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PETITIONER: GURBACHAN SINGH

       Vs.

RESPONDENT: THE STATE OF BOMBAY AND ANOTHER.

DATE OF JUDGMENT: 07/05/1952

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1952 AIR  221            1952 SCR  737  CITATOR INFO :  R          1956 SC 559  (7,10,14)  E&F        1956 SC 585  (11,13,16)  RF         1961 SC 293  (11)  R          1967 SC1581  (18)  R          1973 SC 630  (10)  R          1974 SC 543  (24)

ACT:      City  of Bombay Police Act, 1902, s. 27  (1)--Constitu- tion of India, Arts. 19 (1) (d), 19 (5)--Provisions relating to externment whether infringe fundamental right to  freedom of movement--Validity--Externment order fixing place outside State of Bombay for residence--Legality.

HEADNOTE:     Section  27 (1) of the City of Bombay Police Act,  1902, does not contravene the provisions of Art. 19 of the Consti- tution  inasmuch  as it was enacted in the interest  of  the general  public and, 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;  the restrictions  that  it imposes on the fundamental  right  of free  movement of a citizen which is guaranteed by  Art.  19 (1)  (d) of the Constitution are reasonable and come  within the purview of Art. 19 (5).     The  determination of the question whether the  restric- tions imposed by a legislative enactment upon the  fundamen- tal rights of a citizen enumerated in Art. 19(1) (d) of  the Constitution  are  reasonable or not within the  meaning  of clause (5) of the article depends as much on the  procedural part of the law as upon its substantial 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.     There are two kinds of externment orders contemplated by sub-section (1) of s. 27 of the  City of Bombay Police  Act, 1902;  one,  where  the externment is directed from  Greater Bombay,  and  the other where   the externee  is  to  remove himself

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738 from the State of Bombay.  In the first class of cases,  the externment order has to specify the place where the externee is to remove himself and it must also indicate the route  by which he has to reach that place.  On the other hand,  where the externment is from the State of Bombay, the externee can remain  anywhere he likes outside the State and no place  of residence can or need be mentioned.      Where  an externment order made under s. 27 (1) of  the City  of Bombay Police Act directed a person who resided  in the City of Bombay to remove himself from Greater Bombay and to go to his native place at Amritsar, and on his  represen- tation  that he did not like to go to Amritsar and might  be allowed to stay at Kalyan, which was outside Greater Bombay, he was permitted to do so: Held, that in view of the  subse- quent  request of the externee which was acceded to  by  the Commissioner  of Police, the externment order could be  con- strued  as  an order of externment from  Greater  Bombay  to Kalyan and it was therefore a valid order of externment.

JUDGMENT: ORIGINAL  JURIDICTIN: Petition No. 76 of 1952.      Application under-Art. 32 of the Constitution of India for a writ in the nature of mandamus. H.J. Umrigar for the petitioner. G.N. Joshi for the respondent.     1952.  May 7. The Judgment of the Court was delivered by      MUKHERJEA  J.--This is an application under article  32 of  the  Constitution, presented by  one  Gurubachan  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 section 27(1) of the City of Bombay Police Act (1902).     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  elec- trical 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 section  27 (1) of the City of Bombay Police Act,  directing him  to  remove himself from Greater Bombay and  go  to  his native place at 739 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  Slate  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 articles 226 and 228 of the Constitution, complaining of the

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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 article 32 of the Constitution on the allegation  that his fundamental rights under clauses (d) and (e) of  article 19(1) of the Constitution have been infringed by the extern- ment order.     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 section 27(1)of the City  of  Bombay Police Act.  His second contention is that the provisions of section  27(1)  of the City of Bombay Police  Act  being  in conflict  with the fundamental rights enunciated in  clauses (d)  and (e) of article 19(1) of the Constitution  are  void under  article 13(1) of the Constitution.  The last  conten- tion 740 urged,  though somewhat faintly, is. that the  provision  of section  27(1)  mentioned  above is  discriminatory  in  its character  and offends against article 14 of  the  Constitu- tion.    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 section 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 any such offence, and when in the opinion of the  Commissioner 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;     (b)...The  Commissioner  of Police may, by an  order  in writing duly served on him...direct such person...to  remove himself outside the State or to such place within the  State and  by such route and within such time as the  Commissioner of  Police shall prescribe and not to enter the State or  as the case may be the Greater Bombay."      It  seems clear from this provision that there are  two kinds  of externment orders contemplated by the  subsection; one,  where externment is directed from the  Greater  Bombay and  the other where the externee is to remove himself  from the State of Bombay.  In the 741 first  class  of cases the order has got   to   specify  the place where the externee is to remove himself to and it must also  indicate  the  route by which he  has  to  reach  that place.’  On the other hand, when the externment is from  the State  of Bombay, the externee can remain anywhere he  likes outside  the State and no place of residence can or need  be mentioned.      In  the case before us the externment order started  by directing  the  petitioner  to remove himself  only  out  of

