Full Judgment Text
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PETITIONER:
STATE OF GUJARAT AND ANR. ETC.
Vs.
RESPONDENT:
MEHBOOB KHAN USMAN KHAN ETC.
DATE OF JUDGMENT:
11/04/1968
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
HIDAYATULLAH, M. (CJ)
GROVER, A.N.
CITATION:
1968 AIR 1468 1968 SCR (3) 746
CITATOR INFO :
F 1973 SC 630 (4)
ACT:
Bombay Police Act 22 of 1951 ss. 56 and 59--Notice to show
cause under s. 59 and order of externment under s.
56--validity of.--Whether notice must contain detailed
particulars of allegations--if general nature of material
allegations sufficient to provide a person with reasonable
opportunity of explaining his conduct.
HEADNOTE:
The Deputy Commissioner of Police, Ahmedabad City served
notices on the respondents in the two appeals on August 13,
1964 and July 28, 1964 under s. 59 of Bombay Police Act XXII
of 1951 informing them that various allegations had been
made against them under s. 56 of the Act and that it was
proposed to remove them outside the District of Ahmedabad
City and certain contiguous Districts. An opportunity was
given to them of tendering their explanations in respect of
the allegations on dates which were communicated to them in
the notices. Each of the notices contained allegations,
inter alia, to the effect that the respondents consumed
eatables from places of public entertainment without payment
and when legal dues were demanded from them, they beat up
the persons concerned; and that the witnesses in respect of
the various incidents and allegations were not willing to
come forward to depose against the respondents in public by
reason of apprehension on their part as regards the safety
of their person and property. After the respondents had
submitted their written explanations and produced evidence
in their defence, the Deputy Commissioner passed orders on
November 9, 1964 and February 9, 1965 directing the
respondents to remove themselves from areas mentioned in the
order for a period of two years and not to enter the same
without permission in writing obtained from a competent
authority.
The respondents thereafter challenged the orders of the
Deputy Commissioner in writ petitions under Arts. 226 and
227 of the Constitution and contended. inter alia, that the
notices on which the subsequent orders of externment were
passed were too vague both with regard to the time and
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places of their alleged activities; the allegations made
against them were so general that they could not effectively
offer any explanations or substantiate their defence; and
that in effect the material allegations against them had not
been set out in the notices and there was therefore no
proper compliance with the provisions of.s. 59 so as to
enable the Deputy Commissioner to take action under s. 56 of
the Act. The High Court allowed the petitions holding that
the notices were invalid as they were too general and vague.
It also held that the definition of "a place of public
entertainment" in the Act would take in the numerous places
mentioned in s. 2(10) and accordingly the respondents could
not have sufficient opportunity of explaining their conduct
not knowing what particular places of public entertainment
they were supposed to have visited where they were alleged
to have committed various acts alleged against them. The
High Court therefore quashed the notices under s. 59 as well
as the orders of externment passed against the respondents.
On appeal to this Court,
747
HELD : The High Court was in error in holding that the
notices under s. 59 and the orders of externment under s.
56 were invalid.
The view that the allegations against the respondents should
have contained all the particulars of places of public
entertainment or establishments they were supposed to have
visited, was not warranted by the provisions of s. 59. The
notices referred to the periods during which the acts were
stated to have been committed, as well as the area where
they were said to have been committed. The mere fact that
the definition of the expression ’place of public
entertainment’, in s. 2(10) of the Act takes in various
types of places, does not militate against the allegations
in question being material allegations as contemplated under
s. 59. [757 D-E]
When a person against whom an order of externment is
proposed to be passed has to tender an explanation to a
notice under s. 59, he can only give an explanation of a
general nature. It may be open to him to take a defence of
the action being taken due to mala fides, malice or mistaken
identity, or be may be able to tender proof of his general
good conduct, or alibi, during the period covered by the
notice and the like. The allegations made in the notices
issued under s. 59 as against the respective respondents
contained the general nature of the material allegations
made against each of them in respect of which they had been
given a reasonable opportunity of tendering an explanation.
[757 G, H]
Hari Khemu Gawali v. The Deputy Commissioner of Police,
Bombay, [1956] S.C.R. 506 and Bhagubhai Dullabhabhai
Bhanedari v. The District Magistrate, Thana, [1956] S.C.R.
