IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 74 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAKESH @ MUNNO BACHU KOLI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 74 of 2003 MR HRIDAY BUCH for Petitioner No. 1 DHARMESH D NANAVATY for Petitioner No. 1 MS MITA PANCHAL Ld. APP for Respondent No. 1 RULE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 25/09/2003 ORAL JUDGEMENT By way of filing this special criminal application, the petitioner has challenged the order passed by the Sub Divisional Magistrate, Junagadh on 4.10.2002 externing the petitioner from Districts of Junagadh, Amreli, Porbandar, Rajkot City and Rajkot (Rural) in exercise of powers conferred upon him vide sec. 56 of the Bombay Police Act, 1951. The facts leading to filing of this application reveal that on 6.8.2002 Sub Divisional Magistrate, Junagadh was pleased to issue a show cause notice to the petitioner under sec. 59 of the Bombay Police Act. In the said notice, it was alleged that the petitioner was head strong person. It was also alleged that off and on the petitioner was in habit of picking quarrels with innocent citizen. The petititoner was also in habit of using force in public. The public order is thereby disturbed and danger and fear is created amongst the common citizen. The activities, according to the allegations made in notice were carried on by the petitioner in the city of Junagadh in the area of Sukhnath chowk, Girnar Darwaja, Kalva chowk, Mandavi chowk and Diwan Chowk. According to the allegation, these areas of the Junagadh city are heavily populated and in these areas by using force and threatening, the petitioner used to extort amount from the common citizen. It was also alleged that the petitioner was arranging Gangs and pressing himself leader of the Gang carrying out nefarious activities with the weapons like Sword, Knife etc. It was also alleged that due to fear and terror created by the petitioner, no citizen came forward to offer his complaint or to give evidence. It was also contended in that notice that, in all, three offences came to be registered against the petitioner at Junagadh A-Division Police Station on 5.8.2000, 13.1.2001 and 28.2.2001. The first offence came to be registered under sec. 143, 147, 148, 504, 506(2), 427 of IPC. The second offence came to be registered under sec. 324, 323, 506(2) of IPC, and third offence came to be registered against the petitioner under sec. 148, 149, 326 and 452 of IPC. It was also alleged that due to fear and terror created by the petitioner and since the witnesses have feeling of insecurity, they did not come forward for giving any evidence against the petitioner. It was also alleged that therefore, the petitioner was required to be removed not only from the district Junagadh, but from the adjoining districts i.e. Amreli, Porbandar, Rajkot city and Rajkot (Rural). It was further alleged that in this days of speedy communication and transportation, if the petitioner is not removed even from the adjoining districts of district Junagadh, the petitioner was likely to be indulged in the said criminal anti social activities in the adjoining districts. The notice directed the petitioner to appear before the Sub Divisional Magistrate, and also afforded an opportunity to offer explanation, if any, to the notice issued. In response to the notice, the petitioner appeared before the ld. Sub Divisional Magistrate, Junagadh, tendered his explanation in writing, led evidence of two witnesses and produced on record credentials and testimonial of his good behavour. While on complainant side, complainant one Mr. SK Rathod, Police Inspector, A-Division Police Station, Junagadh was examined. From the above, after taking into consideration the complaint, the record produced by the complainant,the evidence of comlainant, statements of witnesses taken in-camera, written reply of the petitioner, the ld. Sub Divisional Magistrate came to the conclusion that the petitioner was in habit of committing the offences mentioned under Chapter-16 and 17 of the Indian Penal Code and, thereby the petitioner has caused damage to the public. His anti social activities spread in a adjoining areas also. Even after taking preventive measures, illegal activities of the petitioner could not be stopped and, therefore, the ld. Sub Divisional Magistrate passed the impugned order under sec. 56(B) to remove the petitioner from the District of Junagadh, Amreli, Porbandar, Rajkot city and Rajkot (Rural) for two years. The said order is in challenge in this special criminal application. Ld. advocate Mr. HC Buch for the petitioner and ld. APP Ms. Panchal for the respondents were heard at length. Ld. advocate for the petitioner contended that the notice under sec. 59 of the Bombay Police Act is vague and bad in law to the extent that the period for which the petitioner carried on his illegal activity is not mentioned resulting in submitting proper explanation by the petitioner before the Sub Divisional Magistrate, Junagadh. It was also contended that the petitioner was ordered to be removed from the adjoining districts of district Junagadh by the impugned order. It was contended that the nexus of the petitioner with the above said adjoining districts in respect of his illegal activities could not be found from the record and that is only a subjective satisfaction of the authority contrary to law. According to the ld. advocate, the order requires to be quashed on this ground. It was also contended that the authority which passed the order observed that the witnesses out of fear of the petitioner could not come forward to give evidence. It was also contended that the authority ought to have relied upon the some objective materials in respect of this conclusion which is not referred by the authority concerned. It was also contended lastly that the explanation offered by the petitioner and the defence which had been led has not at all been considered by the authority concerned. It was, therefore, urged that the order impugned of externment is required to be quashed. On the other hand, Ms Panchal ld. APP controverting the contentions raised, submitted that the authority took into consideration the speedy means of communication and transport of the present era to arrive at subjective satisfaction that the petitioner was required to be removed from contiguous