JAWAHER PANALAL Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India in which an order dated 29-11-1961 passed by the Sub-Divi- sional Magistrate Dohad in C. R. No. 2 of 1961 externing the petitioner from the revenue limits of Dohad Sub Division and the surrounding talukas is being challenged. The petitioner is a resident of Devgadh Baria. It is an admitted fact that he has a radio shop at that place and that he is a platoon commandant in the Taluka Home Guard Unit and a member of the Taluka Prohibition Committee. The Sub-Divisional Magistrate issued a notice on 4th September 1961 calling upon the petitioner to show cause why an order under sec. 56 of the Bombay Police Act 1951 should not be passed against him. The allegations which were made in this notice were broadly speaking four in number: (i) that the petitioner caused thefts to be committed and helped thieves in disposal of stolen property; (ii) that he took undue liberty with the females of the place; (iii) that if anyone admonished the petitioner he used to threaten them with murder; and (iv) that he was a dangerous and a desperate person and that he used to achieve his nefarious objects by encouraging permanent `gundas of the village and by taking advantage of the positions which he occupied as a businessman as a member of the prohibition committee and as a platoon commandant. The notice further alleged inter alia that because the petitioner was a dangerous and a desperate person and because the majority of the population consisted of the Banias and Brahmins the latter were afraid of giving evidence in open Court against him on account of the apprehension that there would be danger to their persons and properties. The notice also further recited that complaints regarding molestation of females were not being filed because people were afraid of their reputation and because they feared that injury would be caused to their persons and properties. The petitioner appeared before the Sub-Divisional Magistrate in response to this notice and filed a written statement. In this document the petitioner complained that the information which was supplied to him was of a very vague nature and that if definite information was given to him regarding the various allegations he would be in a position to meet the same. The petitioner denied each and every allegation which was made in the notice and gave a list of a number of persons whom he intended to examine. These persons were actually examined by the petitioner. Ultimately the Sub-Divisional Magistrate Dohad passed the impugned order. He came to the conclusion that the charges levelled against the petitioner were correct; that the petitioner was a desperate and a dangerous person; that his activities were causing danger and harm to the persons and properties of the people; that he was engaged in commission of offences involving force violence and morality and that the witnesses did not come forward to give evidence in public against the petitioner because of the apprehension on their part as regards the safely of their persons and properties.

(2.) The learned Assistant Government Pleader raised three preliminary points and contended on the basis thereof that the petition should be rejected in limine. The first ground which he urged was that though the petitioner had a right of preferring an appeal from the impugned order to the State Government the petitioner had not availed himself of that remedy and rushed to this Court and therefore he urged that the petitioner not having exhausted all the remedies available to him this Court should not grant him any relief in the exercise of its high prerogative of issuing writs. The answer of Mr. Shah to this contention was that an exception is made in those cases where a fundamental right is alleged to have been infringed and where principles of natural justice have not been complied with. It was urged that in these two classes of cases this Court has taken the view that though all the remedies may not have been exhausted by a petitioner his petition should be entertained and considered on its merits. In support of this contention Mr. Shah relied upon a judgment of a Division Bench of this Court delivered by Bhagwati J. on 11th April 1961 in Special Criminal Application No. 450 of 1960. In this case in dealing with a similar contention the Division Bench held that the rule that the High Court will not issue a prerogative writ when an alternative remedy is available does not apply when a petitioner comes to the Court with an allegation that his fundamental rights have been infringed and seeks relief under Article 226 of the Constitution so that if there is any threat of encroachment upon his fundamental rights the Court will interfere and not compel him to exhaust his other legal remedies. The Division Bench also pointed out that the other exception which was well established was that if the authority against whom the complaint was made had violated the rule of natural justice the Court would interfere and protect the petitioner and not insist upon the petitioner to exhaust his alternative remedy. The learned Assistant Government Pleader however contended that the first exception had not been recognized by Their Lordships of the Supreme Court in A. V. Venkateswaran Collector of Customs Bombay v. Ramchand Sobhraj Wadhwani