533; relied upon.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 167
and 168 of 1965.
Appeals by special leave from the judgments and orders dated
April 8, 1965 of the Gujarat High Court in Special Criminal
Applications Nos. 3 and 8 of 1965.
G. L. Sanghi and R. H. Dhebar, for the appellants (in both
the appeals).
O. P. Malhotra and P. C. Bhartari, for respondents (in Cr.
A. No. 167 of 1965).
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Arun H. Mehta and I. N. Shroff, for respondents (in Cr, A.
No. 168 of 1965).
The Judgment of the Court was delivered by
Vaidialingam, J.-In these criminal appeals, by special
leave, the State of Gujarat and its officer, the Deputy
Commissioner of Police, Traffic Branch, Ahmedabad City,
challenge the orders, dated April 8, 1965, passed by the
Gujarat High Court, in Special Criminal Applications Nos. 3
and 8 of 1965, quashing the orders of externment, passed
against the respective respondents, under s’ 56, of the
Bombay Police Act, 1951 (Bom. Act XXII of 195 1),
(hereinafter referred to as the Act). Criminal Appeal No.
167 of 1965 is directed against the order in Special
Criminal Application No. 3 of 1965, and Criminal Appeal No.
168 of 1965 is
748
directed against the order in Special Criminal Application
No. 8 of 1965.
The Deputy Commissioner of Police, Traffic Branch, Ahmedabad
City, served a notice, dated August 13, 1964. on the
respondent in Criminal Appeal No. 167 of 1965, under S. 59
with s. 56, of the Act, in the following terms :
"Under Section 59 of the Bombay Police Act
(Bombay XXII of 1951) you are hereby informed
that the following allegations are made
against you in a proceeding under Section 56
of the said Act, and it is proposed that you
should be removed outside the District of
Ahmedabad City and the contiguous District of
Ahmedabad Rural, Kaira and Mehsana and you
should not enter or return to the said
Districts for a period of two years from the
date of order proposed to be passed against
you under Section 56 of the Bombay Police Act,
1951. You are also informed that I have been
empowered by the Dy. Commissioner of Police,
Special Branch, Ahmedabad City under his No.
40 P.C.B. dated 12/8/1964 to proceed according
to Section 59(1) of the said Act.
In order to give you an opportunity of
tendering your explanation regarding the said
allegations, I have appointed 11.00 hours on
21-8-1964 to receive your explanation and to
hear you and your witnesses,if any, in regard
to the said allegations and hence require you
to appear before me at my office situated in
Old Nurses Hostel, Patharkuva, Relief Road,
Ahmedabad City on the said date and time for
the said purpose and to pass a bond in the sum
of Rs. 500 with one surety in like amount for
your attendance during the enquiry of the said
proceedings. In case you fail to appear on
the due date an ex parte hearing and decision
will be taken, that is, the inquiry will
proceed against you in normal manner and
decision will be taken in your absence.
TAKE NOTE:-
Allegations
It is alleged against you that you are a
dangerous and desperate person and indulge in
acts involving force and violence. You
terrorise the residents of the localities
known as Rentiawadi, Halimkhadki and round
about areas under Karanj and Madhavpura Police
Stations. Since the month of November 1963
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till today you are engaged in the commission
of the following offence in the above
localities
749
1. You way-lay, rob and extort money from
the persons at the point of knife and under
threats of violence;
2. You demand money from the persons and on
their refusal to pay you beat them:
3. You consume eatables from the place of
public entertainment without payment and when
legal dues are demanded you beat the person.
You are engaged in several acts as mentioned
in paras (1), (2) and (3) above and that the
witnesses to the above incidents are not
Willing to come forward to depose against you
in public by reason of apprehension on their
part as regards the safety of their person and
property-
It is proposed to extern you for a period of
two years. It is also Proposed to extern you
out of the contiguous Districts of Ahmedabad
Rural, Kaira and Mehsana as you are likely to
operate and indulge in your violent activities
from the contiguous Districts also through
your associates and agents if not so
externed."
The said notice was served on the party on August 20, 1964.
