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1968 (4) TMI 87

O. P. Malhotra and P. C. Bhartari, Arun H. Mehta and I. N. Shroff, for respondents JUDGMENT: Vaidyialingam C.A., In these criminal appeals, by special leave, the State of Gujarat and its officer, the Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, challenge the orders, dated April 8, 1965, passed by the Gujarat High Court, in Special Criminal Applications Nos. 3 and 8 of 1965, quashing the orders of externment, passed against the respective respondents, under s' 56, of the Bombay Police Act, 1951 (Bom. Act XXII of 195 1), (hereinafter referred to as the Act). Criminal Appeal No. 167 of 1965 is directed against the order in Special Criminal Application No. 3 of 1965, and Criminal Appeal No. 168 of 1965 is directed against the order in Special Criminal Application No. 8 of 1965. The Deputy Commissioner of Police, Traffic Branch, Ahmedabad City, served a notice, dated August 13, 1964. on the respondent in Criminal Appeal No. 167 of 1965, under S. 59 with s. 56, of the Act, in the following terms : "Under Section 59 of the Bombay Police Act (Bombay XXII of 1951) you are hereby informed that the following allegations are made against you in a proceeding under Sec .....

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ars. It is also Proposed to extern you out of the contiguous Districts of Ahmedabad Rural, Kaira and Mehsana as you are likely to operate and indulge in your violent activities from the contiguous Districts also through your associates and agents if not so externed." The said notice was served on the party on August 20, 1964. On the date, fixed for hearing, i.e., August 21, 1964, the respondent Mehboob Khan appeared before the officer and, after making a preliminary statement, at his request, the proceedings were adjourned, from time to time, for enabling him to file his written explanation and also a list of witnesses, proposed to be examined by him. Ultimately, on November 9, 1964, the Deputy Commissioner passed an order, directing the said Mehboob Khan Usman Khan to remove himself, with two days of the service of the order, outside the district of Ahmedabad City and the contiguous Districts of Ahmedabad Rural, Kaira and Mehsana. The order of externment contains recitals that, after considering the evidence 'before him, and the explanation, furnished by the respondent, the Deputy Commissioner of Police is satisfied that the respondent is a desperate and dangerous man, an .....

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competent officer. In the counter-affidavits, filed before the High Court, the Deputy Commissioner has stated that though the notice, under s. 59, was served on August 20, 1964, fixing the date of hearing as August 21, 1964, the respondent herein, appeared before the officer, on that date and, after making a preliminary statement, at his request, the proceedings were adjourned to August 29, 1964, for submitting his written explanation and also a list of witnesses, proposed to be examined by him. On the said date also, at the request of the respondent, further adjournment was granted and, on September 14, 1964, the respondent submitted his written statement, traversing the averments made, in the notice, dated August 13, 1964. He further examined witnesses, in his defence. Therefore, according to the Deputy Commissioner, the respondent had reasonable opportunity of tendering his explanation, regarding the matters, mentioned in the notice. It is further stated that the witnesses, examined by the respondent, claimed no knowledge of the criminal activities, mentioned in the notice, and that the entire material, consisting of the evidence of the victims, who had suffered at the hands of .....

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various places, mentioned in s. 2(10), of the Act, would not afford sufficient opportunity to the respondent, as to what particular places of public entertainment, or what particular establishment Ike is supposed to have visited and consumed eatables, without payment, and had ,beaten persons, when legal dues were demanded. As a large number of establishments would fall within the definition of 'place of public entertainment', under s. 2(10), of the Act, it is the further view of the learned Judges that it would be impossible for the party to find out as to which particular place or places of public entertainment, in the localities mentioned in the notice_, he is supposed to have visited and consumed eatables, without payment, and beaten persons in charge of their management, when legal dues were demanded from him. In this view, the learned Judges, ultimately, held that ground No. 3 of the notice dated August 13, 1964, was vague, as it could not have afforded a reasonable oppertunity to the respondent herein, of offering his explanation, or- leading evidence, in his defence. Inasmuch as this ground also, had taken into account, by the Deputy Commissioner, for passing the ord .....

