# [1956] 1 S.C.R. 506

- **Citation:** [1956] 1 S.C.R. 506
- **Court:** Supreme Court of India
- **Decided:** 1956
- **Bench:** S. R. Das C.J, Jagannadhadas, Venkatarama -~ Ayyar, B. P. Sinha, Jafer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1956-1-s-c-r-506-1242
- **Pages:** 27

## Headnote

Bombay Police Act, 1961 (Bombay Act XXII of 1961), s. 67Constitutional validity-Restrictions on individual right to reside in
and move freely in any part of India-Reasonableness-Order of
externment-Grounds of the order-Validity-Sufficiency of · evi·
dence on which the order i• made-Whether can be examined by th•
Court-Constitution of India, Art. 19(1)( d), (e) and ( 6).
Section 57 of the Bombay Police Act, 1951 provides that if a
person has been convicted of certain offences detailed therein, "the
Commissioner, the District Magistrate or the Sub·Pivisional
Magistrate specially empowered by the State Government in this be·
half, if he has re.ason to believe that such person is likely again to
engage 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 limits 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".
Under tb.e provis.ions of the said section an order. of externment
was passed against the petitioner who challenged the order on the
grounds thats. 57 contravened clauses (d) and (e) of Article 19(1) of
the Constitution, that the provisions of the said section imposed un ·
rea.sona.ble restrictions on the petitiOner's fundamental rights of free
movement and residence and that the order pa88ed against him was
illej;al inasmuch as it was based on vague allegations and inad·
mlssible material.
Held, per S. R. DAS C.J., VENKATABAMA AYYAR, B. P. SINHA
.and JAFEB IMAM JJ. (JAGANNADHADAS J. dissenting)
(1) Section 57 of the Bombay Police Act, 1951 is not uncon·
stitutional, because, it is an instance of the State ta.king preventive
measures in the interests of the public and for safeguarding· individual rights, by preventing a person who has been proved to be a
criminal from acting in a way which me.y be a repetition of his
criminal propensities, and the restrictions that it imposes on the.
individual's right to reside iil and move freely in any part of India
are reasonable within the meaning of clause (5) of Art. 19 of the
Constitution.
(2) The restrictions cannot be said to be unreasonable on the
ground that the person dealt with under s. 57 of the Act may be
-
...
S.C.R.
SUPREME COURT REPORTS
507
directed to remove himself altogether outside the limits of the
State of Bombay as the Act extends to the whole of the State,
because, unless the. person makes himself so obnoxious as to render
his presence in every part of the State a menace to public peace
and safety, every District authority would not think of acting in
the same way in respect of the same person.
(3) It cannot be laid down as a universal rule that unless
there is a provision for an Advisory Board which could scnrtinise
the material on which the officers or authority contemplated by
s. 57 had taken action against a person, such a legislation would
be unconstitutional.
(4) The provisions in ss. 55, 56, 57 and 59 of the Act are
not invalid on the ground that only the general nature of the
material allegations against the person externed are required to
be disclosed and that it would be difficult for him to get the mat·
ter judicially examined. The provisions are 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.
(5) The legality of the order of externment cannot be im·
pugned on the ground that there was not sufficient evidence to
bring the charge home to the petitioner, because these are all
matters which cannot be examined by this Court in an objective
way, when the legislature ha.s provided for the subjective sa.tis·
faction of the authorities or officers who have been entrusted with
the duty of enforcing the special provisions of the Act.
<Jurbachan Singh v. The Stats of Bomba11 ([1952) S.C.R. 787),
followed.
Pl!1' JA