On the date, fixed for hearing, i.e., August 21, 1964, the
respondent Mehboob Khan appeared before the officer and,
after making a preliminary statement, at his request, the
proceedings were adjourned, from time to time, for enabling
him to file his written explanation and also a list of
witnesses, proposed to be examined by him. Ultimately, on
November 9, 1964, the Deputy Commissioner passed an order,
directing the said Mehboob Khan Usman Khan to remove
himself, with two days of the service of the order, outside
the district of Ahmedabad City and the contiguous Districts
of Ahmedabad Rural, Kaira and Mehsana. The order of
externment contains recitals that, after considering the
evidence ’before him, and the explanation, furnished by the
respondent, the Deputy Commissioner of Police is satisfied
that the respondent is a desperate and dangerous man, and is
engaged in the commission of acts involving force or
violence, and acts punishable under Chapters XVI and XVII,
of the Indian Penal Code, within the localities known as
Rantiawadi, Halimkhadki and round about areas, and that
there are reliable materials to prove the allegations,
contained in paragraphs (1), (2) and (3), of the said order.
Those allegations, it may be stated, are identical with the
three offences, referred to, in the notice, dated August 13,
1964. The Deputy Commissioner further states that, in his
opinion the witnesses to the above incidents are not willing
to come forward to give evidence in public against him by
reason of apprehension on their part as regards the safety
of their person and Pr
750
Finally, the order concludes by reciting that in exercise of
the powers,.vested in the Deputy Commissioner, under S. 56
of the Act, he directs the respondent to remove himself-
outside the District of Ahmedabad City and the contiguous
Districts of Ahmedabad Rural, Kaira and Mehsana, within two
days from the date of service of the order. The order also
concludes, by-saying that the respondent should not return
to or reenter the places mentioned therein, for a period of
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two years from the date of the order, without obtaining the
permission, in writing, of the competent authority.
The respondent in Criminal Appeal 167/65 filed Special
Criminal Application No. 3 of 1965, in the Gujarat High
Court, under Arts. 226 and 227, of the Constitution, for
quashing this order of externment, passed against him. The
main ground, on which the order was challenged, appears to
be that the notice, dated August 13, 1964, on which the
subsequent order of externment is based, was too vague and
general, both with regard to the time and places of his
alleged activities, and that the allegations made, therein,
were so general that he could not offer, effectively, any
explanation, or substantiate his defence. In short, it was
the grievance of the respondent that, in the notice, issued
under S. 50, the material allegations, had not been set out,
and therefore, there had been no proper compliance with the
provisions of that section, so as to enable the Deputy
Commissioner, to take action, under S. 56 of the Act. The
respondent raised certain other objections, to the validity
and legality of the order, one of which was that the order
of externment, had not been passed, by the competent
officer.
In the counter-affidavits, filed before the High Court, the
Deputy Commissioner has stated that though the notice, under
s. 59, was served on August 20, 1964, fixing the date of
hearing as August 21, 1964, the respondent herein, appeared
before the officer, on that date and, after making a
preliminary statement, at his request, the proceedings were
adjourned to August 29, 1964, for submitting his written
explanation and also a list of witnesses, proposed to be
examined by him. On the said date also, at the request of
the respondent, further adjournment was granted and, on
September 14, 1964, the respondent submitted his written
statement, traversing the averments made, in the notice,
dated August 13, 1964. He further examined witnesses, in
his defence. Therefore, according to the Deputy
Commissioner, the respondent had reasonable opportunity of
tendering his explanation, regarding the matters, mentioned
in the notice. It is further stated that the witnesses,
examined by the respondent, claimed no knowledge of the
criminal activities, mentioned in the notice, and that the
entire material, consisting of the evidence of the victims,
who had suffered at the hands of the respondent, which were
before the officer, was considered, and the officer was also
751
satisfied that the respondent was indulging in offences,
punishable under Chapters XVI and XVII, of the Indian Penal
Code. The officer was further satisfied that those persons
were not willing to depose against him, in public, by reason
of apprehension, on their part, as regards the safety of,
their person and property. The Deputy Commissioner has
further stated that, from the record and information
available with him, the respondent was a wellknown bully,
terrorizing law-abiding citizens, in the areas, mentioned in
the notice, and that it was, after following the procedure,
indicated in s. 59, that an order was ultimately passed,
under s. 56. It is further averred that the notice is
explicit and contains the general nature of the material
allegations, against the respondent, as is required, by s.
