PETITIONER:
HARI KHEMU GAWALI
Vs.
RESPONDENT:
THE DEPUTY COMMISSIONER OF POLICE,BOMBAY AND ANOTHER.
DATE OF JUDGMENT:
08/05/1956
BENCH:
SINHA, BHUVNESHWAR P.
MUKHERJEE, BIJAN KR. (CJ)
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
IMAM, SYED JAFFER
CITATION:
1956 AIR 559 1956 SCR 506
ACT
Bombay Police Act, 1951 (Bombay Act XXII of 1951), s. 57--
Constitutional validity-Restrictions on individual right to
reside in and move freely in any part of India-
Reasonableness-Order of externment-Grounds of the order-
Validity-Sufficiency of evidence on which the order is made-
Whether can be examined by the Court-Constitution of India,
Art. 19(1)(d), (e) and (5).
HEADNOTE
Section 57, of the Bombay Police Act, 1951 provides that if
a person has been convicted of certain offences detailed
therein, "the Commissioner, the District Magistrate or the
Sub-Divisional Magistrate specially empowered by the State
Government in this behalf, if he has reason to believe that
such person is likely again to engage himself in the
commission of an offence similar to that for which he was
convicted, may direct such person to remove himself outside
the area within the local limits of his jurisdiction, by
such route and within such time as the said officer may
prescribe and not to enter or return to the area from which
he was directed to remove himself".
Under the provisions of the said section an order of
externment was passed against the petitioner who challenged
the order on the grounds that s. 57 contravened clauses (d)
and (e) of Article 19(1) of the Constitution, that the
provisions of the said section imposed unreasonable
restrictions on the petitioner’s fundamental rights of free
movement and residence and that the order passed against him
was illegal inasmuch as it was based on vague allegations
and inadmissible material.
Hold, per S. R. DAS C.J., VENKATARAMA AYYAR, B. P. SINHA and
JAFER IMAM JJ. (JAGANNADHADAS J. dissenting)
(1) Section 57 of the Bombay Police Act, 1951 is not uncon-
stitutional, because, it is an instance of the State taking
preventive measures in the interests of the public and for
safeguarding individual rights, by preventing a person, who
has been proved to be a criminal from acting in a way which
may be a repetition of his criminal propensities, and the
restrictions that it imposes on the individual’s right to
reside in and move freely in any part of India are
reasonable within the meaning of clause (5) of Art. 19 of
the Constitution.
(2) The restrictions cannot be said to be unreasonable on
the ground that the person dealt with under s. 57 of the Act
may be
507
directed to remove himself altogether outside the limits of
the State of Bombay as the Act extends to the whole of the
State, because, unless the person makes himself so obnoxious
as to render his presence in every part of the State a
menace to public peace and safety, every District authority
would not think of acting in the same way in respect of the
same person.
(3)It cannot be laid down as a universal rule that unless
there isa provision for an Advisory Board which could
scrutinise the material on which the officers or authority
contemplated by s. 57 had taken action against a person,
such a legislation would be unconstitutional.
(4) The provisions in ss. 55, 56, 57 and 59 of the Act are
not invalid on the ground that only the general nature of
the material allegations against the person externed are
required to be disclosed and that it would be difficult for
him to get the matter judicially examined. The provisions
are 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.
(5)The legality of the order of externment cannot be im-
pugned on the ground that there was not sufficient evidence
to bring the charge home to the petitioner, because these
are all matters which cannot be examined by this Court in an
objective way, when the legislature has provided for the
subjective satisfaction of the authorities or officers who
have been entrusted with the duty of enforcing the special
provisions of the Act.
Gurbachan Singh v. The State of Bombay ([1952] S.C.R. 737),
followed.
Per JAGANNADHADAS J:-Section 57 of the Act is constitu-
tionally invalid because:
(1)Clause (a) of s. 57 of the Act not being confined to off"
serious in their nature or with reference to the attendant
circumstances within the Chapters specified therein,
prevention of the repetition thereof cannot be considered a
reasonable restriction. It is in excess of what may be
considered justifiable.
(2)The previous commission of an offence of the category
specified, without any reference to the time, environment
and other factors has no rational relation to the criterion
of "reasonableness in the interest of public".
(3)The exercise of the power not being limited by the
consideration of non-availability of witnesses is also not
rationally related to the criterion of "reasonableness in
the interest of the public".
Gurbachan Singh v. The State of Bombay ([1952] S.C.R. 737),
distinguished.
JUDGMENT
ORIGINAL JURISDICTION: Petition No. 272 of 1955.
66
508
Petition under. Article 32 of the Constitution of India for
the enforcement of Fundamental Rights.
Purshottam Trikamdas, V. R. Upadhya, J. B. Dadachanji and S.
N. Andley, for the petitioner.
M.C. Setalvad, Attorney-General for India, B. Sen and R. H.
Dhebar, for the respondents.
