RAMANLAL BHOGILAL PATEL Vs. N H SETHNA

JUDGEMENT

(1.) THIS petition challenges an order dated 21st June 1970 passed by the Commissioner of Police Ahmedabad under sec. 144 sub-sec. (1) of the Code of Criminal Procedure. The order directs the petitioner that he should not enter or reside in or do or cause to be done any act either by speech or by conduct which would cause incitement within the area specified in the Schedule. The argument of the petitioner is that this order is beyond the terms of sec. 144 sub-sec. (1) inasmuch as it directs the petitioner in the guise of a negative injunction to do a positive act namely to leave the specified area which is not permissible under sec. 144 sub-sec. (1). Now if we have regard to the language of sec. 144 sub-sec. (1) it is clear that what it authorizes the Commissioner of Police to do is to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management. We are not concerned herewith the latter part of the section for it is not the case of the Commissioner that the direction given by him in the impugned order is related to that part. The only question is whether the direction given in the impugned order can be justified under the first part of the section. It is apperent on a plain grammatical construction that under the first part of the section a person can be directed only to abstain from a certain act. The direction can be only negative in character. No positive act can be directed to be done under this provision. Now so far as the direction contained in the impugned order is concerned it is of a two fold nature. The first part of the direction says that the petitioner shall not enter or reside in the specified area. The case of the petitioner is that he is residing in the specified area and this case has not been disputed on behalf of the Commissioner. The effect of this direction therefore is that the petitioner would have to leave the specified area and go out of it. It is no doubt true that the direction is negative in form inasmuch as it directs the petitioner not to enter or reside in the specified area; but in order to determine whether the direction is within the power conferred on the Commissioner under the section we must have regard to the substance of the direction and not the form. If we look at the substance of the direction it is clear that it directs the petitioner to do a positive act namely to remove himself from the specified area. That is something which is not permissible on the plain terms of sec. 144 sub-sec. (1). THIS view which we are taking is clearly supported by two decisions one of the Calcutta High Court reported in Emperor v. B. N. Sasmal 32 Cr.L.J. 592 and other of the Rangoon High Court in Thakin Ba Thoung v. Emperor 35 Cr.L.J. 1300. THIS part of the direction must therefore be held to be outside the terms of sec. 144 sub-sec. (1). So far as the second part of the direction is concerned namely that the petitioner should not do or cause to be done any act either by speech or by conduct which would cause incitement it is clearly a negative direction to abstain from doing a certain act and it cannot be assailed on the ground that it is not justified by the terms of sec. 144 sub-sec. (1). THIS second part of the direction was also challenged on the ground that the opinion of the Commissioner on the basis of which it was issued was based on grounds which were either non-existent or irrelevant. But this ground cannot be sustained in view of the detailed facts set out in the affidavit in reply filed by the Commissioner.

(2.) WE therefore allow the petition and make the rule absolute to the limited extent that a writ of mandamus shall issue quashing and setting aside the impugned order made by the Commissioner in so far as it directs the petitioner not to enter or reside in the specified area. The rest of the direction contained in the impugned order is held valid. There will be no order as to costs of the petition.