59 of the Act. The, respondent, herein, it is further
stated, has fully understood the nature of the allegations,
made against him, as is clear from the nature of the
defence, taken by him, and the evidence, adduced to support
that plea. On these and other averments made, in the
counter-affidavit, the Deputy Commissioner submitted that
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the order did not suffer from any infirmity, as alleged by
the respondent.
The learned Judges of the Gujarat High Court, in the order
under attack, have accepted the position that, under s. 59,
the competent officer should inform the person, in writing,
of the general nature of the material allegations against
him. It is their view that the nature of the material
allegations should not be so general, as to make it vague,
and not precise, and that it must be of such a character as
to give the person, concerned, a reasonable opportunity of
tendering an explanation, regarding the material
allegations. Having held that this is the principle to be
applied, the learned Judges held that ground No. 3, of the
notice dated August 13, 1964, served on the-respondent, was
open to the objection of ’vagueness’. In this connection,
the learned Judges .refer to the definition of the
expression ’place of public entertainment, as contained in
s. 2(10), of the Act. They further hold that to allege
against any individual that he consumed, without payment,
eatables, i.e., articles of food, from a place of public,
entertainment’, which will take in the various places,
mentioned in s. 2(10), of the Act, would not afford
sufficient opportunity to the respondent, as to what
particular places of public entertainment, or what
particular establishment Ike is supposed to have visited and
consumed eatables, without payment, and had ,beaten persons,
when legal dues were demanded. As a large number of
establishments would fall within the definition of ’place of
public entertainment’, under s. 2(10), of the Act, it is the
further view of the learned Judges that it would be
impossible for the party to find out as to which particular
place or places of public entertainment, in the localities
mentioned in the notice_, he is supposed to have visited and
consumed eatables, without payment, and beat-
752
en persons in charge of their management, when legal dues
were demanded from him. In this view, the learned Judges,
ultimately, held that ground No. 3 of the notice dated
August 13, 1964, was vague, as it could not have afforded a
reasonable oppertunity to the respondent herein, of offering
his explanation, or- leading evidence, in his defence.
Inasmuch as this ground also, had taken into account, by the
Deputy Commissioner, for passing the order of externment,
and as this ground was held to be vague, the learned Judges
ultimately quashed the notice, issued under s. 59, dated
August 13, 1964, as well as the order of externment, dated
November 9, 1964, passed against the respondent. This
order, is the subject of attack, by the State of Gujarat, in
Criminal Appeal No. 167 of 1965.
Similarly, a notice, dated-July 28, 1964, under s. 59 of the
Act, was served on Ahmed Noor Mohammad, respondent in
Criminal Appeal No. 168 of 1965, by the Deputy Commissioner,
Ahmedabad City, stating that the said officer proposed to
extern the respondent, for a period of two years, under s.
56 of the Act. In the allegations, contained in this
notice, it was mentioned that the respondent was a desperate
man, indulging in acts of violence and force, and that since
September 1963, till the date of the notice, he was engaged
in the commission of the three acts, mentioned therein, in
the localities, known as Kazi-na-dhaba, Maruwas, Jamalpur
and round about those places. It is enough only to refer to
the first allegation, contained in this notice, which is
substantially similar to the third allegation, mentioned in
the notice, issued against Mahboob Khan Usman Khan; and that
allegation was to the effect that the respondent visited
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places of public entertainment and refused to pay for the
articles, consumed by him, under threats of Violence. The
notice further-stated that the witnesses to the incident,
mentioned therein, were not willing to, come forward and
depose against the respondent in public, by reason of
apprehension, on their part, as regards the safety of their
person and property. It was hence stated in the notice that
it was proposed to extern the respondent, from the areas,
mentioned therein, for a period of two years. The notice
also intimated that 11 a.m., on August 6, 1964, was fixed
for receiving the explanation of the respondent, as well as
for hearing him and any of the witnesses that he might
produce, with reference to the allegations, made in the
notice. It is seen from the records that the respondent
appeared before the officer dnd filed written statements,
examined witnesses in support of his defence and that an
advocate appeared for him. On February 9, 1965, the Deputy
Commissioner passed an order, under s. 56 of the Act,
directing the respondent to remove himself from the areas,
mentioned in the order, for a period of two years and not to
enter the same, without permission in writing, obtained from
a corn-
753
petent authority. In this order also the Deputy
Commissioner has stated that, on the materials available
before him and, after considering the explanation and the.
evidence, produced by the respondent, he was satisfied that
the respondent was a desperate and dangerous person and was
engaged in the commission of acts, involving violence and
acts, punishable under Chapters XVI and XVII, of the Indian
Penal Code, in the areas, mentioned in the notice, and that
the three allegations, mentioned therein, were established,
and, in view of the fact that the witnesses, regarding the
above incidents, were not willing to come forward to give
evidence, the order of externment was passed.
