1956 Supreme(SC) 41

SUPREME COURT OF INDIA
8th May 1956.
S.R. DAS, C.J.I., JAGANNADHA DAS, VENKATARAMA AYYAR, SINHA AND SYED JAFER IMAM, JJ.
Hari Khemu Gawali, Petitioner
Versus
Deputy Commissioner of Police, Bombay and another, Respondent.
Petition No. 272 of 1955.
Advocates Appeared
Mr. Purushottam Trikamdas, Senior Advocate, (Mr. V. R. Upadhya, Mr. J. B. Dadachanji and Mr. S. N. Andley, Advocates with him) for Petitioner; Mr. M. C. Setalvad, Attorney-General for India, Mr. B. Sen, Senior Advocate, (Mr. R. H. Dhebar, Advocate with them) for Respondents.

Headnote:Bombay Police Act, 1951 (Bombay Act XXII of 1951), Section 57-Validity-Articles 19 (J) (d) and (5) of the Constitution-Reasonable restriction on individual right to reside in and move freely in any part of India.

       Order of externment-Sufficiency of evidence on which the order is made-Court cannot examine it.

       Grounds of the order- Validity.

       An order of externment was passed against the petitioner under S. 57 of the Bombay Police Act, 1951.2 The order was challenged by him on the ground that S. 57 of the Act contravened clauses (d) a~d (e) of Article 19(1) of the Constitution, inasmuch as the prov1sions of the said section imposed unreasonable restrictions on the petitioners 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.

       Held: (Per S. R. Das C. J., Venkatarama Ayyar, B. P. Sinha and Jafer Iman JJ.; Jagannadhadas J., dissenting) : (I) Article 19 of the Constitution has guaranteed the several rights enumerated under that article to all citizens of I ndia. After laying down the different rights to freedom in clause (1), clauses (2) to (6) of that article recognize the right

       1. The King v. The General Commissioners of Income-tax for Southampton, Exparte, W.M. SinlZer, (1916)2 K.B. 249, 259; Mukerjee, Official Receiver v. Ramratan Kuer, (1935) L.R. 63 I.A. 47 referred to.

       2.S. 57 of the Bombay Police Act, 1951 reads:

       "57. Removal of persons convicted of certain offences. If a person has been convicted.

       (a) of an offence under Chaptcr 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 SubDivisional Magistrate specially empowered by the State Government in this behalf. ifhe has reason to believe that mch person is likely again to enage 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 limit 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 thi~ section an 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 convir.ted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said (;!ause§." 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 (I) 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 t~e 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.

       (2) The impugned section 57 is an instance of the State taking preventive measures in the interest of the public and for safeguarding individuals 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 individuals activities and put fetters on his complete freedom of movement and. residence in order that the greatest good of the greatest numbr.r may be conserved, The law is based on the principle that it is desirable in the Jarger interests of the society that the freedom of movement and residence of comparatively fewer number of people should be restrained so that the majority of the community may move and live in peace and harmony and carryon their peaceful avocations untrammelled by any fear or threat of violence to their person or property. The individuals 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 the sound principle cannot be gainsaid.

       (3) The restrictions that section 57 of the Bombay Police Act, 1951, imposes on the individuals right to reside in and move freely in any part of India are reasonable within the meaning of clause (5) of Article 19 of Constitution, The argument that the person dealt with under section 57 may be directed to remove himself altogether out side the limits of the State of Bombay because the Act extends to the whole of the State of Bombay, cannot prevail, as 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.

       (4) It cannot be said that the existence of an Advisory Board is a sine qua non of the constitutionality of a legislation such as impugned S. 57 of the BomblY Police Act, 1951. 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 provi~io!1 i~ artij::le 19 woulq ~nswer t4is

       (:ontention, " (5) The proceedings contemplated by the impugned section 57 or for the matter of that, theother two sections 55 or 56 are not prosecutions for offences or judicial proceedings, though the officer or authority charged with the duty of externment 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. The proceedings may be initiated by a police officer abovo the rank of Inspector who has to inform the person proceeded against 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 Covernment 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, and the argument that sections 55, 56, 57 and 59 of the Act militate against one of the accepted principles of natural justice that the prosecutor should not also be the judge cannot prevail.

       (6) The right of appeal to the State Government granted under section 60 of the Act to the person proceeded against by an order under section 57 is not illusory. 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, wiII discharge its functions with due care and caution. Section 61 of the Act provides a further safeguard 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 should not be called in question in any court, he may challenge such an order in a court on the ground (I) 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 not of opinion that witnesses were unwilling to come forward to give evidence in public against the person proceeded against. The contention 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 on which section, 61 permits him to get the matter judicially examined cannot hold good. In the very nature of things it would 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 aforesaid on the basis that the person dealt with under any of 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. These provisions 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.

       J.Gurbachan SinGh v. Th(; State of Bom~ay (1952) S. C. R. 737 : A. !. R. 1952 S. C.

       :m fQllowed. ,.,., . (7) It has been urged against the legality of the order impugned 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 tempered 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 disc~arge or acquittal cannot be taken into account by those authorities when dealing with persons under anyone of the provi~ions under examination in this case.

       Per Jagganadhadas J. (dissenting) :

       Section 57 of the Act is invalid constitutionally for the foIlowing reasons :

       (I) 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 critetion 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."