1956. May 8. The Judgment of S. R. Das C.J. and Venkatarama
Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha
J. Jagannadhadas J. delivered a separate judgment.
SINHA J.-This petition under article 32 of the Constitution
challenges the vires of certain provisions of the Bombay
Police Act, XXII of 1951, which hereinafter will be referred
to as "The Act" with particular reference to section 57
under which the externment order dated the 8th November 1954
was passed against the petitioner by the first respondent,
the Deputy Commissioner of Police, Crime Branch (1), C.I.D.,
Greater Bombay. The second respondent is the State of
Bombay. The petitioner, who claims to be a citizen of
India, was born in Bombay and had been, before the order of
externment in question, residing in one of the quarters of
the City of Bombay. He keeps bullock carts for carrying on
his business of transport and cows for selling milk. The
petitioner alleges that the Prohibition Police of the City
instituted twelve prohibition cases against him which all
ended either in his discharge or acquittal. An "externment
order" was passed against him in August 1950. That order
was set aside by the Government in December 1950, on appeal
by the petitioner. In December 1953 an order of detention
was passed against him under the Preventive Detention Act,
1950, and he was detained in the Thana District prison. He
moved the High Court of Bombay under article 226 of the
Constitution against the said order of detention.- He was
released from detention before the said petition was
actually heard by the High Court. Thereafter, the
petitioner along with others was charged with possession of
liquor. The case went
509
on for about two years when he was ultimately discharged by
the Presidency Magistrate on the 24th February 1955 as the
prosecution witnesses were not present on the date fixed for
hearing of the case. On the night of the 9th October 1954
the petitioner was arrested along with his companions a
little after midnight by members of the police force
designated "Ghost Squad", which was a special wing of the
Crime Branch of the C.I.D., on the allegation made by the
police that they were seen running away on the sight of a
police van and that they were chased and arrested and were
found in possession of knives and other weapons. In October
1954 the petitioner was served with a notice under section
57 read with section 59 of the Act. It is convenient at
this stage to set out the said notice in extenso, which is
Exhibit A to the petition filed in this Court:-
"Notice under section 59 of the Bombay Police Act, 1951.
Name, address & age: Hari alias Dada Khemu Gawali,
Hindu aged about 37 years."
Occupation: Bullock cart owner.
Residence: Room No. 45, 1st floor, Haji Kassam Chawl,
Lamington Road.
Under section 59 of the Bombay Police Act, 1951 (Bombay Act
XXII of 1951), you are hereby informed that the following
allegations are made against you in proceedings against you
under section 57 of the said Act.
In order to give you opportunity of tendering your
explanation regarding the said allegations, I have appointed
11 a.m. on 25-10-1954 to receive your explanation and to
hear you and your witnesses, if any, in regard to the said
allegations. I, N. P. Paranjapye, Superintendent, C.B.I.,
C.I.D., therefore require you to appear before me at H. P.
0. Annexe I (place) on the said date viz. 25-10-1954 at 11
a.m. 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 inquiry of the said proceedings. Should you fail
to appear before me and to pass the
510
bond as directed above, I shall proceed with the inquiry in
your absence. Take note:
Allegations:-
1. That you have been convicted of offences as per
particulars mentioned below:-
-------------------------------------------------------------
serial Court & date of section sentence police
no District convinction of law station &
case No.
-------------------------------------------------------------
1. H. C. 14-10-1938 304/109 6 yrs. Nagpada Ps
Bombay I. P. C. R.I. C. R. No.
324/109 2 yrs. 127/38
I.P. C. R.I. (Con-
currently).
2. That you were arrested on 29-3-1948 in connection with
Nagpada P.S.C.R. No. 273 of 1948 u/s 143, 147, 148, 149,
353, I.P.C. wherein you along with one Ramchandra Ishwarbhai
and others committed rioting and criminal assault on a
public servant, viz. a police constable No. 4459/D to deter
him from the execution of his lawful duties but you were
discharged in the said case due to lack of sufficient
evidence.
3. That you were again arrested on 2-5-1948 in connection
with Nagpada P.S.C.R. No. 353 u/s 143, 144, 146, 147, 148,
149, 324, I.P.C. wherein you along with one Rajaram Khemu
Gawli and 7 others committed rioting armed with deadly
weapons, viz., lathis, sodawater bottles etc. and caused
hurt to one Gopal Khemu Gawli but you were discharged in the
said case for want of sufficient evidence.
4. That you were again arrested on 3-6-1949 in connection
with Nagpada P.S.C.R. No. 336 of 1949 u/s 143, 147, 149,
225, 225-B, 332, I.P.C. wherein you along with one Shri
Vithal Baloo and others committed rioting, assaulted a
public servant, viz. a police officer (Shri S. K. Kothare)
to deter him from the lawful discharge of his duties and
made 3 persons in the lawful custody of the police to
escape, but were discharged in the said case for want of
sufficient evidence.
5. That now you have been arrested on 9-10-1954 at about
12-50 a.m. in the company of 7 others, viz.
511
(1)Amir Masud (2) Francis Sherao & China (3) Antoo Narayan
(4) Abdul Wahab Abdul Gafoor (5) Laxman Rama (6) Narayan
Tukaram and (7) Rajaram Vishnoo out of whom persons
mentioned at Nos. I and 6 are, previous convicts and that
at the time of arrest you and persons mentioned at Nos. 1,
2, 3 and 4 were, armed with deadly weapons to wit, clasp
knives, iron bar and a lathi, and thus you were reasonably
suspected to be out to commit an offence either against
property or person; And that you are likely again to engage
yourself in the commission of a similar offence falling
either under Chapter XVI or XVII of the Indian Penal Code.
Sd. N. P. Paranjapye
Superintendent of Police, Crime
Branch (I), C.I.D.
L.T.I. of Hari Dada Khemu Gawli.
The petitioner appeared before the Superintendent on the 8th
November 1954 with his counsel and filed a long petition
containing allegations running into 16 paragraphs showing
cause against the order of externment proposed to be passed
against him. That petition is Ex. B. The petitioner
accepted the correctness of the allegation contained in the
first paragraph of Ex. A set out above, but denied the
truth of the other allegations made therein against him
which he characterised as based on "old prejudice and sus-
picion". As regards his conviction referred to in the first
paragraph aforesaid, he stated:-
"I had unfortunately a conviction in 1938 when was a mere
youth. I have lived a clean and honourable life ever
since."
Then he goes on to make reference to the other cases charged
against him and claimed that he had been "discharged in
those cases for want of sufficient evidence".
