order and the externing authority has mentioned that offences registered against the petitioner are under sections 324, 327, 326, 323, 324.....s.b. majmudar, j.1. in this petition under articles 226 and 227 of the constitution the petitioner has challenged an order passed by the sub-divisional magistrate, dabhoi on june 25, 1984 directing the petitioner to be externed as per the provisions of section 56 of the bombay police act, 1951 from the city of vadodara and the contiguous districts of vadodara, bharuch, panchmahals and kheda for a period of one year. he has also challenged the appellate order passed by the deputy secretary, home department (special), government of gujarat, dismissing the petitioner's appeal against the impugned externment order under section 60 of the bombay police act.2. before we mention the main grievance voiced by the learned counsel for the petitioner against the impugned order, it is necessary to set.....
Judgment:

S.B. Majmudar, J.

1. In this petition under Articles 226 and 227 of the Constitution the petitioner has challenged an order passed by the Sub-Divisional Magistrate, Dabhoi on June 25, 1984 directing the petitioner to be externed as per the provisions of Section 56 of the Bombay Police Act, 1951 from the city of Vadodara and the contiguous districts of Vadodara, Bharuch, Panchmahals and Kheda for a period of one year. He has also challenged the appellate order passed by the Deputy Secretary, Home Department (Special), Government of Gujarat, dismissing the petitioner's appeal against the impugned externment order under Section 60 of the Bombay Police Act.

2. Before we mention the main grievance voiced by the Learned Counsel for the petitioner against the impugned order, it is necessary to set out relevant introductory facts. The petitioner is a permanent resident of village Amroli in Nasvadi Taluka of Vadodara District. He is having agricultural land on the outskirts of the said village. The Sub-Divisional Magistrate, Dabhoi, in exercise of his power under Section 59 of the Bombay Police Act, issued a show cause notice to the petitioner on February 1, 1984 calling upon him to show cause against the proposed externment order which was sought to be passed against the petitioner on the basis of allegations mentioned in the said show cause notice. As the allegations made in the show cause notice have been made the subject matter of a serious controversy by the Learned Counsel for the petitioner in support of his diverse contentions, it will be profitable to extract the said allegations contained in the show cause notice at this stage. The allegations run as under:

(1) You have established reign of alarm and danger amongst poor Adivasi people viz. Tadvi, Bhil, Koli and Rathwa and if they do not do labour for you, you give beatings to them and snatch away their ornaments and you are acting despotically in Amroli and areas around.

(2) Occasions have taken place when you have molested and disreputed females of Amroli and areas around; and under the threat of violence, you are misbehaving with and molesting the females.

(3) You have indulged in the activity of extorting moneys from innocent, poor and agriculturist public under pressure and coercion and giving them beatings.

(4) Incidents have taken place when you have, by illegal depolism caused harm to the properties and robbed the passersby and you beat innocent persons of the vicinities around and establish fear by your violent acts.

You are committing acts mentioned in paras (1), (2), (3) and (4) above and the witnesses to the abovesaid incidents are not willing to depose against you in public under the apprehension of fear to the safety of their persons and properties.

When the petitioner was served with the aforesaid show cause notice, he joined issues on the allegations made against him and filed his detailed written reply dated March 13, 1984 before the externing authority. Copy of the said reply is at Annexure 'C' to the petition. Thereafter the externing authority held inquiry as per the provisions of Section 59 of the Act. The petitioner was permitted to appear through his Learned Counsel. In support of his defence, he also examined diverse witnesses. Ultimately the Sub-Divisional Magistrate, Dabhoi passed the impugned order on June 25, 1984. The petitioner carried the matter in appeal. The said appeal came to be dismissed on November 12, 1984 by the appellate Authority. It is under these circumstances that the petitioner has come to this Court by way of this writ petition.

