Gujarat HC: Externing Authority Has No Power to Send the Externee to Jail Custody

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The petitioner has prayed for quashing and setting aside of the impugned order whereby the petitioner was ordered to be sent to District Jail, Bhuj which is allowed by the Court, and the order of Sub Divisional Magistrate is hereby quashed and set aside.

Brief facts

The petitioner has prayed for quashing and setting aside the impugned order passed by the Sub Divisional Magistrate, Junagadh in Externment Case No. 24 of 2020, whereby the petitioner was ordered to be sent to District Jail, Bhuj. The Sub Divisional Magistrate while passing the order as stated to have invoked the provision under Section 62 of the Gujarat Police Act, 1951

Petitioner’s Arguments

The learned advocate Mr. R.N.Kapadia for the petitioners submitted before the Hon’ble Court that the impugned order is illegal and the Sub Divisional Magistrate has no such authority to detain the petitioner and send him to jail custody. He has submitted that the implementation of the said order has led to the illegal detention of the present petitioner where the proceedings under Section 142 of the Gujarat Police Act have already been initiated against him for violation of the externment order. He has submitted that the petitioner has already been granted bail for the proceedings under Section 142 of the Gujarat Police Act.

He has further submitted that the petitioner has not been accorded the opportunity of defending himself and the detention in jail would amount to the pre-trial conviction without any authority of law. He has placed reliance on the judgment in the case of Rameshji Panchaji Thakor Vs. The state of Gujarat, reported in 2001(1) GLR 171 and has submitted that if a person is externed from a certain area for a certain period and during that period the said externee re-enters in the same area, then in accordance with the provisions of Section 62 of the Gujarat Police Act, the authority concerned may cause him to be arrested and get him removed from that concerned area.

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Thereafter, the only recourse available to the concerned authority would be to prosecute the defaulter under Section 142 of the Gujarat Police Act. He has also submitted that Section 62 of the Gujarat Police Act nowhere permits the concerned authority to detain such a person in jail.

Respondent’s Arguments

The learned APP Mr. Pranav Trivedi for Respondent before the Hon’ble Court that the concerned Sub Divisional Magistrate has given reasons for passing the order and as the petitioner was found to be guilty in breaching the conditions of externment, the Sub Divisional Magistrate has passed an order under the provisions of Section R/SCR.A/4778/2021 of the Gujarat Police Act finding the petitioner to be in continuous breach of order and considering the fact of defaulter’s knowledge of the provision of law found fit to sent the petitioner to District Jail, Bhuj.

In the case of Rameshji Panchaji Thakor (Supra), it has been laid down that Section 62 of the Gujarat Police Act does not, in any manner, invest the externing authority with a power to send the externee in jail custody who is found to be in continuous breach of condition of externment order even after his removal from the area. It has also been observed that such interpretation of trusting the authority to empower the externing authority to send the externee to jail would amount to making the provisions under Section 142 of the Gujarat R/SCR.A/4778/2021 Police Act redundant, which is in regard to the punishment for breach of externment order.

Court’s Observations

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Regard was paid to the submissions advanced by the learned advocates for both the petitioners as well as the respondent. Section 62 of the Gujarat Police Act and judgments like Rameshji Panchaji Thakor Vs. The state of Gujarat, reported in 2001(1) GLR 171 were referred to by the Court to arrive at the decision.

Court’s Decision

In the light of the submissions put forth by the learned counsel for the applicant, the Court held, as has been directed in the referred case of Rameshji Panchaji Thakor (Supra), externing authority would have no power under Section 62 of the Bombay Police Act to send the externee to the jail custody, the present petitioner is required to be released immediately. Thus, the present application is allowed and the impugned order of the Sub Divisional Magistrate is hereby quashed and set aside. 

Click here to read the Judgement


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