The first respondent aforesaid ultimately passed the order
of externment which is Exhibit C to the petition, on the 8th
November 1954. After reciting the previous conviction which
was for offences under Chapter XVI, Indian Penal Code and
that the petitioner was likely again to engage in the
commission
512
of similar offences and saying that he was satisfied about
the matters contained in the previous notice, the first
respondent directed the petitioner under section 57 of the
Act to remove himself outside the limits of Greater Bombay
within two days from the date of the final order in the case
pending against him, as noted in the order, for a period of
two years from the date of the order, and not to enter or
return to the said area of Greater Bombay without the
permission in writing of the Commissioner of Police, Greater
Bombay, or the Government of Bombay. The petitioner
preferred an appeal to the Government of Bombay against the
said order of externment. But the appeal was dismissed.
Substantially on those allegations this Court has been moved
under article 32 of the Constitution.
The first respondent has sworn to the affidavit filed in
this Court to the effect that the petitioner has been fully
heard by the authorities before the order impugned in this
case was passed. It is further stated in the affidavit that
in the previous case in which the petitioner had been
convicted be bad been found guilty along with his brother
Rajaram of having caused the death of a person who had given
evidence against them in a previous trial. The first
respondent further stated in the affidavit that the material
examined by him before passing the order impugned showed
that since 1948 the petitioner had been resorting to
violence and was concerned in a number of cases involving
acts of violence, namely:-
1. In March 1948 a police constable was assaulted. Though
the petitioner was one of the persons concerned with the
crime, he was not charge-sheeted because sufficient evidence
was not forthcoming against him.
2. In April 1948 the petitioner’s brother had charged him
and eight others with having thrown sodawater bottles and
used lathis. The Presidency Magistrate, 17th Court,
Mazgaon, Bombay, had to adjourn the case several times for
recording evidence of witnesses who remained absent and
ultimately the court refused to grant further adjournment
for the
513
production of witnesses and the case ended in a discharge
for want of evidence.
3. In May 1949 the police hadarrested three persons
including Rajaram aforesaid, the petitioner’s brother for
being concerned in sale of illicit liquor. While those
arrested persons were being taken to the police lorry for
being taken to the police station, the petitioner and other
persons forcibly rescued those arrested persons from the
custody of the police. But the case ultimately failed in
August 1950 because the witnesses failed to turn up to give
evidence against the accused including the petitioner.
4. At about 12-50 a.m. on 9th October 1954, the Special
Squad, Crime Branch, C.I.D., Bombay, while proceeding on
their rounds noticed the petitioner and seven others armed
with an iron bar and lathi. On seeing the police van, they
started running away and were chased and arrested by the
police force. On arrest the petitioner and his other
associates were found carrying "clasp knives". The
petitioner and three of the seven arrested persons were
found smelling of alcohol. The -petitioner was placed on
his trial for offences under the Bombay Prohibition Act and
the Bombay Police Act. He was acquitted by the learned
trial Judge because of discrepancies in the evidence of some
of the prosecution witnesses. The respondent further
averred that after examining all the material against him in
the light of his previous conviction under sections 304/109
and 324/109, Indian Penal Code, he was satisfied that the
petitioner. was likely again to engage in the commission of
offences similar to those for which he had been previously
convicted. Accordingly he passed the order of externment
against the petitioner, as set out above.
In support of the petition which was heard -along with
Petitions Nos. 439 and 440 of 1955 (in which the orders
impugned had been passed under section 56 of the Act and
which are being disposed of by a separate judgment) the
leading argument by Shri Purshotham raised the contentions,-
(1) that section 57 of the Act contravened clauses (d) and
(e) of article 19(1) of the Constitution and that the
provisions
514
of that section imposed unreasonable restrictions on the
petitioner’s fundamental rights of free movement and
residence; and (2) that the order passed under section 57
against the petitioner is illegal inasmuch as it is based on
vague allegations and inadmissible material, for example, on
orders of discharge or acquittal. Each of the two broad
grounds has been elaborated and several points have been
sought to be made under each one of those heads. It has
been contended that the police have been vested with un-
limited powers in the sense that any person whom they
suspect or against whom they have their own reasons to
proceed can be asked to remove, not only from any particular
area, like Greater Bombay, but from the entire State of
Bombay. Even if one order does not ask a person to remove
himself out of the entire State, each authority within its
respective local jurisdiction can ask a particular person to
go out of that area, so that that person may find himself
wholly displaced without any place to go to. Unlike the law
relating to preventive detention, there is no provision for
an Advisory Board which could examine the reasonableness of
the order proposed to be passed or already passed, so that
there is no check on the exercise of power by the police
authorities under the-Act, however flagrant the abuse of the
power may have been. It is also contended that the
provisions as regards hearing by the police authorities and
appeal to the State Government are illusory. The police is
both the prosecutor and the judge and the remedy provided by
the Act is a mere eye-wash. It is also pointed out that all
kinds of offences have been clubbed together which have no
rational connection with one another. Reliance was placed
on certain observations made by this Court in a number of
decisions,, viz., Chintaman Rao v. The State of Madhya
Pradesh(1); The State of Madras V. V. G. Row(2); Thakur
Raghubir Singh v. Court of Wards, Ajmer(3); Messrs Dwarka
Prasad Laxmi Narain v. State of U. P.(4); and Ebrahim Vazir
Mavat v. State of Bombay(5).
(1)[19SO] S.C.R. 759. (2) [1952] S.C.]&. 597. (3) (1953]
S.C.R. 1049. (4) (1954] S. CB. 803.
(5) [1954] S.C.R. 983.
515
Section 57 of the Act which is particularly impugned in this
case is in these terms:-
"Removal of persons convicted of certain offences.