4. Now is the time for us to note the main contentions canvassed by Mr. H. L. Patel, learned advocate for the petitioner in support of the petition:

(1) The order of externment, as passed by the externing authority and as in turn confirmed by the appellate authority, is null and void as it travels beyond the allegations made in the show cause notice against the petitioner. Mr. Patel had two main grievances to highlight in support of this contention. Firstly he submitted that in the allegations found in the show cause notice it was mentioned that witnesses to the incidents mentioned in the show cause notice were not willing to depose against the petitioner in public while the externment order mentions that in Naswadi Police Station offence punishable under Sections 324, 327, 326, 323, 324, 114 of the Indian Penal Code has been registered against the petitioner. This part of the externment order travels beyound the allegations in the notice which do not contain even a germ about registration of any offence before any police station and to that extent the externment order travels beyond the show cause notice. In the second place, in support of the very first contention Mr. Patel submitted that the allegations in the show cause notice have mentioned that no witnesses are willing to depose against the petitioner in public while in paragraph 5 of the externment order the externing authority has held that nobody is coming forward to file complaint against the petitioner on account of apprehension in mind of the safety of person and property. Mr. Patel submitted that while the allegations in the show cause notice nowhere mention that complaints are not filed against the petitioner on account of apprehension in the mind of the public, the externment order does find to that effect and to that extent the externment order travels beyond the show cause notice. It is on this twine contention that Mr. Patel submitted that, the externment order travels beyond the show cause notice and is null and void as it has deprived the petitioner of a reasonable opportunity to defend against the concerned allegations which have ultimately culminated into the impugned externment order.

(2) The second contention of Mr. Patel in support of the petition is that the externment order involves inconsistent findings on the part of the externing authority. In support of this contention Mr. Patel submitted that in paragraph 5 of the externment order, the externing authority has found that nobody was coming forward to file complaint against the petitioner on account of apprehension in their mind of the safety of their person and property while in the very next line the externing authority has noted regarding registration of offence under diverse sections of the Indian Penal Code against the petitioner in Naswadi Police Station. This, in the submission of Mr. Patel, amounted to total non-application of mind on the part of the externing authority and showed utter confusion which permeated through the exercise undertaken by the externing authority while it came to such inconsistent finding and that vitiated the order.

(3) Mr. Patel next submitted that in any case the show cause notice, Annexure A-B, is vague from two angles. Firstly, the allegations in the show cause notice nowhere mention as to for which period the petitioner was alleged to have indulged in the so called nefarious activities listed in the show cause notice. Consequently, the petitioner would never know as to for which period he was required to defend and that really prejudiced the petitioner and hence the externment order passed on such a vague notice must necessarily fail. The Second aspect of vagueness highlighted by Mr. Patel is to the effect that in allegation No. 1 it is mentioned that the petitioner is acting despolitically in Amroli and areas around. Similarly in allegation No. 2 it is mentioned that the petitioner had molested and misbehaved with females of Amroli and areas around. In allegation No. 4 also, submitted Mr. Patel, there is a similar infirmity when the petitioner is alleged to have beaten innocent persons of the vicinities around. According to Mr. Patel 'areas around' are words which introduce total vagueness in the show cause notice and would keep the petitioner guessing as to what is the exact allegation against him about his alleged nefarious activities qua the given area.

