Decided on March 23,1988

State of Gujarat and Others Respondents


P.R.GOKULAKRISHNAN - (1.)This Special Criminal Application is filed to issue appropriate writ order or direction and to quash and set aside the order of externment and confirmation which is at Annexure `B & `C of this petition. The authority concerned issued show cause notice under Sec 57(c) of the Bombay Police Act alleging that the petitioner has been sentenced to imprisonment in three prohibition cases on 4-3-1987 9 and 4-11-1987 respectively. Those are all offences under Secs. 66(1)(b) and 85(1)(3) of the Prohibition Act. The imprisonment is also for a period of one day one day and till rising of the Court. The fine is also Rs 120/- 100 and 150/- respectively for the above said cases. On these facts the show cause notice was issued by the Deputy Police Commissioner Surat City and in that it is observed as follows:
"Since you are sentenced to imprisonment in three offences as mentioned above under Bombay Prohibition Act during the year 1987 and again you are involved in similar type of offence I am satisfied that you will again commit offences of similar nature. I have therefore proposed to extern you from Surat City for a period of two (2) years."
No doubt the said show cause notice also states that the externment will not only be from Surat City but also the neighbouring districts of Bharuch Valsad and Surat rural areas also for a period of two years. The very same observation is made in the externment order also for externing the petitioner. In an appeal under Sec. 60 of the Act the Government of Gujarat has confirmed the externment order except to the modification to the effect that the externment is only from Surat district limits. Aggrieved by the said order the petitioner has preferred the above said Special Criminal Application. Section 57(c) of the Bombay Police Act reads as follows:
" 57 If a person has been convicted

(c) thrice of an offence within a period of three gears under any of the provisions of the 3 (Bombay Prohibition Act 1949 or under Sec. 4 or 12A of the Bombay Prevention of Gambling Act 1887 or under Sec 4 or 12A of that set as in force in the Saurashtra area or the Kutch area of the 4 (State of Bombay)

or under Sec. 4 of the Gambling Act or Sec. 3 of the Public Gambling Act 1867 as in force in the Vidarbha region of the State of Bombay.

the Commissioner the District Magistrate or the Sub-Divisional Magistrate empowered by the State Government in this behalf if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted may direct such person to remove himself outside the area within the local limits of his jurisdiction (or such area and any District or Districts or any part thereof contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the area (or the area and such contiguous districts or part thereof Rs. the case may be) from which be was directed to remove himself."

Explanation :- For the purpose of this Section an offence similar to that for which a person was convicted shall mean

(i) in the case of a person convicted of an offence mentioned in clause (a) an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause and

(ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c) an offence failing under the provisions of the Acts mentioned respectively in the said clauses.

(2.)It is clear from the aforesaid fact that the authority has mechanically applied its mind without coming to the conclusion as to how the petitioner is menace to the society and will effect the public tranquillity if he is not externed as ordered by the externing authority. Such type of mechanical order has been criticised by various judgments of this High Court. In the case of Mohmmadusman v. Dy. Police Commissioner & Others reported in 1985 GLH 47: [ 1985(1) GLR 199 ] the Bench of this High Court while dealing with Sec- 57(c) has observe as follows (at page No. 200 of GLR):
" The purpose of passing an externment order is to keep away a person who is menace to society but that does not mean that every criminal however petty his criminality is is to be externed merely for that reason. The crimes that he commits must be of such a nature that it should justify the extreme step of keeping him away from his home district. The consequence of his act to social order the ineffectiveness of any other proceedings against him excepting the externment order and the grave consequence that may follow if he is not externed would alone justify the extreme step of infringing and very seriously the freedom of a citizen. If not read in that manner the provision itself will become unconstitutional as violating the fundamental freedom under Act. 21 of the Constitution of India. To give a legal content and meaning to Sec. 57 to bring it within constitutional limits and to view it as a provision absolutely necessary in the public interest despite its serious in road into individual rights of a citizen it must be read as limited to cases where the exercise of the power of externment is absolutely called for.

(3.)Even prior to that a Bench of this High Court in the case of Koli Dana Nathu v. G. Ghosh Sub-Div. Magistrate Rajkot reported in (1973) XIV GLR 209 has clearly stated that the notice must contain an allegation of danger to the people or society. The authority must consider the extent of the harmful activity of the petitioner and it should also consider whether it had reached such a degree or extent that in the interest of general public the petitioner was required to be removed from this locality by putting him out of the harms way so that community in the locality could remain in peace and tranquillity and safety.

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