TMI Blog1956 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... bay. 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 on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24th February 1955 as the prosecution witnesses were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagpada Ps C. R. No. 127/38 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 dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the Act extends to the whole of the State of Bombay. The provisions of section 57 can be applied either by the Commissioner 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 certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1950] S.C.R. 519 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 of State of Madras v. V. G. Row (1952] S.C.R. 597, 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 Advisor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted 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 [1952] S. C.R, 597, 609, externment of individuals, like preventive detention, is largely precautionary and based on suspicion . To these observations may be added the following words in the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very difficult for him to avail of at least the second ground 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions 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. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [1952] S.C.R. 737 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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-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 give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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