7. So far as the first contention is concerned, the show cause notice points out four allegations regarding obnoxious activities of the petitioner in village Amroli and areas under Naswadi Taluka. It is true that the allegations do not mention about registration of any offence in any particular police station. It is equally true that in the order of externment it has been mentioned in paragraph 5 that in Naswadi police station offence punishable under Section 324, 327, 326, 323, 324, 114 I.P.C. has been registered against the petitioner. How ever, the moot question is as to whether non-mentioning of the registration of this offence in the police station initially in the show cause notice, has any material bearing on the legality of the externment order. It must be pointed out that so far as the main allegations contained in the notice are concerned, they clearly fall within the nature of the offences listed in paragraph 5 of the externment order and the externing authority has mentioned that offences registered against the petitioner are under Sections 324, 327, 326, 323, 324 and 114 of the Indian Penal Code. The nature of the offences and the material allegations regarding them are clearly stated in allegation Nos. 1 to 4 as pointed out to the petitioner in the show cause notice. Mr. Patel also fairly stated that mere non-mentioning of the sections of the Indian Penal Code which would cover the concerned alleged offences would not make the allegations in any way vague or irrelevant. But his main grievance was that registration of criminal case for such offences in Naswadi police station is not mentioned in the notice and to that extent the observations made by the exteming authority in paragraph 5 of the externment order travel beyond the show cause notice. That is the first plank of the first ground canvassed by Mr. Patel. It is not possible to agree with the said contention of Mr. Patel for the obvious reason that the main allegations of offences regarding person and property of the victims of the petitioner's acts are clearly mentioned in the four allegations in the show cause notice. Whether these offences fall in one section or another of the Indian Penal Code would be a question of legal inference from the main allegation mentioned regarding the alleged offences and merely because sections are not mentioned, it would not have any vitiating effect nor will it introduce any infirmity in the ultimate externment order and as stated earlier, Mr. Patel had no grievance about it. But he submitted that at least the show cause notice could have shown that such criminal cases were registered in a particular police station and if that was shown in the show cause notice, the petitioner could have pointed out to the externing authority during the course of inquiry that no such offences have been registered or if registered what was the course followed pursuant to the said registration of offence and where the matter stood. In our view, non-mentioning of the registration of the offence in a particular police station in the show cause notice cannot be said to be an infirmity which would result in the externment order being branded as travelling beyond the show cause notice. All that Section 59 provides is that before an order under Section 55,56 or 57, as the case may be is passed against the concerned proposed externee, the competent authority has to inform the party in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. General nature of material allegations would obviously relate to the type of obnoxious activities which the proposed externee is said to have indulged in. Whether such obnoxious and illegal activities which amount to offences under the Penal Code had culminated into any registration of offence in a particular police station can by no stretch of imagination, be said to be any material particular of a general nature which was required to be mentioned in the notice as per the requirements of Section 59. Consequently, even if the externing authority, in the light of the evidence led before it, found that an offence was actually registered in the Naswadi police station against the petitioner for the alleged acts, the details of which were already mentioned in the show cause notice, it cannot be said that he had arrived at any finding on any material particulars which had travelled beyond the nature of the show cause notice contemplated by Section 59. The said finding, if at all, can be treated as incidental which had no direct impact on the legality and competence of the externment order. The externment order has to be based on the finding that the movements or acts of the person are causing or calculated to cause alarm, danger or harm to person or property or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give guidance in public against such person by reason of apprehension on their part as regards the safety of their person or property. This is the only requirement of Section 56 read with Section 59(1) of the Act. The externment order in question is passed under Section 56 of the Act against the petitioner. The basic requirements of the aforesaid provisions have been squarely met and, therefore, mentioning of Naswadi police station where the offences are registered, as found in paragraph 5 of the extexrnment order, cannot be said to be reflecting any Vital extraneous circumstance which acts beyond the basic framework of the show cause notice and has any vitiating effect. Thus the first plank of the first ground canvassed by Mr. Patel does not support his submission at all.

8. Next we turn to the consideration of the second grievance which Mr. Patel made in support of his first ground, namely, that the externment order travels beyond the show cause notice. He submitted that the show cause notice alleged that witnesses are not willing to depose against the petitioner in public while the externing authority, in paragraph 5 of the order found that nobody is coming forward to file complaints against the petitioner on account of apprehension in their mind of the safety of their person and property. Mr. Patel tried to spell out an inconsistency between the aforesaid two recitals found in the show cause notice on the one hand and finding of the externing authority in the order on the other and to that extent, according to Mr. Patel, there was inconsistency between the two. In our view, the alleged inconsistency as tried to be spelt out by Mr. Patel is more imaginary than real. The allegations in the notice clearly state that witnesses to the aforesaid incidents were not willing to depose against the petitioner. Incidents were clearly mentioned and the victims of such incidents were also mentioned in the allegations and when it was stated that witnesses were not coming forward to depose against the petitioner it was clear that those who can have anything to say about the petitioner's alleged nefarious activities were not willing to say it in open. That would obviously cover those who might be prospective complainants against the petitioner and who might have suffered at his hands on account of the alleged activities listed against the petitioner in the show cause notice. There is no vital difference between witnesses who might depose and the complainants who might have to say anything against him for the very same alleged activities on account of alleged fear of the petitioner. It is obvious that even a complainant can be a witness and in addition there can be other witnesses who can support him. The allegations contained in the notice are more general in nature while the findings of the externing authority recorded after evidence was recorded before him, to the effect that nobody was coming forward to file complaint against the petitioner on account of apprehension in their mind of the safety of their person and property, can be said to be fully covered by the general nature of material allegations regarding witnesses not coming forward to depose against the petitioner as found in the show cause notice and, therefore, it cannot be said that the finding of the externing authority to that effect in any way travels beyond the show cause notice. That disposes of the second leg of the argument of Mr. Patel in support of his first contention.

