VRAJLAL MOHANLAL Vs. DISTRICT MAGISTRATE RAJKOT

JUDGEMENT

(1.) * * * *

(2.) Mr. Thakkar however contended that even though his case would not fall under the principles of natural justice the provisions of section 59 (The Bombay Police Act) themselves indicate that where a person in the position of the petitioner appears before the District Magistrate or the officer authorised by the District Magistrate he has a right of tendering oral arguments through his advocate before an order can be passed under section 56. Under section 56 the District Magistrate is authorised to pass the order if he is satisfied; (a) that the movements or acts of any person are causing or calculated to cause alarm danger or harm to person or property or (b) that there are reasonable grounds for believing either that such person is engaged or is about to be engaged in the commission of an offence set out therein or in the abetment of any such offence and that he is of the opinion that witnesses are not willing to come forward to give evidence in public by reason of apprehension on their part as regards the safety of their person or property. The power conferred upon the Magistrate under section 56 though conferred in abundant amplitude and affecting as it does the fundamental rights of a citizen has to be exercised in strict conformity with the provisions of section 59. The question therefore is whether under section 59 there is a right of an oral hearing in the sense of a right of tendering arguments before the officer passes this order in question as contended by Mr. Thakkar.

(3.) Under section 59 the power to pass an order under sections 55 56 and 57 is conferred upon a District Magistrate or an officer above the rank of an Inspector authorised by the Magistrate. The person against whom action is sought to be taken has a right to have information in writing as to the general nature of the material allegations made against him. He has also the right to have reasonable opportunity of tendering an explanation. Since there is nothing in the section to show that such explanation need be in writing it can both be oral as well as in writing. That indicates that he has a right to appear personally for the purpose of tendering his explanation. If such a person were to apply for the examination of any witness produced by him such application has to be granted unless it is made either vexatiously or to cause delay. If such person desires to tender a written statement such written statement has to be filed with the record of the case. Finally section 59 confers a right upon such a person either to appear personally or by an advocate or an attorney for the purpose of tendering his explanation and examining the witnesses produced by him. It is thus clear that section 59 expressly grants the right to such a person to have the opportunity to tender explanation and for that purpose either to appear in person or through a representative either a lawyer or otherwise. Mr. Thakkar incidentally argued that the fact that the word `attorney has been used in juxtaposition with the word `advocate in sub-section (1) of section 59 would suggest that the word `attorney would mean an attorney-at-law. In our view that construction is not justified. The word attorney has been used in its ordinary dictionary meaning and would include any representative of the person against whom action is sought to be taken whether he is a solicitor or not. But the right to appear either in person or through an advocate or a representative as provided for in this sub-section is for the purpose of tendering explanation and examining witnesses which must presumably include the right of cross-examination of witnesses produced by the police. It must be remembered that a District Magistrate or a Commissioner in Greater Bombay who are the authorities entitled to pass the order under section 56 do not constitute judicial courts in the sense in which ordinary courts are and are not governed either by the rules of evidence or the provisions of the Code of Civil Procedure or the Code of Criminal Procedure. There is no provision either in section 56 or section 59 which lays down any procedure under which a right to tender arguments after the evidence is recorded has been conferred upon the person against whom action is sought to be taken. Therefore so long as an adequate opportunity is afforded to such a person to tender his explanation and to adduce evidence in respect of the matters alleged against him such a person can have no grievance that there was either a breach of the principles of natural justice or that the provisions of sec. 59 were infringed unless the statute expressly provides the right or opportunity of argument. It was contended by Mr. Thakkar that inasmuch as under sub-section (1) of section 59 such a person is entitled to appear by an advocate or an attorney it would necessarily mean that a right of argument has been impliedly conferred upon such a person by this sub-section. We do not see any justification in that contention especially as the sub-section clearly says that such a person shall be entitled to appear by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him. In accordance with the provisions of this sub-section the explanation tendered by the petitioner was received and was filed with the record of the case. Witnesses were examined by the petitioners advocate and their evidence formed part of the record of the case. The petitioner was also informed in writing of the general nature of the material allegations against him. The petitioner knew the allegations which he had to reply or explain. It was after all these steps had been taken by the officer authorised by the District Magistrate that a report was made and the explanation tendered by or on behalf of the petitioner the evidence recorded by that officer and the other data were placed before the District Magistrate and the District Magistrate after considering all these matters passed the order in question. In our view no objection can legitimately be taken against the procedure adopted both by the officer and the District Magistrate and it cannot be urged that the petitioner had no adequate opportunity of explanation merely because the District Magistrate did not give a hearing either to him or to his advocate.