If a ,person has been convicted-
(a) of an offence under Chapter XII, XVI or XVII of the
Indian Penal Code, or
(b) twice of an offence under section 9 of the Bombay
Beggars Act, 1945, or under the Bombay Prevention of
Prostitution Act, 1923, or
(c) thrice of an offence within a period of three years
under section 4 or 12-A of the Bombay Prevention of Gambling
Act, 1887, or under the Bombay Prohibition Act, 1949,
the Commissioner, the District Magistrate or the Sub-
Divisional Magistrate specially empowered by the State
Government in this behalf, if he has reason to believe that
such person is likely again to engage himself in the
commission of an offence similar to that for which he was
convicted, may direct such person to remove himself outside
the area within the local limits of his jurisdiction, by
such route and within such time as the said officer may
prescribe, and not to enter or return to the area from which
he was directed to remove himself.
Explanation-For the purpose of this section Can offence
similar to that for which a person was convicted’ shall
mean-
(i) in the case of a person convicted of an offence
mentioned in clause (a), an offence falling under any of the
Chapters of the Indian Penal Code mentioned in that clause,
and
(ii) in the case of a person convicted of an offence
mentioned in clauses (b) and (c), an offence falling under
the provisions of the Acts mentioned respectively in the
said clause&".
In order to attract the provisions of this section, two
essential conditions must be fulfilled, viz.; (1) that there
should have been a previous conviction under Chapter XII,
XVI or XVII, Indian Penal Code, or two previous convictions
under the Acts mentioned
516
in clause (b), or three previous convictions within a period
of three years under the Acts mentioned in clause (c); and
(2) that the authority named should have reason to believe
that a person coming within the purview of any of the
clauses (a), (b) and (c) is likely again to engage himself
in the commission of an offence similar to that for which he
had been previously convicted; that is to say, for an
offence falling under any of the three chapters mentioned in
clause (a), or if he had been twice convicted under the
Beggars Act, or the Prevention of Prostitution Act, or
thrice convicted under the Prevention of Gambling Act or the
Prohibition Act; so that, a previous conviction for
"offences relating to coin and Government stamps" has been
equated with one for "offences affecting the human body"
(chapter XVI) or "offences against property" (chapter XVII)
of the Indian Penal Code. I Chapter XII contains sections
230 to 263(A). Chapter XVI contains section 299 to section
377 and Chapter XVII contains section 378 to section 462 of
the Code. In other words, one convicted for counterfeiting
coin may in terms of the impugned section 57 be said to have
engaged himself in the commission of a similar offence if he
is likely to use criminal force or to commit theft or
extortion or robbery or dacoity or criminal misappropriation
of property or criminal breach of trust. It has therefore
been rightly pointed out on behalf of the petitioner that
the range of the offences referred to in clause (a) of
section 57 is very wide indeed and that it is difficult to
point out any rational basis for clubbing them together. A
person convicted under Chapter XII, Indian Penal Code of
counterfeiting Indian Coin or Government stamps may rightly
be called the enemy of public finance and revenue, but is
far removed from a person who may be convicted of murder or
other offences against human body or against private
property. But the legislature in its wisdom has clubbed all
those offences together and it is not for this Court to
question that wisdom provided the provisions of the Act do
not impose unreasonable restrictions on right to freedom.
Conviction
517
under the Bombay Beggars Act and the Bombay Prevention of
Prostitution Act have been clubbed together under clause
(b). and similarly previous convictions under the Bombay
Prevention of Gambling Act and Bombay Prohibition Act have
been clubbed together. So the previous convictions under
the three clauses aforesaid have been placed in three
different categories.
Article 19 of the Constitution has guaranteed the several
rights enumerated under that article to all citizens of
India. After laying down the different rights to freedom in
clause(1), clauses (2) to (6) of that article recognise the
right of the State. to make laws putting reasonable
restrictions on those rights in the interest of the general
public, security of the State, public order, decency or
morality and for other reasons set out in those sub-clauses,
so that there has to be a balance between individual rights
guaranteed under article 19(1) and the exigencies of the
State which is the custodian of the interests of the general
public, public order, decency or morality and all other
public interests which may compendiously be described as
social welfare. For preventing a breach of the public peace
or the invasion of private rights the State has sometimes to
impose certain restrictions on individual rights. It
therefore becomes the duty of the State not only to punish
the offenders against the penal laws of the State but also
to take preventive action. "Prevention,is better than cure"
applies not only to individuals but also to the activities
of the State in relation to the citizens of the State. The
impugned section 57 is an instance of the State taking
preventive measures in the interest of the public and for
safeguarding individual’s rights. The section is plainly
meant to prevent a person who has been proved to be a
criminal from acting in a way which may be a repetition of
his criminal propensities. In doing so the State may have
to curb an individual’s activities and put fetters on his
complete freedom of movement and residence in order that the
greatest good of the greatest number may be conserved. The
law is based on the principle that it is desirable inthe
larger
518
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. The individual’s right to reside
in and move freely in any part of the territory of India has
to yield to the larger interest of the community. That the
Act is based on sound principle cannot be gainsaid. Now the
only question is whether the provisions of the impugned
section are not justified in the larger interest of the
community, or, in other words, whether they impose a larger
restriction than is reasonably necessary to meet the
situation envisaged by the section. From that point of view
we shall now examine the other arguments advanced to show
that the provisions of the impugned section are unreasonable
restrictions on individual right to reside in and move
freely in any part of India.