## Text

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1956
506
SUPREME COURT REPORTS
H4RI KHEMU GAWALI
v.
(1956]
THE DEPUTY COMMISSIONER OF POLICE,
BOMBAY AND ANOTHER.
[S. R. DAS C.J., JAGANNADHADAS, VENKATARAMA
-~
AYYAR, B. P. SINHA and JAFER IMAM JJ.]
Bombay Police Act, 1961 (Bombay Act XXII of 1961), s. 67Constitutional validity-Restrictions on individual right to reside in
and move freely in any part of India-Reasonableness-Order of
externment-Grounds of the order-Validity-Sufficiency of · evi·
dence on which the order i• made-Whether can be examined by th•
Court-Constitution of India, Art. 19(1)( d), (e) and ( 6).
Section 57 of the Bombay Police Act, 1951 provides that if a
person has been convicted of certain offences detailed therein, "the
Commissioner, the District Magistrate or the Sub·Pivisional
Magistrate specially empowered by the State Government in this be·
half, if he has re.ason to believe that such person is likely again to
engage 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 limits 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".
Under tb.e provis.ions of the said section an order. of externment
was passed against the petitioner who challenged the order on the
grounds thats. 57 contravened clauses (d) and (e) of Article 19(1) of
the Constitution, that the provisions of the said section imposed un ·
rea.sona.ble restrictions on the petitiOner's fundamental rights of free
movement and residence and that the order pa88ed against him was
illej;al inasmuch as it was based on vague allegations and inad·
mlssible material.
Held, per S. R. DAS C.J., VENKATABAMA AYYAR, B. P. SINHA
.and JAFEB IMAM JJ. (JAGANNADHADAS J. dissenting)
(1) Section 57 of the Bombay Police Act, 1951 is not uncon·
stitutional, because, it is an instance of the State ta.king preventive
measures in the interests of the public and for safeguarding· individual rights, by preventing a person who has been proved to be a
criminal from acting in a way which me.y be a repetition of his
criminal propensities, and the restrictions that it imposes on the.
individual's right to reside iil and move freely in any part of India
are reasonable within the meaning of clause (5) of Art. 19 of the
Constitution.
(2) The restrictions cannot be said to be unreasonable on the
ground that the person dealt with under s. 57 of the Act may be
-
...
S.C.R.
SUPREME COURT REPORTS
507
directed to remove himself altogether outside the limits of the
State of Bombay as the Act extends to the whole of the State,
because, unless the. person makes himself so obnoxious as to render
his presence in every part of the State a menace to public peace
and safety, every District authority would not think of acting in
the same way in respect of the same person.
(3) It cannot be laid down as a universal rule that unless
there is a provision for an Advisory Board which could scnrtinise
the material on which the officers or authority contemplated by
s. 57 had taken action against a person, such a legislation would
be unconstitutional.
(4) The provisions in ss. 55, 56, 57 and 59 of the Act are
not invalid on the ground that only the general nature of the
material allegations against the person externed are required to
be disclosed and that it would be difficult for him to get the mat·
ter judicially examined. The provisions are 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.
(5) The legality of the order of externment cannot be im·
pugned on the ground that there was not sufficient evidence to
bring the charge home to the petitioner, because these are all
matters which cannot be examined by this Court in an objective
way, when the legislature ha.s provided for the subjective sa.tis·
faction of the authorities or officers who have been entrusted with
the duty of enforcing the special provisions of the Act.
<Jurbachan Singh v. The Stats of Bomba11 ([1952) S.C.R. 787),
followed.
Pl!1' JAGANNADHADAS J:-Secti-0n 57 of the Act is constitu·
tionally invalid because:
(1) Clause (a) of s. 57 of the Act not being confined to offences
serious in their n\i.ture or with reference to the attendant circum·
stances within the Chapters specified therein, prevention of the re·
petition thereof cannot be considered 11 reasonable restriction. It is
in excess of what ma.y be considered justifiable.
·
(2) The previous commission of an offence of the category speci·
fied, without any reference to the time, environment and other
factors has no rational relation to the criterion of "reasonableness
in the interest of public".
·
(3) The exl1rcise of the power not being limited by the conside·
ration of non-availability of witnesses is also not rationally related
to the criterion of "reasonableness in the interest of the public".
Gurbachan Singh v. The State of Bombay ([1952) S.C.R. 787),
distinguished.
ORIGINAL JURISDICTION: Petition No. 272of1955.
66
1956
Har'iKhemu
Gawali
v.
The Deputy
Commissio11er of
Police, Bombay
and another
1956
Hari Khemu
Gawali
v.
The Deputy
Commissicnur o/
Police, &mbay
and another
508
SUPREME COURT REPORTS
[1956]
Petition under Article 32 of the Constitution of
India for the enforcement of Fundamental Rights.
Purshottam Trikamdas, V.R. Upadhya,J.IJ. Dadachanji and 8. N. Andley, for the petitioner.
M. 0. Setalvad, Attorney-General for India, B. Sen
and·R. H. Dhebar, for the respondents.
1956. May 8.
The Judgment of S. R. Das C.J.
and Venkatarama Ayyar, B. P. Sinha and Jafer
ImamJJ. was delivered by SinhaJ. JagannadhadasJ.
delivered a separate judgment.
SINHA J.-This petition under article 32 of the
Constitution challenges the vires of certain provisions
of the Bombay Police Act, XXII of 1951, which hereinaner will be referred to as "The Act", with particular reference to section 57 under which the externment order dated the 8th November 1954 was passed
against the petitioner by the first respondent, the
Deputy Commissioner of Police, Crime Branch (1),
C.I.D., Greater Bombay.
The second respondent is
the State of Bombay. The petitioner, who claims to
be a citizen of India, was born in Bombay and had
