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SCR.A/168020/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1680 of 2008
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
SALUBHAI
ADAMBHAI SHAIKH - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==========================================
Appearance
:
MS SUBHADRA
G PATEL for Petitioner(s) : 1,
MR KP RAWAL,
APP for Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) :
2,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 22/09/2008
ORAL
JUDGMENT
1. By
this petition under Articles 226 and 227 of the Constitution of
India, the petitioner has challenged the order dated 31st
May, 2008 passed by the respondent no.2 Sub-Divisional
Magistrate, Mahuva whereby he has directed the petitioner to pay an
amount of Rs.20,000/- as surety for good behaviour, in exercise of
powers under Section 56(b) of the Bombay Police Act, 1951.
2. The
main contention raised in the petition is that the show-cause notice
under Section 56(b) was issued against the petitioner calling upon
him to show cause as to why he should not be externed for a period of
two years from the limits of the districts of Bhavnagar, Amreli,
Rajkot, Ahmedabad (City and Rural) and Surendranagar and that no
show-cause notice had been issued to the petitioner calling upon him
to show cause as to why he should not furnish surety. It was further
submitted that Section 56(b) of the Bombay Police Act does not
empower the Sub-Divisional Magistrate to direct payment of surety for
good behaviour.
3. It
was accordingly submitted that the impugned order, being in breach of
the principles of natural justice as well as being beyond the powers
of the Sub-Divisional Magistrate under Section 56(b) of the Bombay
Police Act, is required to be quashed and set aside.
4. From
the facts of the case, it is apparent that by the show-cause notice
dated 21st January, 2008, the petitioner was called upon
to show cause, in the context of four offences registered against
him, as to why he should not be externed from the limits of the
districts noted hereinabove. Pursuant to the reply given by the
petitioner, the Sub-Divisional Magistrate did not find it necessary
to extern the petitioner. However, vide the impugned order dated
31st May, 2008, the Sub-Divisional Magistrate has directed
the petitioner to deposit Rs.20,000/- towards surety for good
behaviour for a period of two years.
5. An
order passed under Section 56(b) of the Bombay Police Act is amenable
to appeal under Section 60 of the Act. However, as held by this
court in the case of Hasmukhbhai C. Brahmbhatt vs. Sub
Divisional Magistrate
rendered on 05th April, 2002 in Special Criminal
Application No.4 of 2002, when no order of externment has been
passed, there is no order passed in the exercise of powers under
Sections 55, 56 and 57 of the Act. When there is no order under
those provisions of the Bombay Police Act, the question of filing
appeal under Section 60 of the said Act does not arise. The Court,
in a similar set of facts, found that in view of the fact that the
proceedings were started for externment of the petitioner and the
learned Executive Magistrate was satisfied that there was no ground
to extern the petitioner, the Executive Magistrate could not have
passed the order requiring the petitioner to furnish a surety, as has
been done by him.
6. The
aforesaid decision would apply on all fours to the facts of the
present case. In the present case also, the petitioner had been
called upon to show cause as to why he should not be externed, in
exercise of powers under Section 56(b) of the Act. The show-cause
notice does not call upon the petitioner to show cause as to why he
should not be directed to furnish surety. In the circumstances, the
order directing the petitioner to furnish surety for good behaviour
is violative of the principles of natural justice and as such, cannot
be sustained.
7. For
the foregoing reasons, the petition is allowed. The impugned order
dated 31st May, 2008 passed by the learned Sub-Divisional
Magistrate, Mahuva in Externment Case No.11 of 2007 is hereby quashed
and set aside. Rule is made absolute accordingly.
Direct
Service is permitted.
(
Harsha Devani, J. )
hki
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