# [1952] 1 S.C.R. 737

- **Citation:** [1952] 1 S.C.R. 737
- **Court:** Supreme Court of India
- **Decided:** 1951-07-25
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-737-62
- **Pages:** 8

## Headnote

•
...
--
S.C.R.
SUPREME COURT REPORTS
737
direct that they be tried for the offences alleged
to have been committed by them according to law
and in
the meantime they be retained in custody as
undertrial prisoners.
Appeals allowed.
Agent for the appellants : Naunit Lal.
Agent for the respondent: P. A. Mehta.
Agent for the intervener : Rajindcr Narain .
GURBACHAN SINGH
ti.
THE STATE OF BOMBAY AND ANOTHER
[PATANJALI SASTRI C.J., MEHER CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JI.]
City of Bombay Police Act, 1902, s. 27 (!)-Constitution of
India, Arts. 19 (1) (d), 19 (5)-Provisions relating to externment
whether infringe fundamental right to freedom of movement-Validity-Externment 01·der fixing place outside State of Bombay for
residence-Legality.
Section 27 (I) of the City of Bombay Police Act: 1902, docs
not contravene the provisions of Art. 19 of the Constitution
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 extemment 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 (!) (d) of the Constitution arc reasonable and
come within the purview of Art. 19 (5).
The determination of the question whether the restrictions
imposed by a legislative enactment upon the fundamental 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
J'Cstrictions have been imposed.
There are two kinds of externment orders contemplated by
'&Uh-section (I) of s. 27 of the City of Bombay Police Act,
1902;
one,
where
the externmant is directed from
Greater
:Bombay, and the other where the extcrncc is to remove
him.self
1952
M11y 7.
738
SUPREME COURT REPORTS
[1952]
1952
from• the State of Bombay.
In the first class of cases, the ex-
--
.
terntnent order has to specify the place ,vhere the externee is toGurbachRR Singh re111ove himself and it muSt also indicate the route by which he
v.
has to reach that place.
On the other hand, where the externThe State of
inent is fron1 the State of Bombay, the externee can remain anyBombay
where he likes outside the State and no place of residence can or
•nd Another
need be mentioned.
\Vhere an externment order made under
s.
27(1) of the
City of Bo1nbay Police Act direc-::Cd a person \Vho resided in the
City of Bo1nbay to remove himself £1 Dm
Greater Bombay and
to go to his native place at Amritsar, and on his representation
that he did not like to go to Amritsar and might be allowed
to
stay at Kalyan, v,.rhich
was outside
Greater
Bombay,
he was
per1nitted to do so: Held, that in view of the
subsequent request of the externee which was acceded to
by
the
Commis~
sioner of Police, the externment order coul<l be construed as an
order of externment fro1n Greater Bon1bay to Kalyan and it \vas.
therefore a valid order of extern1nent.
ORIGINAL JuR1so1cnoN : Petition No. 76 of 1952.
Application un<ler Art. 32 of the Constitution
of
Indb for a writ in the nature of mandamus.
H. f. U mrigar 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 mandamt<s
restraining the respondents as
well as
their subordinates an;l
successors from
enforcing an
externment
order served on the pd1tioner 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
electrical gocxls in the ci