districts as has been done. It was urged that irrespective of the other districts, the petitioner was required to be removed from the Junagadh district on account of his illegal activities as found by the authority concerned from sufficient material. My attention was drawn to the criminal cases registered against the petitioner. It was contended that the whole record in respect of these criminal cases registered against the petitioner was placed before the Sub Divisional Magistrate revealing nefarious activity of the petititoner. It was therefore, contended that the illegal activity of the petitioner is revealed through the crimes registered against the petitioner. The reliance is placed on a decision of the Apex Court in the matter of Gazi Saduddin vs. State of Maharashtra & Anr., as reported in 2003(6) Supreme Today, p. 34. From the rival contentions, it appears that the two main contentions raised on behalf of the petitioner and controverted by ld. APP are required to be discussed. The first contention is regarding the vagueness of the notice. Undoubtedly, the very purpose of issuance of notice under sec. 59 of the Bombay Police Act is to offer an opportunity to the petitioner to explain the allegations levelled against him. True, it is that notice should contain general nature of the material allegations against the proposed externee and this is provided to give the proposed externee a reasonable opportunity of tendering the explanation regarding the allegations. Each details in respect of the allegations is not required to be communicated to the externee but it is imperative that general material in respect of the allegations must be communicated to the petitioner along with the period from which the activities carried on and the area where the activities was carried on. Sec. 59 of the Bombay Police Act enjoins duty to give proper show cause notice. The purpose for such notice is also drafted in the Statute itself. In the matter of Kathi Harsur Rukhad vs. State of Gujarat & Anr., as reported in 1986(1) GLR p. 682, in para-7, the Division Bench of this Court observed as under: "7. 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 sec. 59. In fact, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judge, because, in the latter 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 sec. 2(10) of the Act; but the mere fact that the said definition takes in various types of places, doe 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 general nature of the material allegations as contemplated under sec. 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 which an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a notice under sec. 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." In view of the aforesaid authoritative pronouncement of the Supreme Court, it is obvious that even though notice issued under sec. 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 sec. 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 sec. 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." At least, therefore, proper notice under sec. 59 of the Bombay Police Act must contain general nature of allegation, period when the nefarious activity was carried on and the area in which this activity was carried on. On going through the record carefully and through the notice under sec. 59 of the Bombay Police Act, as placed on record and which is dated 6.8.2002, it is clear that though general nature of material allegations as well as area where the nefarious activities were carried on were communicated to the petitioner but the period when these activities were carried on is not communicated to the petitioner. According to the above said decision of this court, notice becomes vague and bad in law in absence of mentioning period when the nefarious activities were carried on and the order passed in pursuance of such notice must in this petition is required to be quashed and set aside on this ground alone. Yet one more contention is required to be dealt with which is in respect of non-consideration of defence offered and explanation placed on record in writing by the petitioner. Again sec. 59 of the Bombay Police Act enjoins upon the authority concerned that before an order under sec. 56 is passed and after issuance of notice, if the proposed externee tenders the explanation and makes request for examination of any witnesses than unless for the reasons to be recorded in writing such an application shall be granted by the concerned authority. The purpose of making such provisions in sec. 59 of the BP Act is clear that if any explanation is offered by the petitioner, if any evidence is led in shape of oral or documentary, the same shall be considered by the concerned authority objectively. The authority concerned may or may not accept the explanation of the petitioner tendered in pursuance of show cause notice, the authority concerned may or may not accept the evidence documentary or oral which might have been tendered by the proposed externee but in the process of determination the authority is duty bound to objectively appreciate the evidence as tendered by the petitioner. This appreciation cannot be at the capris and as per the wish of the concerned authority. Such appreciation must be in pursuance of the purpose of sec. 59 of the BP Act and must be according to law and when the explanation and the evidence is not acceptable as tendered by the petitioner, the reasons should reflect in the process of determination. While in this case, going through the order passed by the Sub Divisional Magistrate, it is not reflected at all that the explanation offered by the petitioner and the evidence led was whether objectively considered by the ld. Sub Divisional Magistrate, Junagadh. The order impugned in this special criminal application is required to be quashed and set aside on this ground also. In the result, this special criminal application is allowed. The order impugned in this special criminal application passed by Sub Divisional Magistrate, Junagadh on 4.10.2002 removing the petitioner from the districts mentioned in the order is quashed and set aside and the order of the Deputy Secretary passed on 16.12.2002 confirming the said order in revision application is also quashed and set aside. Rule is made absolute with no order as to costs. DS permitted. (J.R. VORA, J.) mandora/