It has been observed by this Court in the case of ’Gurbachan
Singh v. The State of Bombay(1) at p. 742, as per Mukherjea,
J. (as he then was):-
"It is perfectly true that the determination of the question
as -to whether the restrictions imposed by a legislative
enactment upon the fundamental rights of a citizen
enunciated in article 19 (1) (d) of the Constitution are
reasonable or not within the meaning of clause (5) of the
article would depend as much upon procedural part of the law
as upon its substantive part; and the court has got to look
in each case to the circumstances under which and the manner
in which the restrictions have been imposed".
In this case the attack against’ section 57 of the Act is
directed both against the procedural part of the law and the
substantive part. It has been contended that the person
dealt with under section 57 may be directed to remove
himself altogether outside the limits of the State of Bombay
because the Act extends to the whole of the State of Bombay.
The provisions of section 57 can be applied either by the
Commis-
(1) [1952] S.C.R. 737.
519
sioner of Police for Greater Bombay and other areas for
which a Commissioner may be appointed under section 7 or by
the District Magistrate or a Sub-Divisional Magistrate
specially empowered by the State Government in that behalf.
Any one of the aforesaid authorities. has power to direct an
individual dealt with under section 57 to remove himself
outside the area within the local limits of his
jurisdiction. Hence none of those authorities has the power
to direct that person to remove himself outside the entire
State of Bombay. The situation envisaged by the argument
that a person may be called upon to remove himself out of
the limits of the entire State of Bombay would not
ordinarily arise because the idea underlving the provisions
of sections 55 to 57 is the "dispersal of gangs and removal
of persons convicted of certain offences" as would appear
from the sub-heading II in chapter V, which is headed
"special measures for maintenance of public order and safety
of State". A gang of criminals or potential criminals
operates or may intend to operate within certain local
limits and the idea behind the provisions of section 57 is
to see to it that a person with previous conviction who may
have banded together with other such persons should be
disbanded and hounded out of the limits of his ordinary
activities, his associates also are to be similarly dealt
with, so that the gang is broken up and the different
persons constituting it may be removed to different parts of
the State so as to reduce their criminal activities to the
minimum. Unless a person makes himself so obnoxious as to
render his presence in every part of the Bombay State a
menace to public interest including public peace and safety,
every Commissioner of Police or’ district Magistrate or Sub-
Divisional. Magistrate would not think of acting in the
same way in respect of the same person. Hence, in our
opinion, there is no substance in this argument. It may be
mentioned in this connection that previous to the enactment
of the impugned Act there was the Bombay District Police Act
IV of 1890 which applied to the whole Presidency of Bombay
except the Greater Bombay (omitting all references to Sind)
and the City
520
of Bombay Police Act, IV of 1902, applied to the City of
Bombay except certain specified sections which applied to
the whole of the Presidency of Bombay; so that the two Acts
aforesaid covered the whole of the State of Bombay as it was
constituted after Independence. The two Acts aforesaid were
repealed by the impugned Act which consolidated the law for
the regulation of the Police Force in , the State of Bombay
which appears from the following preamble of the Act-.-
"Whereas it is expedient to amalgamate the District and
Greater Bombay Police Forces in the State of Bombay into one
common Police Force and to introduce uniform methods
regarding the working and control of the said Force
throughout the State".
Broadly speaking, section 46 of Act IV of 1890 and. section
27 of Act IV of 1902 correspond to the provisions of
sections 56 and 57 of the Act.
It was next contended that unlike Preventive Detention laws
there was no provision in the impugned law for an Advisory
Board which could scrutinise the material on which the
officers or authorities contemplated by section 57 had taken
action against a person. It cannot be, and has not been
laid down, as a universal rule that unless there is a
provision for such an Advisory Board such a legislation
would necessarily be condemned as unconstitutional. The
very fact that the Constitution in article 22(4) has made
specific provision for an Advisory Board consisting of
persons of stated qualifications with reference to the law
for Preventive Detention, but has made no such specific
provision in article 19 Would answer this contention. In
this connection reference may also be made to the decision
of this Court in the case of N. B. Khare, v. State, of
Delhi(1) which dealt with the constitutionality of the East
Punjab Public Safety Act of 1949 with reference to the
provisions of article 19 of the Constitution. In that
legislation there was a provision for an Advisory Board
whose opinion, however, had no binding force. The Act was
not struck down by this Court. On the other hand, in the
case
(1) [1950] S.C.R. 519.
521
of State of Madras v. V. G. Row(1), section 15(2)(b) of the
Indian Criminal Law (Amendment) Act, 1908, as amended by the
Indian Criminal Law Amendment (Madras) Act, 1950, was held
to be unconstitutional as the restrictions imposed on the
fundamental right to form associations were not held to be
reasonable in spite of the fact that there was a provision
for an Advisory Board whose opinion was binding on the
Government. Hence it cannot be said that the existence of
an Advisory Board is a sine qua non of the constitutionality
of a legislation such as the one before us.
It was next’ contended that the proceedings are initiated by
the police and it is the police which is the judge in the
case and that therefore the provisions of the Act militate
against one of the accepted principles of natural justice
that the prosecutor should not also be the judge. In order
to appreciate this argument reference --has to be made to
the provisions of section 59 of the Act; It provides that
before action is taken under sections 55, 56 or 57 of the
Act, the authority entrusted with the duty of passing orders
under any one of those sections or any officer above the
rank of an Inspector authorised by that officer or authority
shall inform the person proceeded against in writing "of the
general nature of the material allegations against him" in
order to give him a reasonable opportunity’ of explaining
his conduct. If that person wishes to examine any
witnesses, be has to be given an opportunity of adducing
evidence. That person has the right to file a written
statement and to appear in the proceeding by an advocate or
attorney for the purpose of tendering his explanation and
adducing evidence. If the person fails to appear or to
adduce evidence, the authority or officer has the right to
proceed with the enquiry and to pass such order as may
appear fit and proper. It is thus clear that the criticism
against the procedure laid down in section 59 is not
entirely correct. The evidence or material on ’the basis of
which a person may be proceeded against under any one of the
sections 55,
(1) (1952] S.C.R. 597.