## Text

•
...
--
S.C.R.
SUPREME COURT REPORTS
737
direct that they be tried for the offences alleged
to have been committed by them according to law
and in
the meantime they be retained in custody as
undertrial prisoners.
Appeals allowed.
Agent for the appellants : Naunit Lal.
Agent for the respondent: P. A. Mehta.
Agent for the intervener : Rajindcr Narain .
GURBACHAN SINGH
ti.
THE STATE OF BOMBAY AND ANOTHER
[PATANJALI SASTRI C.J., MEHER CHAND MAHAJAN,
MuKHERJEA, DAs and CHANDRASEKHARA A1YAR JI.]
City of Bombay Police Act, 1902, s. 27 (!)-Constitution of
India, Arts. 19 (1) (d), 19 (5)-Provisions relating to externment
whether infringe fundamental right to freedom of movement-Validity-Externment 01·der fixing place outside State of Bombay for
residence-Legality.
Section 27 (I) of the City of Bombay Police Act: 1902, docs
not contravene the provisions of Art. 19 of the Constitution
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 extemment 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 (!) (d) of the Constitution arc reasonable and
come within the purview of Art. 19 (5).
The determination of the question whether the restrictions
imposed by a legislative enactment upon the fundamental 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
J'Cstrictions have been imposed.
There are two kinds of externment orders contemplated by
'&Uh-section (I) of s. 27 of the City of Bombay Police Act,
1902;
one,
where
the externmant is directed from
Greater
:Bombay, and the other where the extcrncc is to remove
him.self
1952
M11y 7.
738
SUPREME COURT REPORTS
[1952]
1952
from• the State of Bombay.
In the first class of cases, the ex-
--
.
terntnent order has to specify the place ,vhere the externee is toGurbachRR Singh re111ove himself and it muSt also indicate the route by which he
v.
has to reach that place.
On the other hand, where the externThe State of
inent is fron1 the State of Bombay, the externee can remain anyBombay
where he likes outside the State and no place of residence can or
•nd Another
need be mentioned.
\Vhere an externment order made under
s.
27(1) of the
City of Bo1nbay Police Act direc-::Cd a person \Vho resided in the
City of Bo1nbay to remove himself £1 Dm
Greater Bombay and
to go to his native place at Amritsar, and on his representation
that he did not like to go to Amritsar and might be allowed
to
stay at Kalyan, v,.rhich
was outside
Greater
Bombay,
he was
per1nitted to do so: Held, that in view of the
subsequent request of the externee which was acceded to
by
the
Commis~
sioner of Police, the externment order coul<l be construed as an
order of externment fro1n Greater Bon1bay to Kalyan and it \vas.
therefore a valid order of extern1nent.
ORIGINAL JuR1so1cnoN : Petition No. 76 of 1952.
Application un<ler Art. 32 of the Constitution
of
Indb for a writ in the nature of mandamus.
H. f. U mrigar 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 mandamt<s
restraining the respondents as
well as
their subordinates an;l
successors from
enforcing an
externment
order served on the pd1tioner 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
electrical gocxls in the city of Bombay.
On the 23rd
July, 1951, the petitioner was serve<l with .a1~ order
purporting to have been made by the Corrim1ss1on~r 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
\
,,._.
S.C.R.
SUPREME COURT REPORTS
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 extention of the
time within which he was to remove himself from
Greater Bombay, and on this application the Commis-
,' sioner 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 withm 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 s'1de 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 externment order mentioned above and
praying for a writ of certiorari to have it quashed.
Botfl 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 externment order.
Mr. Umrigar appearing in support of the pct1t1on
:;,i
has argued before us, in the first place that the order
of externment is altogether void as it is not in confonuity with the provisions of section 27 ( 1) of the
City of Bombay Police Act.
His second contention is
f
. that the provisions of section 27 (1) of the City of
Bombav Police Act being in conflict with the funclamentai' rights enunciated in clauses ( <l) and
( e) of
.,_ J
article 19 (I) of the Constitution are void under article
13 (I) of the Constitution.
The last contention
1952
Gurbachan Singh
v.
The State of
Bombay
and A. n other
1952
Gurbachan Sin;:h
v.
The State of
Bombay
and Another
Muftherjea /.
740
SUPREME COURT REPORTS
[1952]
urged, though somewhat faintly, is
~hat the provmon
of section 27 (1) mentioned above is discriminatory in
its character and offends against art;icle
14 of the
Constitution.
.---,
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, <!anger 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 safetv of
their person or property;
(b) ... The Commissioner of Police may, by an order
jn 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 Comn:rissioner 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
'
\ _,
~·
I ,,,
S.C.R.
SUPREME COURT REPORTS
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
re:ich 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 Greater Bombay.
It was 'incumbent in such a case
for the
authorities
to specify the place where the
externce 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 Police 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 ii 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
irregularity 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,
1952
Gurhachan Sintf,
v.
The State of
Bombay
•nd Another.
/
1952
Gurbachan Singh
v.
T Ii• Stille of
Bom/fay
anti Another.
Mukheri•• f.
742
SUPREME COURT REPORTS
[19521
. ·~
the petitioner
himself by a letter written to the
Commissioner of Police sought his permission to stay
at Kalyan which is within the State of Bombay. Hio
request was acceded 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
fundamental 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
13 ( 1) of the Constitution.
There can be no doubt that the provisions of section 27 (1) of the Bombay Act was made in the interest of the general public and to protect them aga!nst
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 restrictions imposed by a legislative enactment upon the fundamental rights of a
citizen enunciated lh . article 19 ( 1) ( d) of the Conslitution are reasonable or not within the meaning of
clause (5) of the article would depend as much upon
the 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
.• -·
. ,
-
S.C.R.
SUPREME COURT REPORTS
743
which the restrictions have been imposed. The maximum duration of the externment order made under
1952
section 27 (I) of the Bombay Act is a period of two 'f:!U!S ut1tpt1qJn!)
years and
the
Commissioner of
Police
can
always
permit the externee to enter the prohi8ited area even
before the expiration of that period.
Having regard
.
,\
/o ;lttJtS "'If .L
iftJqWOfl
to the class of cases to which this sub-section applies
and Another.
and the menace which an externment order passed
•/ t1;if~1f>tnn
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 Pofice 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
explaining 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 enactment. 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 characters whose
presence in certain areas constitutes a menance to the
safety of the public residing therein.
Tnis object
would be wholly defeated if a right to
confront or
cross-examme
these
witnesses
was
given
to the
1952
Gurbttchan Sinzh
v.
The State of
Bomboy
and Another.
Muk_herjea ].
1952
May 26.
744
SUPREME COURT REPORTS
[1952]
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
impartia!'ity while discharging his duties under the
Act.
This
contention
of
Mr. Umrigar
must, therefore, fail.
The last point made by Mr. Umrigar d0es 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 sec-
'-...
tion 27(1) of the City of Bombay Police Act, but the
discrimination if any is based upon a reasonable classi- .
fication which is within the competency of the legislature to make. Having regard to the objective which
. •
the legislation has in view and the policy underlyiag 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.
_4·
Agent for the petitioner: P. K. Chatterjee.
Agent for the respondents : P. A. Mehta.
D. K. NABHIRAJIAH
v.
THE STATE OF MYSORE AND OTHERS.
[PATANJALI SASTRI C.J., MEHER CHAND MAH,AJAN,
MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.J
Mysore House Rent and Accommodation Control Order, 1948Va/idity-F,,ndamental right not to be deprived of property-Constitutiou of India, Arts. 31 (2), 19 (!) (!)-Order of allotment ~efore
Constit"tion came into for'l'e-Possession taken thereafter-Validity of proceedings-Writ for quashing orders-Maintainability.
'
A house belonging to the petitioner in the Bangalore City
-' 0 -<
l'cll vacant on the !st September, 1949,
and
on
the
13th
September, 1949, an order was passed by
the Rent Co"troller