Judgment

KRISHNA IYER, J.:- The appeal before us raises a thorny issue of some importance which may be epigramatically expressed as when has the citizen the discretion to disobey an order? When is a determination not a determination? This riddle has to be solved in the foggy legal right of conflicting decisions and academic opinions, Indian and Anglo-American. To appreciate the contention urged in the case a few facts must be narrated.

2. Section 56 of the Bombay Police Act, 1951 (the Act, for short) empowers a Police Commissioner to extern any un-desirable person on grounds set out therein and the petitioner fell victim to such a direction issued on September 5, 1967. On contravention of that order he has prosecuted under Section 142 of the Act but was acquitted by the trial Court. The State appealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is whether the externment order having been quashed by the High Court under Article 226 of the Constitution on July 16, 1968 -- during the pendency of the criminal trial - it had become void ab initio and there being thus no quit order in law ther was no offence. The learned Judge rejected this effect of the writ issued under Article 226 and convicted the accused. His reasoning, invigorated by surgical imagery flowed thus :

"Now the contravention took place on September 17, 1967 whereas the externment order in question has been quashed about one year thereafter on July 16, 1968. The question, therefore, is : can a person against whom an order of externment under Section 56 of the Bombay Police Act has been issued disobey the said order and contravene the directions contained therein with impunity if subsequently the order is quashed? If the argument of the learned counsel were to be accepted, though the externment order held the field and had not been quashed at the material time, no offence would be committed in view of the subsequent quashing of the order. In other words, though the order had not been declared invalid at the material time a contravention thereof would not constitute an offence. A distinction in my opinion has to be drawn between an order which is ab initio void and an order which is subsequently quashed on account of some technical defect or irregularity. If the order was ab initio void if it was a nullity from the inception, if it was a still born child, the matter, would have stood on a different footing. In the present case the child was alive and kicking and apparently healthy. It has subsequently died during the course of an exploratory operation. The order has been held to be invalid and is quashed on the ground that it cannot be sustained on account of some defect, infirmity or irregularity which has been subsequently discovered. It cannot be said that the order was void ab initio. The order of the High Court passed on July 16, 1968 does not render the order nullity its very inception. It is not retroactive. It does not render the order of externment "non est" What it does is to invalidate it with effect from the date of the issue of the writ quashing the said order. If the argument of the learned counsel were to be sustained it would result in an anomalous situation. The externment order can be violated with impunity if a subsequent writ petition is allowed and the order is quashed. The contravention, however, would constitute an offence if the writ petition is rejected. It is not possible to take a view which would result in such an anomalous situation. There is no principle in upholding the respondent s claim that he has a right to violate an order passed by an authority having jurisdiction to pass it, if subsequently he can persuade the court that there was an inbuilt lacuna or latent defect in the said order. In other words he claims to have the right to judge for himself whether the order is legal or not and in anticipation of the court upholding his