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SCR.A/1988/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1988 of 2010
=========================================================
JAYESH
HIRALAL THAKKAR & 6 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
SUNIL M AGRAWAL for
Applicant(s) : 1 - 7.
MR JM PANCHAL, SPL PP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/10/2010
ORAL
ORDER
Rule.
Learned Special PP Mr. Panchal waives service of rule for respondent
State.
The
petitioner challenges legality of notification dated 22.10.2009
issued by the State Government insofar as same pertains to the
petitioner. Notification has been issued in exercise of powers under
Section 268 of the Code of Criminal Procedure. Persons named in the
said notification are directed not to be removed from Sabarmati
Central Prison, Ahmedabad.
Previously
some of the accused covered in this very notification had approached
this Court challenging legality thereof. By order dated 15.7.2010
passed in Special Criminal Application No. 1204/2010 and connected
matter, following observations and directions were made :
Rule.
Learned APP Mr. Nanavaty and Ms. Shah waives service of rule for
respondent State in the respective petitions.
The
petitioner original accused no.31 in the complaint being C.R.
No.I-252/2009 registered before Odhav police station has challenged
validity of Government notification dated 22.10.2009 by which the
Government in exercise of powers under Sub-section(1) of Section 268
of the Code of Criminal Procedure was pleased to provide as under :
And
whereas they are at present detained in Sabarmati Central Prison,
Ahmedabad. Now therefore, in exercise of powers conferred by
Sub-Section(1) of section 268 of the Criminal Procedure Code 1973 the
Government of Gujarat hereby having regard to
(a)
the nature of the offences for which or the grounds on which, the
said persons have been ordered to be confirmed or detain in prison
(b)
the likely hood of the disturbance of Public order if the said
persons are allowed to be removed from the prison, and
(c)
The public interest generally directs that they shall not be removed
from the Sabarmati Central Prison, Ahmedabad.
It
is not in dispute that with respect to certain other co-accused, this
Court had occasion to deal with the same notification. In Criminal
Misc. Application No.2639/2010 by order dated 3.5.2010, Learned
Single Judge observed as under :
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.
Facts
being identical and notification being common, I am inclined to take
the same view. Though while quashing the impugned notification dated
22.10.2009 qua the present petitioner, it must be observed that
interference by High Court was and is on account of non sufficiency
of reasons before the Government proceeded to issue notification
under Secton 268(1) of the Code of Criminal Procedure. Therefore,
despite this order it would always be open for the Government to pass
fresh orders in accordance with law, if facts so required.
In
the result, petitions are allowed. Notification dated 22.10.2009 is
quashed. Subject to above observations the petitions are disposed of.
Rule made absolute accordingly.
Facts
being identical, this petition is also disposed of in same terms.
Notification dated 22.10.2009 is quashed qua the present petitioner
subject however, to the right of the State to issue fresh
notification in accordance with law, if so required.
Disposed
of accordingly.
(Akil
Kureshi,J.)
(raghu)
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