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r a period of two years and not to enter the same, without permission in writing, obtained from a cornpetent authority. In this order also the Deputy Commissioner has stated that, on the materials available before him and, after considering the explanation and the. evidence, produced by the respondent, he was satisfied that the respondent was a desperate and dangerous person and was engaged in the commission of acts, involving violence and acts, punishable under Chapters XVI and XVII, of the Indian Penal Code, in the areas, mentioned in the notice, and that the three allegations, mentioned therein, were established, and, in view of the fact that the witnesses, regarding the above incidents, were not willing to come forward to give evidence, the order of externment was passed. The respondent challenged this order of externment, passed against him, as well as the notice, issued unde₹ 59, before the Gujarat High Court, in Special Criminal Application No. 8 of 1965, under Arts. 226 and 227, of the Constitution. Here again, the stand, taken by the respondent, was that the allegations, contained in the notice issued under s. 59, were very vague and indefinite and inconclusive and, .....

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fore the correctness of the views, expressed by the High Court, may be considered by this Court. It has been made clear before us that no action will be taken against the respective. respondents, in these appeals, on the basis of the orders, which are the subject of consideration. No doubt, Mr. Malhotra and Mr. I. N. Shroff, learned counsel, appearing for the respective respondents, in the appeals, have urged that the views, expressed by the High Court, are correct. Regarding the first contention, we see no merit, especially, when the High Court, in the exercise of its jurisdiction, under Arts. 226 and 227, has not chosen to reject the applications, filed by the respondents, on the ground that they had not exhausted their remedy of appeal, under s. 60, of the Act. That leaves us with the more important question, arising for consideration, viz., as to whether a proper interpretation has been placed, under s. 59 of the Act, by the High Court. Chapter V of the Act deals with special measures for maintenance of Public Order and Safety of the State. Sections 55 to 63AA, occur in the said Chapter, under the second sub- heading 'Dispersal of gangs and Removal 'of persons convicted .....

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, and residence of a comparatively fewer number of people, should be restrained, so that the majority of the community may move and live in peace and harmony, and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property. In particular, it is also stated that the individuals right to reside in and move freely in any part of the territory of India, has to yield to the larger interests of the community. This Court further states that ss. 56 and 57 of the Act, broadly speaking, correspond to s. 46 of Act IV of 1890 and s. 27 of Act IV of 1902. The scheme of s. 59 is dealt with at p. 521, and the criticism, levelled against that section, is rejected. It is further emphasized, at p. 522, that the proceedings, contemplated by s. 57, or for the matter of that, sections 55 or 56, are not prosecutions for offences or judicial proceedings, though the officer or authority, charged with the duty aforesaid, has to examine the information, laid before him, by the police, and that the police force is charged with the duty, not only of detection of offences and of bringing offenders to justice, but also of preventing the commission of offences, b .....

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o held to be valid. In our opinion, in considering as to whether the notices, issued in the present cases, under s. 59, suffer from any infirmity, the observations of this Court, in Hari Khemu Gawali's case ([1956] S. C. R. 506), extracted above, will have to be borne in mind. During the course of the arguments, counsel for the respondent, have drawn our attention to a decision. of the Bombay High Court in In re: Govind Pandurang(A. 1. R. 1956 Dom. 61) and that of the Gujarat High Court, in Jawaher v. Sub-Divisional Magistrate(1962) 3 Guj. L. R. 1041), interpreting s. 59 of the Act. But, we are not adverting to those decisions, in view of the decisions of this Court, referred to above. In the instant case, the learned Judges of the Gujarat High Court, accept the position that under s. 59, of the Act, the notice should inform the person, in writing, of the general nature of the material allegations, against him, and it need not contain particulars. But they have held that the allegations, regarding the two respondents, consuming eatables, from places of public entertainment, without payment, and beating persons, when legal dues were demanded, contained in the two notices, are va .....

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