and another reported in A. I. R. 1961 Supreme Court 1506. We cannot agree with this contention. In this case Their Lordships were examining the validity of two contentions which were urged by the learned Solicitor General. These contentions have been mentioned by Their Lordships in paragraph 8 of their judgment at page 1508 The contentions were that the existence of an alternative remedy was a bar to the entertainment of a petition under Article 226 of the Constitution unless (i) there was a complete lack of jurisdiction in the officer or authority to take the action impugned or (ii) where the order prejudicial to the writ petitioner had been passed in violation of the principles of natural justice. Their Lordships in this case were not called upon to consider the validity of the submission that where an infringement of a fundamental right is alleged the failure on the part of the petitioner to exhaust all his remedies is or is not a bar. Under the circumstances this particular question was not considered by Their Lordships of the Supreme Court in this case at all. Moreover the observations which Their Lordships have made in this particular case do show that the propositions formulated by the Solicitor General were not exhaustive and that there may be other circumstances which may induce the Court to entertain and consider a petition even though all the remedies are not exhausted. In this connection Their Lordships have pointed out that the rule about the failure to exercise an alternative remedy when one is in existence is a rule relating to the discretion of the Court and that that rule does not act as a bar to the jurisdiction of the Court to entertain and grant a writ petition. Therefore the fact that the petitioner has not exhausted all his remedies does not bar the jurisdiction of the Court to entertain and consider the petition but is a factor to be taken into account for the purpose of considering whether the discretion should or should not be exercised in favour of the petitioner and having regard to the judgment of this Court on which Mr. Shah relies and which we have mentioned above in our judgment the fact that the petitioner had not filed an appeal although he was entitled to file one by itself does not disentitle him to a consideration of his case except that that may be one of the considerations that ultimately may weigh with us when determining the question as to whether the discretion to grant the relief should or should not be exercised in favour of the petitioner and having regard to the same judgment if the petitioner succeeds in showing that the result of the impugned order being bad in law is that his fundamental right of freedom of movement is affected that discretion would necessarily be exercised in favour of the petitioner.

(3.) The second point which the learned Assistant Government Pleader urged was that the petitioner was guilty of two mis-statements and that therefore the petition should be rejected. The two mis-statements are alleged to be that the petitioner had stated that he wanted to examine some more witnesses but that he was not permitted to do by the Sub-Divisional Magistrate. The learned Assistant Government Pleader relied upon the affidavit of the Sub-Divisional Magistrate in which he had stated that no such request was made to him and that he had not refused to examine any witness whom the petitioner intended to examine. The petitioner further stated in his petition that after the impugned order was passed the petitioner was not given any opportunity to obey the order voluntarily and that as soon as the order was served upon him he was removed under police custody to Baroda. The Sub-Divisional Magistrate in his affidavit has relied upon a document signed by the petitioner himself and in that document the petitioner had stated that during the period of externment he wanted to stay at Baroda and he would go by a train which was known as Past Train from Dohad which started therefrom at 6-30 P. M. The Sub-Divisional Magistrate further stated in the affidavit that the petitioner had not asked for any time to go to his place to arrange his affairs and that he had voluntarily obeyed his order and agreed to leave Dohad and go straight to Baroda. The petitioner however in his rejoinder has stated that his departure from Dohad was not a voluntary one. According to him when he asked for time to obey the order he was told that one police constable had been specially called from Baria to Dohad for the purpose of externing the petitioner and another person that four railway warrants had been prepared and that petitioner and that other person were sent through police custody to Baroda and were reported there to a police station at Baroda. Having regard to these allegations and counter allegations the matter appears to us to be a disputed one and on the record as it stands it is not possible for us to say with definiteness that the statements made by the petitioner in his petition were mis-statements. It is true that the petitioner signed a document in which he stated that he wanted to leave by a train. But if that document was written by him under the circumstances mentioned in his rejoinder it cannot be stated that his statement in the petition that he had not been given an opportunity to obey the order voluntarily is a mis-statement.