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Greater  Bombay.   It was incumbent in such a case  for  the authorities to specify the place where the externee  was  to stay.   Actually a place, namely Amritsar, was specified  in the  order, but as it is not within the State of Bombay,  it was  manifestly beyond the jurisdiction of the  Commissioner of Po1ice to name such place at all.  It is argued on behalf of the petitioner, not without some force, that the omission to specify a place within the State where the petitioner was to  stay  vitiates the order.  On the other hand  the  order read  as  a whole might indicate that the intention  of  the Commissioner of Police was to extern the petitioner  outside the State of Bombay and this is apparent from the fact  that he was directed to proceed to Amritsar which is situated  in another State.  It is no doubt true that the Commissioner of Police,  Bombay, had no authority to fix any  place  outside the State as the place of residence of the externee and that direction was ineffective; but that direction certainly  has a bearing on the question of the construction of the  order, for it indicates that the real intention of the order was to direct the externee to remove himself not only from  Greater Bombay but from the State of Bombay itself.  If that was the intention, no place of residence need have been indicated at all. We need not, however, labour this aspect of the  matter any further, for we are of the opinion that whatever irregu- larity  there  might have been in the  original  order,  the subsequent  conduct of the petitioner which had the sanction and  approval  of  the Commissioner of  Police  removed  the defect,   if  any. As has been stated already, on  the  30th July, 1951, 742 the  petitioner himself by a letter written to  the  Commis- sioner  of  Police sought his permission to stay  at  Kalyan which is within the State of Bombay.  His request was acced- ed  to  and the Police actually took him to  Kalyan  on  the evening of the 30th.  We think that, in these circumstances, the order made on the 23rd July, 1951, might be construed to be  an  order of externment from Greater Bombay  and  though there  was a mistake regarding the place where the  externee was  to remove himself to, the mistake was rectified by  the petitioner  choosing  Kalyan as the place of  residence  and that choice being accepted and given effect to by the Police Department.   We  do not think that in  these  circumstances there  is really any substance in the first point raised  by Mr. Umrigar.      The  second point urged by the learned  counsel  raises the  question  as to whether section 27 (1) of the  City  of Bombay  Police Act has imposed restrictions upon the  funda- mental right of a citizen which is guaranteed under  article 19  (1) (d) of the Constitution and being in  conflict  with this fundamental right is void and inoperative under article 18  (1) of the Constitution. There can be no doubt that  the provision  of section 27 (1) of the Bombay Act was  made  in the  interest  of  the general public and  to  protect  them against  dangerous  and bad characters whose presence  in  a particular  locality may jeopardize the peace and safety  of the  citizens.   The  question, therefore,  is  whether  the restrictions  that this law imposes upon the rights of  free movement of a citizen, come within the purview of clause (5) of article 19 of the Constitution; or in other words whether the restrictions are reasonable ? It  is perfectly true that the determination of the question as to whether the restric- tions imposed by a legislative enactment upon the  fundamen- tal  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  the

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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 743 which the restrictions have been imposed. The maximum  dura- tion  of the externment order made under section 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  pro- hibited  area  even before the expiration  of  that  period. Having  regard to the class of cases to which this  sub-sec- tion  applies  and t. he menace which  an  externment  order passed under it is intended to avert, it is difficult to say that  this provision is unreasonable.  The  Commissioner  of Police can in a proper case cancel the externment order  any moment  he  likes,  if, in his opinion, the  return  of  the externee to the area from which he was removed ceases to  be attended  with any danger to the community.  As regards  the procedure  to be followed in such cases, section 27  (4)  of the  Act  lays down that before an order  of  externment  is passed against any person, the Commissioner of Police or any officer  authorized  by  him shall inform  such  person,  in writing,  of the general nature of the material  allegations against  him  and give him a reasonable opportunity  of  ex- plaining  these  allegations.  He  is  permitted  to  appear through  an Advocate, or an Attorney and can file a  written statement and examine witnesses for the purpose of  clearing his character.  The only point which Mr. Umrigar attempts to make  in regard to the reasonableness of this  procedure  is that  the suspected person is not allowed  to  cross-examine the witnesses who deposed against him and on whose  evidence the proceedings were started.  In our opinion this by itself would  not make the procedure unreasonable having regard  to the avowed intention of the legislature in making the enact- ment.   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  charac- ters whose presence in certain areas constitutes 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 744 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.  This  contention  of Mr. Umrigar must, therefore, fail.     The last point made by Mr Umrigar does not seem to us to be tenable.  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 section 27 (1) of the City of Bombay  Police Act, but the discrimination if any is based upon a  reasona- ble  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 our opinion, therefore, there is  no substance in the petition and it shall stand dismissed.                                Petition dismissed. Agent  for  the petitioner: P.K. Chatterjee. Agent for the respondents: P.A. Mehta.

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