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Gujarat High Court
Judgename :D.C.Srivastava
HUSSAINMIYA ALIAS JAGO RAZAKMIYA QADRI - Appellant
Versus
STATE - Respondent
S.CRI.A. 944 of 1998
Decided On : 02/09/1999
An order for externment has the necessary consequence of restricting the movement of a citizen. This restriction can be imposed only by proceeding in accordance with law. The law on the subject is that prior to the passing of an order of externment show cause notice should be issued disclosing specific grounds on which an order for externment is proposed to be passed. If vauge grounds are given in the show cause notice, it will certainly prejudice the petitioner in effectively raising his defence.
[Para 5]
(b) Externment Order - Procedure - After show cause notice, the cause is shown & defence is led by proposed externee, the externing authority as well as appellate authority are bound to consider the same objectively & give reasons for the order - Violation would render the order invalid.
If, after the receipt of the show cause notice, the cause is shown and the defence is tendered by the proposed externee, the same is bound to be considered objectively by the externing authority as well as by the Appellate Authority. No doubt, these authorities are not exercising functions of judicial authorities while passing these orders but they are certainly acting as quasi judicial authorities, hence, these orders should not be purely subjective, rather objectivity should be reflected in these orders. In case evidence is adduced by tho two sides it should be objectively considered and reasons should be given why evidence of one side is believed and the evidence of the other side is not believed. If the orders are passed after complying with these formalities, then certainly it can be said that procedural safeguards were observed by the two authorities. In all events, violation of these safeguards will certainly render the impugned orders invalid.
[Para 5]
(c) Bombay Police Act - Secs. 56 & 59 - Externment Order - Show cause notice - Infirmities - Order without application of mind containing vague allegation without specifying the period and area of operation - Notice & order of externment from three districts but no reasons given for such order - Full particulars upon which petitioner was expected to give his reply are not disclosed - Even appellate authority has not given reasons for rejecting the defence evidence given by petitioner - Show cause notice itself being invalid order of externment & order of appellate authority automatically rendered invalid.
There is also apparent contradiction between the show cause notice and the externment order. In the show cause notice, it was shown that the action is proposed to be taken under Sec. 56(A) of the Bombay Police Act; whereas the externment order shows that the power was exercised under Sec. 56(B) of the Bombay Police Act. These contradictions, if taken at their face value can be said to have given raise to a situation of non application of mind by the externing authority not only to the material on record viz., to the show cause notice but also to the provisions of Sec. 56-A and Sec. 56-B of the Bombay Police Act. Non application of mind to the legal provisions and to the material on record will also render the order of externment bad in law.
[Para 8]
In the show cause notice the authority issuing the same did not entertain subjective satisfaction that the activities of the petitioner were such that he was required to be externed from the contiguous districts of Surendranagar, Rajkot (Rural) and Rajkot City. This necessity was felt by the externing authority while passing the externment order and that too on mere presumption and surmises. There was no material that the externment of the petitioner from three contiguous district was a dire necessity.
If the externment is proposed from the contiguous districts, it must be disclosed in the show cause notice why such externment is proposed and the same should be repeated in the externment order. Further, if it is not disclosed in the show cause notice but is disclosed in the final order, the final order would be rendered invalid.
The allegations preceding these three cases in the show cause notice are totally general in nature and vague in character. It has not been disclosed during which period the alleged anti-social activities by the petitioner were committed and where was the concerned area of operation. Likewise those anti-social activities were also not specified and on vague material subjective satisfaction was arrived at that such activities were prejudicial for peace of the member of the public.
Failure to mention in the notice the period during which such acts are said to have been committed will definitely vitiate such show cause notice issued by the externing authority.
[Para 9]
The show cause notice is certainly vague as it did not disclose full particulars upon which the petitioner was expected to furnish his reply. If the show cause notice is rendered invalid, the order of externment and the order of the Appellate Authority which are based upon such a notice will automatically be rendered invalid.
[Para 14]
The appellate authority writes that but statements of witnesses of defence or statement of defence could not become helpful in dropping charges against the appellant. This is the only reason for rejecting defence evidence which is totally incorrect approach for appreciating and rejecting the defence evidence. Reasoned order should have been passed by the Appellate Authority. He could have justifiably rejected the defence evidence observing that the defence witnesses were interested with the petitioner. It could then have been said that the Appellate Authority had applied its mind to the defence evidence. The result therefore, is that both the orders are based upon non application of mind to the defence evidence which is yet another ground for quashing the two orders.
[Para 15]
( 1 ) IN this writ petition under Article 226 of Constitution of India, prayer is made to issue a writ of certiorari for quashing the show cause notice Annexure. B, Externment Order Annexure. A and order of the Appellate Authority Annexure. C to the writ petition. Brief facts giving rise to the present writ petition are as under:
( 2 ) A show cause notice Annexure-B under section 59 of the Bombay Police Act was issued to the petitioner by the Assistant Commissioner of Police (Eastern Division),rajkot City, Rajkot to show cause as to why he should not be externed for a period of two years in view of his anti social activities reflected in two cases registered under various sections of the IPC and one under the Prohibition Act and further as shown by three witnesses who narrated about the activities of the petitioner in their confidential statement. The petitioner appeared, filed reply to the show cause notice and also examined witnesses in his defence. The externing authority, the Deputy Commissioner of Police, Rajkot City, passed the externment order externing the petitioner from Rajkot city,rajkot (Rural) and also from the adjoining district Surendranagar. Against the externment order an appeal was preferred which was dismissed by the Appellate Authority, hence this writ petition.
( 3 ) THE learned advocate for the petitioner has challenged the show cause notice, order of externment and the order of the Appellate Authority on four grounds. The learned Assistant Government Pleader has contended that the order of externment and the order of the Appellate Authority are perfectly legal and there is no defect in the show cause notice, hence the writ petition should be dismissed.
( 4 ) HAVING heard the arguments of both the sides, it is very difficult to accept the contention that the show cause notice and the two impugned orders are in accordance with law. Several infirmities are found in the show notice, in the impugned order of externment and the impugned order of the Appellate Authority.
( 5 ) AN order for externment has the necessary consequence of restricting the movement of a citizen. This restriction can be imposed only by proceeding in accordance with law. The law on the subject is that prior to the passing of an order of externment show cause notice should be issued disclosing specific grounds on which an order for externment is proposed to be passed. If vague grounds are given in the show cause notice, it will certainly prejudice the petitioner in effectively raising his defence. The next stage is that if , after the receipt of the show cause notice, the cause is shown and the defence is tendered by the proposed externee, the same is bound to be considered objectively by the externing authority as well as by the Appellate Authority. No doubt, these authorities are not exercising functions of judicial authorities while passing these orders but they are certainly acting as quasi judicial auithorities, hence, these orders should not be purely subjective,rather objectivity should be reflected in these orders. In case evidence is adduced by the two sides it should be objectively considered and reasons should be given why evidence of one side is believed and the evidence of the other side is not believed. If the orders are passed after complying with these formalities, then certainly it can be said that procedural safeguards were observed by the two authorities. In all events, violation of these safeguards will certainly render the impugned orders invalid.
( 6 ) COMING to the first stage, if the show cause notice is examined and the externment order is perused, it prima-facie appears that the show cause notice was issued by the Assistant Commissioner of Police (Eastern Division) Rajkot City; whereas the impugned order was passed by the Deputy Commissioner of Police, Rajkot City, Rajkot. It thus appears from the record that the impugned order was not passed by the authority who issued the show cause notice af
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