10. That takes us to the last contention canvassed by Mr. Patel. He submitted that the show cause notice is vague on two grounds as already mentioned by us while listing the third ground canvassed by Mr. Patel. Before we deal with this contention it is necessary to keep in mind the statutory requirements of Section 59 of the Act. We have already noticed earlier that all that Section 59 requires the authority to do is to inform the proposed externee in writing of the general nature of the material allegations against him. The requirement of Section 59(1) and the nature of the show cause notice which can be served upon the proposed externee are questions which no longer are res integra. We may refer to the Full Bench judgment of this Court in the case of Sarjubhaiya v. Dy. Commissioner of Police reported in XXV (1) G.L.R. 538. The Full Bench consisting of P.S. Poti, C. J., myself and I. C. Bhatt, J., speaking through P. C. Poti, C.J. considered the scheme of the Bombay Police Act in the light of series of Supreme Court judgments on the point and took the view that question of vires of the aforesaid provisions could not be gone into by this Court in view of the decided judgments of the Supreme Court on the point. So far as requirements of the show cause notice to be issued to the proposed externee under Section 59 of the Act were concerned, two judgments of the Supreme Court were noticed by the Full Bench in paragraph 11 of the report. The first judgment of the Supreme Court was in the case of State of Gujarat and Anr. v. Mehbubkhan AIR 1968 SC 1468. In that case it was contended before the Supreme Court that the notice given did not specify the particulars. Nevertheless, the Court, speaking through Vaidialingam, J. reversing the judgment of this Court held the notice to be good enough. While holding so, the following pertinent observations were made by the Court:

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 pick pockets' it is 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 emphasised that when he has 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 fide 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. The allegations made in the notices, issued under Section 59, as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them, in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained.

Thereafter the Full Bench referred to a later judgment of the Supreme Court in the case of Pandharinath v. State of Maharashtra AIR 1973 SC 630. The legal requirements of a notice under Section 59 read with Section 56 were considered by the Supreme Court therein and it was observed in paragraph 9 of the report as under:

A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the showcause notice were to funish to the proposed externee concrete data like specific dates of incidents or the names of persons involved in those incidents, it would' be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence.

In the light of the aforesaid settled legal position, therefore, it is obvious that the show cause notice to be proposed externee under Section 59 read with Section 56 is not expected to be given all detailed particulars to the proposed externee. Otherwise it would frustrate the very exercise required to be undertaken in public interest against the proposed externee. All that is required to be seen is whether the allegations conveyed to the proposed externee sufficiently indicate to him the material particulars of allegations of general nature.

12. Having prefaced as aforesaid, we may now proceed to deal with the twine grievances can vassed by Mr. Patel against the show cause notice. Mr. Patel submitted that the allegations do not contain the starting point of the period from which the petitioner is alleged to have indulged in the alleged nefarious activities. Mr. Patel was right when be contended that the starting point is not mentioned. However, the question is whether the petitioner had sufficient notice about what was being alleged against him. The preamble of the allegations clearly points out against him that it was alleged against him that he was committing acts involving violence and by creating an atmosphere of fear and terror, he had committed and has been committing acts listed in the show cause notice. The preamble, therefore, makes it clear that the alleged acts listed at serial Nos. 1 to 4 in the show cause notice clearly pointed out to the petitioner that these acts were being committed by him round about the time when the show cause notice was issued to him. The date of notice is February 1, 1984. It is, therefore, obvious that the petitioner was given sufficient indication that by the time he was served with the show cause notice it was alleged against him that he was actually involved in commission of acts listed in the notice. May be, the starting point of the alleged activities was not mentioned in the allegations. However, in the light of the preamble to the list of allegations it can easily be visualised that sufficient indication was given to the petitioner as to what was the charge. He was called upon to show cause and to put forward his defence to the said allegations that he was actually indulging in nefarious activities as listed in the allegations. That would naturally mean that the said activities were being continued by the petitioner round about the time he was served with the show cause notice. Consequently even though the whole period from the beginning was not mentioned it would not have any visiting effect on the show cause notice looking to the entire context in which allegations were couched especially in the light of the preamble to the allegations. It is pertinent to note in this connection that in the entire petition no such grievance is made by the petitioner. But even that apart, the petitioner has given a detailed written reply to the show cause notice. There also he has made no grievance that he was kept guessing as to form what period he had started nefarious activities and that he was in any way prejudiced by that. It is obvious that vagueness of allegations, if at all, can be pressed in service to demonstrate that because of vagueness the petitioner did not get reasonable opportunity to put forward his defence as guaranteed under Section 59 of the Act. When no such prejudice is even alleged much less demonstrated to have taken place, it is too late for the petitioner to submit for the first time at the stage of arguments before us that because of vagueness he had been prejudiced in any way and, therefore, the externment order is bad. 'In our opinion, the nature of the allegations as they are mentioned in the show cause notice clearly indicates a nexus of the petitioner's alleged activities with the time in presence when he was served with the show cause notice and that unformed him sufficiently about the nature of the alleged activities which he was alleged to be committing at the time when the notice was served and that in that view he led his defence. The first limb of the petitioner's third submission on the ground of vagueness, therefore, cannot be accepted.