The respondent challenged this order of externment, passed
against him, as well as the notice, issued under s. 59,
before the Gujarat High Court, in Special Criminal
Application No. 8 of 1965, under Arts. 226 and 227, of the
Constitution. Here again, the stand, taken by the
respondent, was that the allegations, contained in the
notice issued under s. 59, were very vague and indefinite
and inconclusive and, as such, it could not be said that he
was given a reasonable opportunity, to offer his
explanation, as contemplated under the said section.
Certain other objections, regarding the legality of the
order, were also raised.
In the counter-affidavit, filed by the Deputy Commissioner,
it is stated that the order, dated February 2, 1965, was
passed by him, under s. 56 of the Act, after a careful
consideration, of all materials placed before him, including
the written statement and the defence evidence, adduced by
the respondent. It was further stated that the notice,
issued under s. 59, was in strict conformity with the
provisions of that section, and the respondent had a
reasonable opportunity of tendering an explanation,
regarding the allegations, made against him. The learned
Judges of the Gujarat High Court, adopting the reasoning
given in Special Criminal Application No. 3 of 1965, held
that the notice, under s. 59, was invalid and, in
consequence, the order of externment, also, must fall to the
ground. The learned Judges have held that allegation No. 1,
in the notice, dated July 28, 1964, is analogous to ground
No. 3, in the connected application, and that ground had
been held to be vague. In consequence, the learned Judges
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struck down the order of externment, dated February 9, 1965,
as well as the notice, dated July 28, 1964. This order.is
attacked, by the Deputy Commissioner, in Criminal,Appeal No.
168 of 1965.
Mr. G. L. Sanghi, learned counsel, appearing for the
appellants, in these appeals, has raised two contentions :
(1) that both the respondents had a right of appeal, as
provided under S. 60 of the Act, to the State Government,
against the orders, passed under s. 56 of the Act, and,
therefore, the writ petitions, filed by them, in the High
Court, should not have been entertained; (2) that the
striking down, of the orders of externment, as containing
vague
754
allegations, Was not justified, as the notices were strictly
in accordance with s. 59, of the Act.
At the outset, it may be stated that the period of two
years, for which the respondents were sought lo be externed,
has already expired and, in one sense, it now becomes purely
academic, to consider the correctness of the orders of
externment. But, counsel for the appellant has pointed out
that the State is anxious to have a decision, from this
Court, regarding the legal position, under s. 59, and
therefore the correctness of the views, expressed by the
High Court, may be considered by this Court. It has been
made clear before us that no action will be taken against
the respective .respondents, in these appeals, on the basis
of the orders, which are the subject of consideration. No
doubt, Mr. Malhotra and Mr. I. N. Shroff, learned counsel,
appearing for the respective respondents, in the appeals,
have urged that the views, expressed by the High Court, are
correct.
Regarding the first contention, we see no merit, especially,
when the High Court, in the exercise of its jurisdiction,
under Arts. 226 and 227, has not chosen to reject the
applications, filed by the respondents, on the ground that
they had not exhausted their remedy of appeal, under s. 60,
of the Act. That leaves us with the more important
question, arising for consideration, viz., as to whether a
proper interpretation has been placed, under s. 59 of the
Act, by the High Court.
Chapter V of the Act deals with special measures for mainte-
nance of Public Order and Safety of the State. Sections 55
to 63AA, occur in the said Chapter, under the second sub-
heading ’Dispersal of gangs and Removal ’of persons
convicted of certain offences’. Section 56 relates to
removal of persons about to commit offence. Under s. 58, a
direction, made under ss. 55, 56 or 57, shall, in no case,
exceed a period of two years from the date on which it was
made. Section 59 provides for hearing to be given, before
an order under ss. 55, 56 or 57, is passed. We may pause
here for a moment and state that both the respondents, in
response to the notice, issued under this section, had filed
written statements and also adduced evidence. In
particular, the respondent in Criminal Appeal No. 168 of
1965, was also represented by an advocate, in those
proceedings.