522
56 or 57 may have been collected by police officers of the
rank of an Inspector of Police or of lower rank. The
proceedings., may be initiated by a police officer above the
rank of Inspector who has to inform the person proceeded
against of the general nature of the material allegations
against him. But the order of externment can be passed only
by a Commissioner of Police or a District Magistrate or a
Sub-Divisional Magistrate specially empowered by the State
Government in that behalf. Hence the satisfaction is not
that of the person prosecuting, if that word can at all be
used in the context of those sections. The person proceeded
against is not prosecuted but is put out of the harm’s way.
The legislature has advisedly entrusted officers of
comparatively higher rank in the police or in the magistracy
with the responsible duty of examining the material and of
being satisfied that such person is likely -again to engage
himself in the commission of an offence similar to that for
which he had previously been convicted. The proceedings
contemplated by the impugned section 57 or for the matter of
that., the other two 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. 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. As observed by
Patanjali Sastri, C. J. in the case of State of Madras V. V.
G. Row(1), "externment of individuals, like preventive
detention, is largely precautionary and based on suspicion".
To these observations may be added the following words in
the judgment of Patanjali Sastri, C. J., (supra) with
reference to the observations of Lord Finlay in Rex
v. Halliday(2):-
"The court was the least appropriate tribunal to investigate
into circumstances of suspicion on which such anticipatory
action must be largely based".
(1) (1952] S. C.R, 597, 609.
(2) [1917] A.G. 260, 269.
523
It is thus clear that in order to take preventive action
under section 57 of the Act the legislature has entrusted
police officers or magistrates of the higher ranks to
examine the facts and circumstances of each case brought
before them by the Criminal Investigation Department. But
the legislature has provided certain safeguards against
tyrannical or wholly unfounded orders being passed by the
higher ranks of the police or the magistracy.
It was next contended that the-provisions relating to
hearing any evidence that may be adduced by the police or by
the person proceeded against and right of appeal to the
State Government conferred by section 60 of the Act are
illusory.. We cannot agree that the right of appeal to the
State Government granted to the person proceeded against by
an order under section 57 is illusory because it is expected
that the State Government which has been charged with the
duty of examining the material with a view to being
satisfied that circumstances existed justifying a preventive
order of that nature, will discharge its functions with due
care and caution. Section 61 has provided a further
safeguard to a person dealt with under section 57 by
providing that though an order passed under section 55,
section 56 or section 57, or by the State Government under
section 60 on appeal shall not be called in question in any
court, he may challenge such an order in a court on the
ground (1) that the authority making the order or any
officer authorised by it had not followed the procedure laid
down in section 57, or (2) that there was no material before
the authority concerned upon which it could have based its
order, or (3) that the said authority was hot of opinion
that witnesses were unwilling to come forward to give
evidence in public against the person proceeded against. In
this connection it was argued on behalf of the petitioner
that section 59 only required the general nature of the
material allegations against the person externed to be
disclosed and that, as it did not further provide for
particulars to be supplied to such a person, it would be
very difficult for him to avail of at least the second
ground
68
524
on which section 61 permits him to get the matter judicially
examined. 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,
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 sections 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. Reliance was
placed on a number of decisions of this Court referred to
above on behalf of the petitioner to show that the terms of
section 57 impugned in this case could not come within the
permissible limits laid down by the Constitution in clause
(5) of article 19. But arguments by analogy may be
misleading. It has been repeatedly said by this Court that
it is not safe to pronounce on the provisions of one Act
with reference to decisions dealing with other Acts which
may not be in pari materia. The case nearest to the present
one is the decision of this Court in Gurbachan Singh v.
State of Bombay(1), where section 27(1) of the City of
Bombay Police Act was under challenge and the Court upheld
the constitutionality of that section. If anything, section
57 impugned in this case provides a surer ground for
proceeding against a potential criminal in so far as it
insists upon a previous conviction at least. At least in
clauses (b) and (c) it insists upon more than one previous
order of conviction against the person proceeded against,
thus showing that the authority dealing with such a
(1) (1952] S.C.R. 737.
525
person had some solid ground for suspecting that he may
repeat his criminal activities. It has not been contended
before us that the decision of this Court referred to above
does not lay down the correct law or that it was open to
challenge in any way. We do not think it necessary
therefore to consider in detail the other cases relied upon
on behalf of the petitioner.
It now remains to consider the legality of the order itself.
The bona fides of the order have not been questioned. What
has been urged against the legality of the order impugned is
that it is based on previous orders of discharge or
acquittal. It is said that those orders were passed because
there Was not sufficient evidence to bring the charge home
to the accused. The insufficiency of the evidence itself
may have been due to witnesses not being available to depose
in open court or they may have been overawed and their
testimony tampered with. These are all matters which cannot
be examined by this Court in an objective way, when the
legislature has provided for the subjective satisfaction of
the authorities or officers who have been entrusted with the
duty of enforcing those special provisions of the Act. It
cannot be laid down as a general proposition of law that a
previous order of discharge or acquittal cannot be taken
into account by those authorities when dealing with persons
under any one of the provisions we have been examining in
this case. it is not for us to examine afresh the materials
and to be satisfied that the order impugned is correct. But
the materials placed on the record of this case in the
affidavit sworn to by the officer who was responsible for -
the order impugned show at least one thing, namely, that the
petitioner has not been a victim of an arbitrary order.
For the reasons aforesaid, in our opinion, no grounds have
been made out for issuing any writ or direction to the
authorities concerned or for quashing the orders impugned.
