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SUPREME COURT OF INDIA
7th May 1952.
M. M. PATANJALI SASTRI C.J.I., MAHAJAN, B.K. MUKHERJEA, S.R. DAS AND CHANDRASEKHARA AIYAR JJ.
Gurbachan Singh, Petitioner
Versus
State of Bombay and another, Respondents.
Petition No. 76 of 1952. 222
Advocates appeared
Shri H. J. Umrigar, Advocate, instructed by Shri P. K. Chatterjee, Agent, for Petitioner; Shri G. N. Joshi, Advocate, instructed by Shri P. A. Mehta, Agent, for Respondents.
1.Bunbury v. Fuller, (1854) 9 Ex. III; R. v. Income Tax Special Purposes Commissioner, (1889) 21 Q. B. D. 313 referred to.
2.The following observations of Morris L.J. in Rex v. Northumberland Compensation Appellate Tribunal, (1952) I K.B 338, 357, referred to : .
"It is plain that certiorari will not issue as the cloak of an appeal in disguise.
It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction . when shown."
Internment order fixing place outside State of Bombay fot residence -Legality.
Held: (1) The provision of S. 27(1) of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters where presence in a particular locality may jeopardize the peace and safety of the citizens. The restrictions that this law imposes upon the rights of free movement of a citizen, are reasonable and come within the purview of clause (5) of Art. 19 of the Constitution. 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 Art. 19(1) (a) of the Constitution are reasonable or not within the meaning of clame 5 of the Article would depend as much upon the procedural part of the law as upon its sub• stantive part; and the court has got to look in each case to the circumstance~ under which and the manner in which the restrictions have been imposed.
The maximum duration of the entertainment order under S. 27(1) of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the prohibited area even before the expiration of that period. Having regard to the class of cases to which this sub-section applies and the menace which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable.
So far as procedure to be followed is concerned as laid down in S 27 ~4) of the Act, it is true that the suspected person is not allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started. But this by itself would not make the procedure unreasonable having regard to the avowed intention of the legislature in making the enactment. The law is certainly an extra-ordinary 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 constitute a menace to the safety of the public residing therein. This object would be wholly defeated if a right to confront or cross-examine these witnesses was given to the suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartiality while discharging his duties under the Act.
(2) The determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Art. 19(1) (d) of the Constitution arc reasonable or not within the meaning of clause (5) of the Artic1e would depend as much upon the procedural part of the law as upon the 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.
(3) It is true that a procedure different from what is laid down under the ordinary law has been provided for a particular class of persons against whom proceedings could be taken under S. 27 (I) of the City of Bombay Police Act. But the discrimination, if any, is based upon a reasonable classification which is within the competency of the legislature to make. Having regard to the objective which the legislation has in view and the policy underlying it, a departure from the ordinary procedure can certainly be justified as the best means of giving effect to the object of the legislature. In that view, S. 27 (I) does not contravene Art. 14 of the Constitution.
Judgment
B. K. MUKHERJEA, J. : This is an application under Art. 32 of the Constitution, presented by one Gurbachan Singh, praying for a writ, in the nature of mandamus restraining the respondents as well as their subordinates and successors from enforcing an externment order, served on the petitioner under S. 27 (1) of the City of Bombay Police Act (1902).
2. The petitioner is an Indian citizen and is said to be residing with his father at a place called Gogri Niwas . Vincent Road, Dadar, his father having a business in electrical goods in the city of Bombay. On the 23rd July, 1951, the petitioner was served with an order purporting to have been made by the Commissioner of Police, Bombay, under S. 27 (1) of the City of Bombay Police Act. directing him to remove himself from Greater Bombay and go to his native place at Amritsar in East Punjab. It was mentioned in the order that the petitioner was to comply with its directions within two days from the date it was made, and that he was to proceed to Amritsar by rail. On July 25, 1951, the petitioner made an application to the Commissioner of Police and prayed for an extension of the time within which he was to remove himself from Greater Bombay, and on this application the Commissioner of Police gave him time till the 30th of July next. On 30th July, 1951. the petitioner himself wrote a letter to the Commissioner of Police stating that he did not desire to go to Amritsar and prayed that he might be allowed to stay at Kalyan which is outside Greater Bombay but within the State of Bombay and that he might be given a Railway ticket from Dadar to that place. It appears, that acting on this letter the police took the petitioner to Kalyan on the evening of 30th July, 1951. and left him there. After that, the petitioner commenced proceedings in the Bombay High Court. first in its original side under the Letters Patent and then in the Appellate Criminal Bench of the Court under Arts. 226 and 228 of the Constitution, complaining of the externment order mentioned above and praying for a writ of certiorari to have it quashed. Both these applications were dismissed and the petitioner has now come up to this Court under Art. 32 of the Constitution on the allegation that his fundamental rights under clauses (d) and (e) of Art. 19 (1) of the Constitution have been infringed by the externment order.
3. Mr. Umrigar appearing in support of the petition, has argued before us, in the first place that the order of externment is altogether void as it is not in conformity with the provisions of S. 27 (1) of the City of Bombay Police Act. His second contention is that the provisions of S. 27 (1) of the City of Bombay Police Act being in conflict with the fundamental rights enunciated in clauses (d) and (e) of Art. 19 (1) of the Constitution are void under Art 13 (1) of the Constitution. The last contention urged, though somewhat faintly, is that the provision of S. 27 (1) mentioned above is discriminatory in its character and offends against Art. 14 of the Constitution.
4. As regards the first point, it is not disputed on behalf of the respondents that the order of externment, as was passed by the Commissioner of Police on 23-7-1951, is not in strict conformity with the provision of S. 27 (1) of the City of Bombay Police Act. The order directed the petitioner to remove himself out of Greater Bombay but at the same time mentioned Amritsar as the place where he was to go. Section 27 (1) of the City of Bombay Police Act provides as follows :
"Whenever it shall appear to the Commissioner of Police.
(a) that the movements or acts of any person in the Greater Bombay are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of
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