Section 60 provides for an appeal, to the State Government,
against an order passed under ss. 55, 56 or 57.
Normally, we would have dealt with the scheme of these sec-
tions, and in particular, of s. 56 and 59, very elaborately;
but, we are absolved from that task, in view of two
decisions of this Court, in Hari Khemu Gawali v. The Deputy
Commissioner of Police
755
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Bombay(1) and Bhagubhai Dullabhabhai Bhandari v. The
District Magistrate, Thana (2 ) . A writ petition, No. 272
of 1955 was filed, under Art. 32, challenging the vires of
the Act and, in particular the provisions of s. 57.
Similarly, in two other writ petitions, Nos. 439 and 440 of
1955, the provisions of s. 56, of the Act, were challenged,
and a particular attack was made, against the notice, issued
under s. 59, on the ground that the allegations, contained
therein, were vague and too general. Though this Court
delivered two separate judgments, which are reported, as
above, one in respect of writ petition No. 272 of 1955 and
the other in respect of writ petitions Nos. 439 and 440 of
1955, it is seen from the reports, that all these matters
were heard together. We are referring to this aspect
because the scheme of the Act and, in particular, of the
provisions of ss. 55 to 57, have been dealt with in these
judgments. The Act has been held to be valid and the,
sections, with which we are concerned, viz., ss. 56 and 59,
have also been held to be valid. We do not find any
reference, unfortunately, in the judgment of the High Court,
to these two decisions of this Court.
In the first decision, it is stated at p. 518 of the
Reports, that the Act is based on the principle that it is
desirable, in the larger interests of society, that the
freedom of movement, and residence of a comparatively fewer
number of people, should be restrained, so that the majority
of the community may move and live in peace and harmony, and
carry on their peaceful avocations untrammelled by any fear
or threat of violence to their person or property. In
particular, it is also stated that the individuals right to
reside in and move freely in any part of the territory of
India, has to yield to the larger interests of the
community. This Court further states that ss. 56 and 57 of
the Act, broadly speaking, correspond to s. 46 of Act IV of
1890 and s. 27 of Act IV of 1902. The scheme of s. 59 is
dealt with at p. 521, and the criticism, levelled against
that section, is rejected. It is further emphasized, at p.
522, that the proceedings, contemplated by s. 57, or for the
matter of that, sections 55 or 56, are not prosecutions for
offences or judicial proceedings, though the officer or
authority, charged with the duty aforesaid, has to examine
the information, laid before him, by the police, and that
the police force is charged with the duty, not only of
detection of offences and of bringing offenders to justice,
but also of preventing the commission of offences, by
persons with previous records of conviction, or with
criminal propensities.
In particular, a contention appears to have been raised that
as only general nature of the material allegations have to
be given in the notice, issued under s. 59, and, as it did
not further provide for particulars to be supplied to such a
person, it would be very difficult for a party to urge, in
appeal before the State Government
(1) [1956] S. C. R. 506.
(2) [1956] S. C. R. 533.
756
under s. 60, that there was no material, before the
authority concerned, upon which it could have based its
order. This objection ,was repelled by this Court, at p.
524, as follows
"But in the very nature of things it could not
have been otherwise. The grounds available to
an externee had necessarily to be very limited
in their scope because if evidence were
available which could be adduced in public,
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such a person could be dealt with under the
preventive sections of the Code of Criminal
Procedure, for example, under section 107 or
section 110. But the special provisions now
under examination proceed on the basis that
the person dealt with under any of the sec-
tions 55, 56 or 57 is of such a character as
not to permit the ordinary laws of the land
being put in motion in the ordinary way,
namely, of examining witnesses in open court
who should be cross-examined by the party
against whom they were deposing. The
provisions we are now examining are plainly
intended to be used in special cases requiring
special treatment, that is, cases which cannot
be dealt with under the preventive sections of
the Code of Criminal Procedure."
