Decided on January 02,1966

STATE Respondents


N.M.MIABHOY, N.K.VAKIL - (1.) These two petitions raise a common question of law and are based on similar facts. Therefore we are pronouncing this common judgment which will dispose of both the petitions. The petitions are filed under Articles 226 and 227 of the Constitution of India. Petitioner in Special Criminal Application No. 28 of 1965 is Bashir Ahmed Hafiz Mehbub. Petitioner in Special Criminal Application No. 30 of 1965 is Hamid Ahmed Hafiz Mehbub. In both the petitions the first respondent is the State Government and the second respondent is I. C. Sheth Judicial Magistrate First Class Narol. Petitioners pray that an order dated 22nd July 1965 to be presently mentioned passed by the second respondent in a criminal proceeding against each of them should be quashed and that the second respondent be directed to dispose of the application below which the order is passed in both the criminal proceedings in accordance with law.
(2.) The facts giving rise to these two petitions are as follows. The Deputy Commissioner of Police Special Branch Ahmedabad passed an order of externment on 26th April 1964 against each of the petitioners under sec. 56 of the Bombay Police Act 1951 (Bombay Act No. XXII of 1951 (hereafter called the Act) externing each petitioner from the district of Ahmedabad City and the contiguous districts of Ahmedabad Rural Kaira and Mehsana and directing each of them not to return to or enter those districts for a period of two years from the date of the order. Petitioners complied with the said orders and removed themselves outside the districts specified in the order. Each of the petitioners however filed a writ petition in this Court under Article 226 of the Constitution of India challenging the legality of the order of externment passed against each of the petitioners. The writ petition filed by Bashir Ahmed Hafiz Mehbub was numbered as Special Criminal Application No. 9 of 1964 and that filed by the other petitioner Hamid Ahmed Hafiz Mehbub was numbered as Special Criminal Application No. 10 of 1964. This Court however dismissed both the writ petitions by its judgment pronounced on 23rd July 1964. Petitioners case is that they bona fide believed that the impugned orders were passed by the Deputy Commissioner aforesaid in mala fide exercise of his power. They allege that they did not agitate that question in the aforesaid two writ petitions because evidence was required to be led to support the plea. Therefore according to petitioners they decided to test the validity of the orders on the score of mala fides by committing a token breach of the impugned orders. Each of the petitioners therefore wrote a letter dated 8th March 1965 to the Police Inspector Aslali intimating that officer that he would commit a breach of the order of externment passed against him. In accordance with this plan each of the petitioners presented himself on 9th March 1965 at 7 A.M. at Narol Police Chowkey situated within the limits of the Ahmedabad District (Rural). Thereupon the authorities filed a criminal case against each of the petitioners charging each of them with an offence under sec. 142 of the Act. In the course of the trial each petitioner filed an application stating that he proposed to establish that the impugned order passed against him was null and void on the ground that it was unjust illegal and mala fide. Each petitioner further prayed for an order summoning the Police Commissioner of Ahmedabad or any other person acquainted with the facts of the case to produce all papers relating to the externment proceedings such as show cause notice the reply thereto the depositions of defence witnesses and other applications. This application was probably resisted by the prosecution on the basis of sec. 61 of the Act. That section provides that an order passed amongst other sections under sec. 56 of the Act shall not be called in question in any Court except on three stated grounds. The learned Magistrate examined the applications of petitioners from this stand-point. He came to the conclusion that the ground of mala fides was not one of the grounds stated in sec. 61 on the basis of which the orders of externment could be challenged in a Court of law. Therefore the learned Magistrate came to the conclusion that petitioners were not entitled to put forward the pleas of mala fides and it was not necessary for him to summon the witnesses aforesaid. On this sole ground the learned Magistrate rejected the applications. As already stated it is against these two orders that the two petitioners have filed these two writ petitions.
(3.) Mr. Daru challenges the orders passed by the second respondent on two grounds. Firstly he submits that in order that sec. 61 of the Act may apply the order must have been made under the sections mentioned in that section including sec. 56. He submits that when an order is made in mala fide exercise of the power conferred under any of the named sections then the order so made is not one made under the relevant section but it is one which is made de hors the same and that therefore the provisions of sec. 61 are not attracted to a case where the order in question is being challenged on the ground that it was made in the mala fide exercise of the power conferred under the relevant section. Secondly and alternatively Mr. Daru submits that if the ground of mala fides is excluded by sec. 61 of the Act then the exclusion is bad as being violative of the fundamental rights embodied in Articles 19 and 21 of the Constitution of India.;

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