SCR.A/168020/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1680 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = SALUBHAI ADAMBHAI SHAIKH - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= = Appearance : MS SUBHADRA G PATEL for Petitioner(s) : 1, MR KP RAWAL, APP for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 22/09/2008 ORAL JUDGMENT 1. By this petition under Articles 226 and 227 of the SCR.A/168020/2008 2/4 JUDGMENT Constitution of India, the petitioner has challenged the order dated 31st May, 2008 passed by the respondent no.2 – Sub- Divisional Magistrate, Mahuva whereby he has directed the petitioner to pay an amount of Rs.20,000/- as surety for good behaviour, in exercise of powers under Section 56(b) of the Bombay Police Act, 1951. 2. The main contention raised in the petition is that the show-cause notice under Section 56(b) was issued against the petitioner calling upon him to show cause as to why he should not be externed for a period of two years from the limits of the districts of Bhavnagar, Amreli, Rajkot, Ahmedabad (City and Rural) and Surendranagar and that no show-cause notice had been issued to the petitioner calling upon him to show cause as to why he should not furnish surety. It was further submitted that Section 56(b) of the Bombay Police Act does not empower the Sub-Divisional Magistrate to direct payment of surety for good behaviour. 3. It was accordingly submitted that the impugned order, being in breach of the principles of natural justice as well as being beyond the powers of the Sub-Divisional Magistrate under Section 56(b) of the Bombay Police Act, is required to be quashed and set aside. 4. From the facts of the case, it is apparent that by the show-cause notice dated 21st January, 2008, the petitioner was called upon to show cause, in the context of four offences registered against him, as to why he should not be externed from the limits of the districts noted hereinabove. Pursuant to the reply given by the petitioner, the Sub-Divisional Magistrate SCR.A/168020/2008 3/4 JUDGMENT did not find it necessary to extern the petitioner. However, vide the impugned order dated 31st May, 2008, the Sub- Divisional Magistrate has directed the petitioner to deposit Rs.20,000/- towards surety for good behaviour for a period of two years. 5. An order passed under Section 56(b) of the Bombay Police Act is amenable to appeal under Section 60 of the Act. However, as held by this court in the case of Hasmukhbhai C. Brahmbhatt vs. Sub Divisional Magistrate rendered on 05th April, 2002 in Special Criminal Application No.4 of 2002, when no order of externment has been passed, there is no order passed in the exercise of powers under Sections 55, 56 and 57 of the Act. When there is no order under those provisions of the Bombay Police Act, the question of filing appeal under Section 60 of the said Act does not arise. The Court, in a similar set of facts, found that in view of the fact that the proceedings were started for externment of the petitioner and the learned Executive Magistrate was satisfied that there was no ground to extern the petitioner, the Executive Magistrate could not have passed the order requiring the petitioner to furnish a surety, as has been done by him. 6. The aforesaid decision would apply on all fours to the facts of the present case. In the present case also, the petitioner had been called upon to show cause as to why he should not be externed, in exercise of powers under Section 56(b) of the Act. The show-cause notice does not call upon the petitioner to show cause as to why he should not be directed to furnish surety. In the circumstances, the order directing the petitioner to furnish surety for good behaviour is violative of SCR.A/168020/2008 4/4 JUDGMENT the principles of natural justice and as such, cannot be sustained. 7. For the foregoing reasons, the petition is allowed. The impugned order dated 31st May, 2008 passed by the learned Sub-Divisional Magistrate, Mahuva in Externment Case No.11 of 2007 is hereby quashed and set aside. Rule is made absolute accordingly. Direct Service is permitted. ( Harsha Devani, J. ) hki