The application is therefore dismissed.
526
JAGANNADHADAS J.-I regret ’I am unable to persuade myself to
agree with the view, which has commended itself to the
majority of the Court, as to the constitutional validity of
section 57(a) of the Bombay Police Act, 1951 (Bombay Act
XXII of 1951) (hereinafter referred to as the Act). This is
a provision which prima facie infringes the fundamental
right of a citizen under article 19(1)(d) and (e) of the
Constitution. It can be supported only if, having regard to
all the circumstances, it is possible to reach a satis-
factory conclusion that the imposition of the restrictions
as provided thereunder is in the interests of the general
public and reasonable. The fact that our Constitution which
declares fundamental rights also permits a law of preventive
detention under very limited safeguards and that such laws
have taken the pattern of the exercise of power by the
Government or by its officers for specified purposes on the
basis of their subjective satisfaction, has made -us prone
to reconcile ourselves to other kinds of restrictive laws
affecting personal liberty though based on the subjective
satisfaction of executive officers, if only they provide for
certain minimum safeguards such as supply of grounds, right
of representation, and the scope for review by a superior
authority or by an advisory body. If one is to adopt this
standard as furnishing the sine qua non of what is a reason-
able law of preventive restriction of personal liberty, it
may be possible to say that the provision under question
satisfies the test. But the law of preventive detention
stands on a very exceptional footing in our Constitution
inasmuch as it is specifically provided for in the
Constitution. The same Constitution has left the imposition
of other restrictions on personal liberty to be judged by
the courts with reference to the standards of
reasonableness, in the interests of the public. While
undoubtedly the above three safeguards may be taken as the
minimum required to satisfy the standard of reasonableness,
I am not prepared to assume that they are sufficient. It
appears to me that the constitutional validity of laws of
preventive restriction, as opposed to the laws of
527
preventive detention, have to be judged with reference to
standards which this Court has generally accepted as regards
the validity of restrictions on the other fundamental rights
under article 19(1) of the Constitution. As repeatedly held
by this Court, a proper balance must be struck between the
fundamental right of the citizen and the social control by
the State in order to evolve the permissible restriction of
the fundamental right under the Constitution.
Now there can be no doubt that the ordinary provisions in
the Criminal Procedure Code enabling the executive to take
preventive measures are often enough felt inadequate,
particularly in large cities and towns wherein there are
-loose congregations of population. In a general way
therefore it may be said that to arm the executive officers
with powers for preventive action against commission of
offences is not in itself unreasonable. Section 57 of the
Act appears in Chapter V of the Act beaded "Special measures
for maintenance of public order and safety of State" and is
under the sub-head II "Dispersal of gangs and removal of
persons convicted of certain offences". The substantive
provisions under head II are sections 55, 56 and 57.
Section 55 relates to control and dispersal of gangs.
Section 56 relates to removal of persons about to commit
offences and section 57 relates to removal of persons
previously convicted of certain offences. Sections 56 and
57 of the Act run as follows:
"56. Whenever it shall appear in Greater Bombay and other
areas for which a Commissioner has been appointed under
section 7 to the Commissioner and in other area or areas to
which the State Government may, by notification in the
Official Gazette, extend the provisions of this section, to
the District Magistrate, or the Sub-Divisional Magistrate
specially empowered by the State Government in that behalf
(a) that the movements of 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 that such person is engaged or is about to be
engaged in the commission of an offence involv-
528
ing force or violence or an offence punishable under Chapter
XII, XVI or XVII of the Indian Penal Code, or in the
abetment of any such offence, and when in the opinion of
such officer witnesses are not willing to come forward to
give evidence in public against such person by reason of,
apprehension on their part as regards the safety of their
person or property, or (c) that an outbreak of epidemic
disease is likely to result from the continued residence of
an immigrant, the said officer may, by an order in writing
duly served on him or by beat of drum or otherwise as he
thinks fit, direct such person or immigrant so to conduct
himself as shall seem necessary in order to prevent violence
and alarm or the outbreak or spread of such disease or to
remove himself outside the area within the local limits of
his jurisdiction by such route and within such time as the
said officer may prescribe and not to enter or return to the
said area from which he was directed to remove himself.
57. If a person has been convicted-
(a) of an offence under Chapter XII, XVI or XVII of the
Indian Penal Code, or
(b) twice of an offence under section 9 of the Bombay
Beggars Act, 1945, or under the Bombay Prevention of
Prostitution Act, 1923, or
(c) thrice of an offence within a period of three years
under section 4 or 12-4 of the Bombay Prevention of Gambling
Act, 1887, or under the Bombay Prohibition Act, 1949,
the Commissioner, the District Magistrate or the
Sub-Divisional Magistrate specially empowered by the State
Government in this behalf, if -be has reason to believe that
such person is likely again to engage himself in the
commission of an offence similar to that for which he was
convicted, may direct such person to remove himself outside
the area within the local limits of his jurisdiction, by
such route and within such time as the said officer may
prescribe and not to enter or return to the area from which
he was directed to remove himself.
Explanation:-For the purpose of this section "an
529
offence similar to that for which a person was convicted"
shall mean-
(i)in the case of a person convicted of an offence mentioned
in clause (a), an offence falling under any of the Chapters
of the Indian Penal Code mentioned in that clause, and
(ii) in the case of a person convicted of an offence
mentioned in clauses (b) and (c), an offence falling under
the provisions of the Acts mentioned respectively in the
said clauses".