13. That takes us to the second limb of the third contention canvassed on the aspect of vagueness. Mr. Patel submitted that at least in two allegations it was mentioned that the petitioner was carrying on the alleged obnoxious activities in Amroli and areas thereabout and that had really confused the petitioner and had kept him guessing as to what was alleged against him. Even this contention cannot be sustained on the facts of the case. In the preamble to the allegations it is stated that the petitioner was committing violent acts as listed below it in village Amroli and areas under Naswadi Taluka. It is not in dispute that village Amroli is situated in Naswadi Taluka. Thus, the petitioner was informed that the allegations against him were that he was indulging in the listed obnoxious activities in Amroli village and in areas under Naswadi Taluka. In fact the petitioner had well understood the show cause notice as is seen from the written reply filed by him in response to the show cause notice. In paragraph (6) of the reply. Annexure 'C', this is what the petitioner has stated before the externing authority in reply to the show cause notice 'I the opponent do not admit the fact that I have been involved in the activities of terror and in creating the atmosphere of terror in the areas of Amreli and Naswadi Taluka as alleged in your said notice'. Thus, the petitioner very well understood the nature of the show cause notice and what was alleged against him. He realised that he was called upon to show cause why he should not be externed on account of his alleged nefarious activities listed in the show cause notice which he is said to have committed in Amroli and Naswadi Taluka. There was, therefore, no question of the petitioner being prejudiced by the use of the words 'Arnroli and areas around' in allegations Nos. 1, 2 and, 4 as these allegations will have to be read in the light of the preamble to the allegations which were well understood by the petitioner as seen above. Paragraph 6 of the petitioner's reply to the show cause notice clearly indicates that he was called upon to show cause why he should not be externed on account of his alleged illegal activities not only in Arnroli village but in Naswadi Taluka itself which obviously would include areas round about Amroli village in the same taluka. Consequently, the question of the petitioner being prejudiced on account of the alleged vagueness cannot be sustained. Even that apart, the petitioner in. support of his defence has examined eight witnesses before the externing authority. These witnesses have been listed in the written reply and the list shows that witness Nos. 1,2.3,4,5,6 and 7 were residing in different villages which were admittedly in Naswadi Taluka. Only witness No. 8 was from Arnroli itself. Thus, the petitioner well understood the nature of the allegations made against him and having realised that the externing authority proposed to extern him on the allegation that his obnoxious activities were spread over in different villages of Naswadi Taluka, he examined witnesses from different villages of Naswadi Taluka in support of his case against the proposed externment. If the petitioner would have understood the show cause notice to mean that his alleged nefarious activities were confined to only Arnroli village and not to any other part of Naswadi Taluka, he would obviously not have examined witnesses from different villages of the said taluka. Consequently, it cannot be said that in any way the petitioner was kept guessing or was kept in dark by the externing authority and that he did not get reasonable opportunity to defender that he was in any way prejudiced on account of the use of the words 'Amroli and areas around' in the concerned allegations to which we have made a detailed reference above. Consequently, even the second limb of the grievance voiced by Mr. Patel in support of his third contention about vagueness of the notice is also found to be without any substance and it has to be rejected.


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