ABDULGAFOOR MOHAMMAD HUSSAIN PATHAN Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) By filing this petition, the petitioner has challenged the order of externment passed against him by Sub Divisional Magistrate, Gandhinagar on 30-8-2005, and the order of the appellate authority, i.e., State Government, passed in an appeal preferred by the petitioner against the order of externment, by which the appellate authority has partly allowed the appeal of the petitioner and reduced the period of externment from one year to six months. On behalf of Sub " Divisional Magistrate, Gandhinagar, a show cause notice was issued to the petitioner under Section 59 (1) of the Bombay Police Act, 1951 (hereinafter be referred to as "the Act" for short). In the said show cause notice, which is at Annexure-A, there is a reference to three cases lodged against the petitioner. So far as first case is concerned, the same is registered before Dehgam Police Station as Gunah Register No.60/2001 under Section 153 (A) 1-B, 294 and 506 (2) of Indian Penal Code. The second case is a chapter case registered at Dehgam Police Station being Gunah Register No.160/2001 under Section 107 and 151 of the Criminal Procedure Code. Third case is also registered before Dehgam Police Station being Gunah Register No.133/2004 under Sections 323, 504 and 506 (2) of the Indian Penal Code, which is dated 27-12-2004.

(2.) It is alleged in the show cause notice that the petitioner is a head-strong person and, therefore, atmosphere of danger is created in the area. In the show cause notice, it is mentioned that in order to prevent his activities, order under Section 56 (A) of the Act is required to be passed and, therefore, the petitioner was asked as to why he should not be externed for a period of two years from the areas mentioned in the show cause notice. The petitioner gave reply to the aforesaid notice and pointed out that there is no basis for issuing show cause notice against him and the same is issued on some extraneous grounds. Sub Divisional Magistrate, Gandhinagar, thereafter, decided the externment proceedings by way of Externment Case No.1/2005.

(3.) Before the Sub " Divisional Magistrate, it was submitted on behalf of the petitioner that he is an aged person and since he has filed some complaints against some persons, he is subjected to externment proceedings. Sub Divisional Magistrate, Gandhinagar, ultimately by his order dated 30th August, 2005, came to the conclusion that the petitioner is in habit of filing false complaints and he is also in habit of instigating the people of the village, which may result into communal riots. The Sub Divisional Magistrate has also considered the statements of some witnesses, whose names have not been disclosed and, ultimately, an order under Section 57 (C) of the Act was passed, by which the petitioner was externed for a period of one year from Gandhinagar District as well as adjoining districts of Mehsana, Sabarkantha and Ahmedabad City as well as Ahmedabad Rural. Being aggrieved by the said order, the petitioner has preferred an appeal before the State Government under Section 60 of the Act. The Under Secretary, Home Department has decided the said appeal by his judgement and order, which is at Annexure " D of the compilation. The Under Secretary, Home Department has partly allowed the appeal of the petitioner and the petitioner was externed from Dehgam City as well as Dehgam Police Station area of Gandhinagar District and the period of externment was also reduced from one year to six months. Since the petitioner was not satisfied even with the order of the appellate authority, the petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India. Mr.N.D.Gohil, learned APP has submitted that now the period of externment is over and, therefore, nothing further is required to be done in this matter. Even if that be so, since learned advocate for the petitioner has argued the matter on merits and since this Court was called upon to decide whether the order in question is legal and proper, this matter is disposed of by deciding the same on merits. Ms.Banna Dutta, learned advocate for the petitioner submitted that the order in question suffers from total non-application of mind as show cause notice issued under Section 59 of the Act was in connection with proposed action of externment sought to be taken under Section 56(A) of the Act, however, ultimately, order of externment was not passed under Section 56 (A) of the Act but it was passed under Section 57 (C) of the Act. She further submitted that this point is also taken in the petition at Ground " C, but the State has not filed any reply to controvert that averment.