Section 58 of the Act provides that a direction made under
sections 56 and 57 not to enter a particular area shall be
for such period as may be specified thereunder and shall in
no case exceed a period of two years from the date on which
it is made. This Court has, in Gurbachan Singh v. The State
of Bombay(1) pronounced on the constitutional validity of
section 27(1) of the City of Bombay Police Act of 1902
(Bombay Act IV of 1902) which, word for word, is almost the
same section 56 of the Act above quoted omitting (c)
thereof. As I understand that judgment, the view of the
Court as to the reasonableness of that provision is based on
the fact that under the said section it is essential for the
exercise of the power, that in the opinion of the officer
concerned, witnesses are not willing to come forward to give
evidence in public against the person concerned by reason of
apprehension on their part as regards the safety of their
own person or property. This is clear from the following
passage at page 743 of the report:
"The law is certainly an extraordinary one and has been made
only to meet those, exceptional cases where no witnesses for
fear of violence to their person or property are willing to
depose publicly against certain bad characters whose
presence in certain areas constitutes a menace to the safety
of the public residing therein".
The provisions of section 57 of the Act are totally diff-
erent. This section can be invoked without the requirement
of non-availability of witnesses or of any opinion in that
behalf being arrived at by the officer concerned.
(1) [1952] S.C.R. 737.
530
All that is sufficient for the use of this section is that
the person concerned should have been previously convicted
of certain specified offences and that the officer concerned
has reason to believe that such person is likely again to
engage himself in the commission of a similar offence. The
powers under this section can, therefore, be invoked in
every case where there is likelihood of repetition of
offence by a person who has been previously convicted of a
similar offence if the offence is of the specified
categories, even though witnesses may be willing to come
forward. I am not prepared to accept the idea that in such
a situation it would be right or reasonable to clothe
executive officers with the power to take preventive action
restraining the liberty of the citizen instead of taking the
chance of the offence being committed and leaving the
deprivation of his liberty to the ordinary channels of
criminal prosecution and punishment. It is true that in
some matters anticipatory prevention is better than ex post
facto punishment. But in a State where personal liberty is
a guaranteed fundamental right, the range of such preventive
action must be limited to a narrow compass. What may be
called the police power of the State in this behalf must be
limited by the consideration that the offence likely to be
committed is of a serious nature, that the likelihood of its
commission is very probable, if not imminent, and that the
perpetrator of the crime, if left to commit, it, may go
unpunished under the normal machinery on account of
witnesses not being willing to come forward. Section 151 of
the Criminal Procedure Code authorises a police officer to
arrest any person when he knows of his design to commit any
cognizable offence and to send him to the nearest Magistrate
for such action which he considers fit or as may be feasible
under sections 107 to 110 of the Criminal Procedure Code.
Section 57 of the Act constitutes a very wide departure from
such a provision and there must be clear justification for
so serious an encroachment on personal liberty as is
contemplated therein. A provision of the kind might not
only be justified but may be called for, if confined to
serious offences-
531
serious either because of their -nature or of the attendant
circumstances-and if witnesses are likely to be terrorised.
I am unable to see why a person who may have previously
committed any offence of a minor character and in ordinary
circumstances, under Chapters XII, XVI or XVII of the Indian
Penal Code, should not be left alone to the ordinary
channels of prosecution. It appears to me that the proper
balance between the fundamental right and social control is
not achieved by vesting the power in executive officers in
such wide terms as in section 57 of the Act. Such a
provision would lead to serious encroachment on the personal
liberty of a citizen. While, of course, abuse of power is
not to be assumed to test its reasonableness, neither is a
power given in wide terms and prima facie unreasonable, to
be considered reasonable on an assumption of its proper use.
I am also unable to see that the fact of previous commission
of any such offence without any limitation as to the period
of time that way have elapsed, or the circumstances with
reference to -which such an ,offence may have been
committed, is any relevant consideration to justify
restriction on personal liberty by way of preventive action.
I am not aware that, there is any accepted theory of
criminology which justifies the view that a person who has
committed an offence has any inherent tendency to repeat a
similar offence-apart from environment, heredity or the
like. In a trial for the commission of an offence prior
conviction is ruled out as inadmissible. On an evaluation
of the tendency to repeat a crime, I. do’ not see how it is
permissible material except in cases where repeated previous
commission of offences indicates a habit. It has been said
that the power under section 57 of the Act will be exercised
only when the officer concerned has before him not merely
the fact’ of previous conviction but other material on the
basis of which he has reason to believe that the person con-
cerned is likely to engage himself in the commission of the
offence. But this ultimately is a question of subjective
satisfaction. It is not open to review by a Court It would
be difficult to postulate how far
69
532
such a factor, as previous conviction, might have prejudiced
a fair consideration of the other material before the
officer. To my mind the law -which permits subjective
satisfaction to prevail on such material must be considered
unreasonable. In my view, therefore., though the procedural
portion of the law as provided in sections 59 and 61 of the
Act may not be open to serious criticism, the substantive
portion of the law relating to content of the power as
provided under section 57 of the Act cannot be held to be in
the nature of reasonable restriction of the fundamental
right, for three reasons.
1. Clause (a) of section 57 of the Act not being confined
to offences serious in their nature or with reference to the
attendant circumstances within the Chapters specified
therein, prevention of the repetition thereof cannot be
considered a reasonable restriction. It is in excess of
what may be considered justifiable.
2. The previous commission of an offence ,of the category
specified, without any reference to the time, environment
and other factors has no rational relation to the criterion
of "reasonableness in the interest of public".
3. The exercise of the power not being limited by the
consideration of non-availability of witnesses is also not
rationally related to the criterion of "reasonableness in
the interest of the public".
For all the above reasons I consider that section 57 of the
Act is constitutionally invalid.
ORDER.
BY THE COURT-In accordance with the Judgment of the majority
this Petition is dismissed.
Petition dismissed.
533