Criminal Application No. 1086 of 2005 · Gujarat High Court

Gujarat High Court. However, the appellate authority after recording the grounds of appeal and after perusing the record found that C.R.No.131/2004 registered for the offences u/S. 323, 325, 405 and 114 of I.P.C. and also under Section 135 of the Bombay Police Act, 1951 was registered against the petitioner and two secrete witnesses have stated about criminal and anti-social activities of the petitioner. Since the concerned authority has given sufficient opportunity to represent the case and the written representation of the defense submitted by the externee is also considered by the competent authority the order impugned was found in accordance with law and the appellate authority observed that the submission SCR.A/1086/2005 JUDGMENT about offences relied upon by the competent authority do not fall under Chapter 16 and 17 of IPC, have no relevance. Therefore, the order of competent authority was confirmed.

Being aggrieved and dissatisfied with the orders dated 21.04.2005 passed by the respondent no.1 and dated 08th August, 2005 passed by the respondent no.2 in confirming the order of the competent authority, the learned advocate submitted that the order of the competent authority dated 21.04.2005 is beyond the scope of show cause notice, since in the show cause notice dated 20th October, 2004 there was no mention about consideration and relevance of offences registered against the externee vide C.R.No.131/04. Therefore, according to the learned advocate for the petitioner, SCR.A/1086/2005 JUDGMENT no opportunity was given to the petitioner to raise his defense. That the offence registered qua C.R.No.131/04 fall under Chapter 16 and not under Chapter 17 of IPC. According to the learned counsel for the petitioner offences under Sections 323, 325 will be under Chapter 16, since the said offences are against human body while offences under Section 504 and 114 do not fall either under Chapter 16 or Chapter 17.

The learned A.P.P. Mrs. Hansa B. Punani has submitted that the concerned authority is justified in passing the order of externment since the criminal activities carried out by him in the residential area was sufficient enough to warrant exercise of powers under Section 56(b) of the Act. According to her, apart from the cases in which the SCR.A/1086/2005 JUDGMENT petitioner was acquitted by the court, there was adequate and enough materials for with the Competent Authority to arrive at the conclusion that except the remedy of externment under Section 57(b), no other remedy is available so as to prevent the externee from indulging into such activities. She has further submitted that there was no statutory obligation upon the appellate authority to give detailed and reasoned order, particularly the record of the whole case was perused and considered and thereafter the order under appeal was passed. Therefore, according to her, no interference is called for and the decision of the externing authority as well as of appellate authority do not require any interference by this Court in exercise of powers under Article 226 of the Constitution of India. SCR.A/1086/2005 JUDGMENT

Considering the rival submissions and perusing the relevant records including affidavit in reply, I am inclined to uphold the arguments and submissions of the learned counsel for the petitioner, since it is evident from the order of the Competent Authority that the concerned authority has not given any reference or indication about exercise of powers under Section 56 of Bombay Police Act, 1951 to the petitioner that the offences registered against the petitioner attract or they are the offences covered under Chapter 16 and 17 of the Penal Code. To this extent the petitioner is deprived of his right to represent his case and canvass the defense in accordance with the principles of natural justice. The facts or allegations which were not forming SCR.A/1086/2005 JUDGMENT the part in the show cause notice and surface in the order of the Competent Authority for arriving at the conclusion that the case is made out to extern the petitioner, at least require, mention in the notice of show cause, so that the person concerned can make effective representation on such issue. In the present case as rightly submitted by the learned counsel for the petitioner that only offences under Section 323 and 325 fall under Chapter 16 of the IPC while rest of the offences are under Chapter 22 and Chapter 5 of the Code while last offence is under the Bombay Police Act,

1951. Therefore, reliance is placed on the decision of this Court as reported in 1991 (GLH) 425 is aptly applicable. In the said decision in Para-6 of the judgment the learned single judge has held that mentioning of various offences SCR.A/1086/2005 JUDGMENT by the Competent authority, which did not fall either under Chapter 16 or 17 exhibited mechanical approach of the authority and rendered the order of externing authority illegally. Even in para-7 the learned Single Judge held that the order of appellate authority also suffers from vice of in the facts of the present case when there is a reference of offence registered under Sections 504 and 114 of Indian Penal Code and also under Section 135 of the Bombay Police Act falling under Chapter 16 and 17 of the Act, 1951 reflect total non-application of mind and therefore, the order passed on such factors is nothing but case of arbitrary and unreasonable exercise of powers in violation of Articles 14, 19 and 21 of the Constitution of India, and therefore, the impugned orders are SCR.A/1086/2005 JUDGMENT required to be quashed and set aside.

However, another submission of the learned counsel for the petitioner about approach of the externing authority as well the appellate authority about non- consideration of pronouncement of law on externment in exercise of powers and the relevant criteria and principles for exercise of powers under Section 56 or 57 of the Bombay Police Act, 1951 speak for the status of administration in the State as early as in 1996 in the reported decision in the case of Jorubhai, Sub-divisional Magistrate, Dholka 1996(1) GLH P-53. This Court lamented the approach of the authority in dealing with the appellants in exercise of quasi-judicial power under the Statute and particularly cases of involvement of right guaranteed under article 21 of the Constitution of India. SCR.A/1086/2005 JUDGMENT A reasonable hope was expressed that the appellate authority will act with responsibilities with a view to see that the responsibility cast upon it is diligently conscientiously discharged.

It seems from the record of two cases dealt with by this Court today, the above hope of this Hon'ble Court has remained just hope and the authorities have not learnt a lesson about, which has resulted into un- avoidable litigation before this Hon'ble Court. Since the orders impugned are quashed and set aside on the ground of non-application of mind by the concerned authority and failure by the appellate authority to deal with submissions as raised in the appeal, at this stage no further orders required to be passed and SCR.A/1086/2005 JUDGMENT therefore, the orders 21.04.2005 passed by the respondent no.1 and dated 8th August, 2005 passed by the Appellate authority, being devoid of reasons, are arbitrary and unreasonable and therefore violative of Articles 14,19 and 21 of the Constitution of India, are hereby ordered to be quashed and set aside. Petition is allowed. Rule is made absolute accordingly. Direct Service is permitted.

(ANANT S. DAVE, J.)