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SCR.A/65/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 65 of 2011
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SURESHBHAI
RANCHHODBHAI HARKHANI - Applicant(s)
Versus
COMMISSIONER
OF POLICE & 1 - Respondent(s)
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Appearance :
MR
HORMAZ B SHETHNA for Applicant(s) : 1,
RULE NOT RECD BACK for
Respondent(s) : 1,
MR AJ DESAI APP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 01/04/2011
ORAL
ORDER
The
petitioner – externee has filed this petition under Article 226
of the Constitution of India read with Section 56 of the Bombay
Police Act with the following main prayers :-
“(A) Be
pleased to issue a writ of mandamus or any other writ quashing or
setting aside the order at Annxure B of the Deputy Police
Commissioner, Zone 1, Surat City passed on 26.08.2010.
(B) Pending
admission, hearing and final disposal of this petition, the execution
and operation of the order at Annexure B of the Deputy Police
Commissioner, Zone 1, Surat City passed on 26.08.2010 be stayed and
the petitioner be permitted to enter Surat city limits.”
2. Mr.H.B.Shethna,
learned counsel for the petitioner would contend that for the
offences registered under sections 454, 457, 380, 114 & 411 of
the Indian Penal Code vide CR No.I-284/2009 at Varachha Police
Station on 25.08.2009, a show cause notice under section 56 of the
Bombay Police Act, 1951 Act is given on 10.04.2010 after a period of
about 5½ months and there is no proximity with the cause for
which powers have been exercised by the authority. Learned counsel
would also contend that the allegations levelled against the externee
are restricted for very small area of Surat city and externing the
petitioner from adjoining districts of Surat city is also
disproportionate to the alleged illegal activities and the order
passed by the competent authority on 26.08.2010 is served upon the
externee on 14.12.2010 much after the period of appeal to be
preferred before the appellate authority and under section 60 of the
Act, has lapsed and expired. In the above circumstances, writ
petition may be considered to be maintainable and not barred by
efficacious alternative remedy. In support of his arguments, learned
counsel for the petitioner relied upon the following decisions:
[1] Jawahar
Panalal v. Sub Divisional Magistrate [1963(1) Cri. L.J. 263
(Vol.66, C.N.74)]
[2] Koli
Dana Nathu v. G.Ghosh, Sub-Div. Mag. Rajkot [1973 GLR 209]
[3] Sudhir
Makanji Kanar v. Dy. Commissioner of Police [1991(2) GLH (U.J.) 24]
3. Mr.
Desai, learned APP submits that powers have been exercised by the
competent authority and provisions of appeal under section 60 of the
Bombay Police Act would make this Court loath in exercising
jurisdiction under section 226 of the Constitution of India. In
addition to the above, it is submitted that offences were registered
and statements of certain witnesses recoded on 30.03.2010 would show
that activities of the petitioner were prejudicial not only to the
law and order but to the public order and, therefore, the authority
has exercised powers in accordance with law.
4. Having
heard learned advocates for the parties, on perusal of record of the
case and the decisions relied upon by the learned counsel for the
petitioner, exercise of powers by writ court in a given case was held
to be just and proper when powers exercised by the authority and
order passed are ultra vires. Even considering the submissions on
merit about delay in passing the order dated 26.08.2010 by the
competent authority under the Act after about 5½ months would
go to show that such exercise of powers is at a very belated stage
when the cause no more existed to extern the petitioner and thus
depriving his right to life and liberty. The statements dated
30.03.2010 recorded by unknown witnesses are nothing but a recital
about alleged illegal activities for which the petitioner could not
have been externed from about six adjoining district of Surat for a
period of 2 years. The above aspect would go show that when the area
of alleged illegal activities was within the city limits of Surat,
externing the petitioner from adjoining six districts is not
justified. Therefore, considering the law laid down by the court in
the above decisions, I am inclined to quash and set aside the order
dated 26.08.2010 passed by the Deputy Police Commissioner, Zone 1,
Surat and is hereby quashed and set aside.
Accordingly,
this petition is allowed. Rule is made absolute to the aforesaid
extent only.
Direct
service is permitted.
[Anant
S. Dave, J.]
*pvv
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