In the second decision, where this Court had to consider
,specifically the scope of s. 56, it has been held that the
common arguments, regarding ss. 56 to 59, had already been
dealt with and discussed in the first decision. The parties
against whom the order ,of externment had been passed, under
s. 56, specifically challenged the notice, issued under s.
59, on the ground that the particulars of the evidence,
against them, and of their alleged activities, had not been
mentioned and that amounted to not giving a reasonable
opportunity to explain, as envisaged, under s. 59. This
contention was disposed of, by this Court, on the ground
that it had been dealt with, in the judgment, given by it,
in the earlier decision, to which we have already referred.
Ultimately, s. 56 was held to be valid and the notice,
issued under s. 59, was also held to be valid.
In our opinion, in considering as to whether the notices,
issued in the present cases, under s. 59, suffer from any
infirmity, the ,observations of this Court, in Hari Khemu
Gawali’s case(1), extracted above, will have to be borne in
mind.
During the course of the arguments, counsel for the
respondent, have drawn our attention to a decision. of the
Bombay High .Court in In re: Govind Pandurang(2) and that of
the Gujarat High Court, in Jawaher v. Sub-Divisional
Magistrate(3), inter-
(1) [1956] S. C. R. 506. (2) A. 1. R. 1956 Dom. 61.
(3) (1962) 3 Guj. L. R. 1041.
757
preting s. 59 of the Act. But, we are not adverting to
those decisions, in view of the decisions of this Court,
referred to above.
In the instant case, the learned Judges of the Gujarat High
Court, accept the position that under s. 59, of the Act,-the
notice should inform the person, in writing, of the general
nature of the material allegations, against him, and it need
not contain particulars. But they have held that the
allegations, regarding the two respondents, consuming
eatables, from places of public entertainment, without
payment, and beating persons, when legal dues were demanded,
contained in the two notices, are vague. The reasoning of
the learned Judges that the said allegations should have
contained all the particular places of public entertainment,
or what particular establishment the respondents were
supposed to have visited, is not warranted, by the
provisions of s. 59. In fact, if we may say so, with
respect, there is a slight inconsistency in the reasoning of
the learned Judges, because, in the later part of the
judgment they say that a party is not entitled to be
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supplied with particulars of the allegations made against
him. We are therefore. not inclined to accept the above
reasoning of the Gujarat High Court. The notices, referred
to the periods during which the acts are stated to have been
committed, as well as the area where they are said to have
been committed. No doubt, the expression ’place of public
entertainment’, is defined in s. 2(10) of the Act; but the
mere fact that the said definition takes in various types of
places, does not militate against the allegation No. 1, in
Special Criminal Application No. 3 of 1965, or allegation
No. 3, in the connected application, being of a general
nature of the material allegations, as contemplated, under
s. 59. Without attempting to be exhaustive we may state
that when a person is stated to be a ’thief’, that alle-
gation is vague. Again, when it is said that ’A stole a
watch from X on a particular day and at a particular place’,
the allegation can be said to be particular. Again, when it
is stated that ’X is seen at crowded bus stands and he picks
pockets’ it is of a general nature of a material allegation.
Under the last illustration, given above, will come the
allegations, which, according to the Gujarat High Court,
suffer from being too general, or vague. Considering it
from the point of view of the party against whom an order of
externment is proposed to be passed, it must be emphasized
that when he has to tender an explanation to a notice, under
s. 59, he can only give an explanation, which can be of a
general nature. It may be open to him to take a defence, of
the action being taken, due to mala fides, malice or
mistaken identity, or he may be able to tender proof of his
general good conduct, or alibi, during the period covered by
the notice and the like. The allegations made in the
notices, issued under s. 59, as against the respective
respondents, in our opinion, contain the general nature of
the material allegations made against each of
758
them, in respect of which the respondents had been given a
reasonable opportunity of tendering an explanation, regard-
ing them. Therefore, it follows that the view of the
Gujarat High Court that the notices, under s. 59, and the
orders of externment, passed under s. 56, are invalid,’
cannot be sustained. The orders of the Gujarat High Court
are, accordingly, set aside, and these criminal appeals,
allowed. But, we may make it again clear, that in spite of
our decision, in favour of the appellants, no action can be
taken against the respondents, in these appeals, on the
basis of the orders, which are now held to be valid.
R.K.P.S. Appeals allowed.
759