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CR.MA/2639/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2639 of 2010
=============================================
MEENA
MANJITSINGH RAJPUT & 21 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=============================================
Appearance :
THROUGH
JAIL for Applicant(s) : 1 - 22
MR DEVANG NANAVATI appointed as
Amicus Curiae
MR SHIVANG J SHUKLA APP for Respondent(s) : 1,
None
for Respondent(s) : 2,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/05/2010
ORAL
ORDER
The
applicants have filed this application through jail, who are involved
in hooch tragedy and facing offences punishable under Sections 302,
307, 328, 272, 201, 109, 114, 120(B) of the Indian Penal Code,
Section 65(a),(b),(c), (d) & (e), 66(1)(b), 67(1)(a), 68, 72, 75,
81 and 83 of Bombay Prohibition Act, with a prayer to remove/delete
operation of provisions of Section 268 of the Code of Criminal
Procedure, 1973 (for short “the Code”) and/or to stay the
notification issued by the Home Department, Government of Gujarat
issued in exercise of powers conferred by sub-section (1) of Section
268 of the Code. In the application, the applicants have stated that
all of them have remained in detention and there is no justification
for restricting their movement by issuing notifications under Section
268(1) of the Code.
After
obtaining order from the Hon’ble Chief Justice, the matter was
placed before this court on 01.04.2010. Upon perusal of the record
of the case, Mr.Devang Nanavati, learned advocate was appointed as
amicus curiae to assist the court.
Along
with report dated, learned amicus curiae has
annexed copies of notifications dated 22.10.2009, 05.01.2010
and 23.02.2010 issued by the Home Department, State of Gujarat in
exercise of powers under sub-section (1) of section 268 of the Code
and it is submitted that the State Government has not applied its
mind to various factors before passing the orders inasmuch as the
said orders are not self-contained and speaking one. Nowhere in the
orders it is stated that the State Government has considered the
nature of offence, grounds on which orders are passed and no
satisfaction is arrived by the authorities for reaching to the
conclusion that if the persons or class of persons are allowed to be
removed from the prison, there is likelihood of the disturbance of
public order. Further, by placing reliance on the decision of the
Apex Court in the case of Commissioner of Police, Bombay v.
Gordhandas Bhanji reported in AIR 1952 SC 16 it is submitted that
public orders made by public authorities are meant to have public
effect and are intended to affect the acting and conduct of those to
whom they are addressed and must be construed objectively with
reference to the language used in the order itself. Reliance is also
placed on the decision of the Apex Court in the case of Mohinder
Singh Gill v. The Chief Election Commissioner, New Delhi reported in
AIR 1978 SC 851. Leaned amicus curiae has
also opined that invocation of Section 302 of the IPC in the instant
case is uncalled for. Copy of the report is ordered to be taken on
record.
Mr.Shivang
Shukla, learned APP appearing for the respondent-State has opposed
grant of any prayer to the prisoners and submitted that in case of
emergency the applicants are permitted to move out and in a given
case the jail authorities are not even waiting for obtaining
necessary permission from the State. Learned APP further submits
that all the under-trial prisoners are to be tried together and
medical dispensary is available, and therefore, issuance of
notifications under Section 268(1) is justified.
Having
heard learned advocates for the parties and on perusal of the record
of the case, including impugned notifications/orders, prima
facie, I am of the opinion that
the same are devoid of any reasons. On the contrary, the above
notifications simply reproduced provisions of section 268 of the Code
and no material appears on record about likelihood of disturbance of
public order if the person or class of persons are allowed to be
removed from the prison. It also appears that the State Government
has nowhere considered the nature of offence and grounds on which the
impugned orders are passed. Besides, all the applicants are women
arrested mainly on the ground of their role attributed in the
involvement of crime basically under the Bombay Prohibition Act and
considering the gravity of offences, charges under Sections 302 and
304 of the IPC are added. Be that as it may, at this stage, this
court is not on levelling of charges against the applicants-accused
but about validity and legality of exercising powers under Section
268 of the Code. Therefore, a case is made out in favour of the
applicants and the operation of notifications impugned qua the
applicants shall remain stayed.
Before
parting, it is immense pleasure of this Court to have the service of
Mr.Devang Nanavati, learned amicus curiae and records its
appreciation for the valuable assistance rendered by him.
This
application stands disposed of accordingly.
[Anant
S. Dave, J.]
*pvv
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