been, before the order of externment in question,
residing in one of the quarters of the City of Bombay. He keeps bullock carts for carrying on his business of transport and cows for selling milk.
The
petitioner alleges that the Prohibition Police of the
City instituted twelve prohibition cases against hiiμ
which all ended either in his discharge or acquittal.
An "externment order" was passed against him in
August 1950.
That order was set aside by the Government in December 1950, on appeal by the petitioner. In December 1953 an order of detention was
passed against him under the Preventive Detention
Act, 1950, and he was detained in the Thana District
prison. He moved the High Court of Bombay under
article 226 of the Constitution against the said order
of detention. He was released from detention before
the said petition was actually heard by the High
Court.
Thereafter, the petitioner along with others
was charged with possession of liquor. TheJ]ase went
·-
S.C.R.
SUPREME COURT REPORTS
509
on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24th .
February 1955 as the prosecution witnesses were not
present on the date fixed for hearing of the case. On
the night of the 9th October 1954 the petitioner was
arrested along with his companions a little after midnight by members of the· police force designated
"Ghost Squad", which was a special wing of the
Crime Branch of the C.I.D., on the allegation made
by the police that they were seen running away on
the sight of a police v&n and that they were chased
and arrested and were found in possession of knives
and other weapons.
In October 1954 the petitioner
was served with a notice under section 57 read with
section 59 of the Act. It is convenient at this stage
to set out the said notice in extenso, which is Exhibit
A to the petition filed in this Court:-
"
Notice under section 59 of the Bombay Police
Act, 1951.
Name, address & age: Hari alias Dada Khemu Gawali,
Hindu, aged about 37 years.
Occupation: Bullock cart owner.
Residence: Room No. 45, 1st floor, Haji Kassam
Chawl, Lamington Road.
Under section 59 of the Bombay Police Act, 1951
(Bombay Act XXII of 1951), you are hereby informed
-
that the following allegations are made against you
in proceedings against you under section 57 of the
said Act.
In order to give you opportunity of tendering
your explanation regarding the said allegations, I
have appointed 11 a.m. on 25-10-1954 to receive your
explanation and to hear you and your witnesses, if
any, in regard to the said allegations.
I, N. P.
Paranjapye, Superintendent, C.B.I., C.I.D., therefore
require you to appear before me at H.P. 0. Annexe
I (place) on the said date viz. 25-10-1954 at 11 a..m.
for the said purpose and to pass a bond in the sum of
Rs. 500 with one surety in like amount for your
attendance during the inquiry of the said proceedings.
Should you fail to appear before me and to pass the
1956
HariKhemu
Gawali
v.
The Deputy
Commissioner of
Polke, Bombay
antl another
Sinha/.
IP56
Hari Khemu
Gawali
v.
Th• Dej>uty
Commissione,. .of
Police, Bombay
and another
Sinha}.
510
SUPREME COURT REPORTS
[1956]
bond as directed above, I shall proceed with the inquiry in your absence. Take note:
Allegations:- ,
1. That you have been convicted of offences as
per particulars mentioned below:~
-···--------·------------
Serial
Court &
Date of
No,
Dietriot
Conviction
Section
of law
Sentence
Police
Station &
case No.
1.
H. C. 14-10-1938 304/109 6 yrs. Nagpada PS
Bombay
I. P. C. R.I.
C.R. No.
324/109 2 yrs.
127 /38
I, P. C. R.I. (Concurrently).
2. That you were arrested on 29-3-1948 in connection with Nagpada P.S.C.R. No. 273 of 1948 u/s
143, 147, 148, 149, 353, I.P.C. wherein you along with
one Ramchandra lshwarbhai and others committed
rioting and criminal assault on a public servant, viz.
a police constable No. 4459/D to deter him from the
execution of his lawful duties but you were discharged
in the said case due to lack of sufficient evidence.
3. That you were again arrested on 2-5-1948 in
connection with Nagpada P.S.C.R. No. 353 u/s 143,
144, 146, 147, 148, 149, 324, I.P.C. wherein you along
with one Rajaram Khemu Gawli and 7 others committed rioting armed with deadly weapons, viz.,
lathis, soda water bottles etc. and caused hurt to one
Gopal Khemu Gaw Ii but you were discharged in the
said case for want of sufficient evidence.
4. That you were again arrested on 3-6-1949 in
connection with Nagpada P.S.C.R. No. 336 of 1949 u/s
143, 147, 149, 225, 225-B, 332, I.P.O. wherein you
along with one Shri Vithal Baloo and others committed rioting, assaulted a public servant, viz. a
police officer .(Shri S. K. Kothare) to deter him from
the lawful discharge of his duties and made 3 persons
in the lawful custody of the police to escape, but were
discharged in the said case for want of sufficient
evidence.
5. That now you have been arrested on 9-10-1954
at about 12-50 a.m. in the company of 7 others, viZ.
-
S.C.R.
SUPREME COURT REPORTS
511
(1) Amir Masud (2) Francis Sherao@ China (3) Antoo
Narayan (4) Abdul Wahab Abdul Gafoor (5) Laxman
Rama (6) Narayan Tukaramand (7) Rajaram Vishnoo
out of whom persons mentioned at Nos. 1 and 6 are
previous convicts and that at the time of arrest you
and persons mentioned at Nos. 1, 2, 3 and 4 were
armed with deadly weapons to wit, clasp knives, iron
bar and a lathi, and thus you were reasonably suspected to be out to commit an offence either against
property or person; And that you are likely again to
engage yourself in the commission of a similar offence
falling either under Chapter XVI or XVII of the
Indian Penal Code.
Sd. N. P. Paranjapye
Superintendent of Police, Crime
Branch (1), C.I.D.
L.T.I. of Hari@ Dada Khemu Gawli.
"
The petitioner appeared before the Superintendent
on the 8th November 1954 with his counsel and filed
a long petition containing allegations running into
16 paragraphs showing cause against the order of
externment proposed to be passed against him. That
petition is Ex. B. The petitioner accepted the correctness of the allegation contained in the first paragraph
of Ex. A set out above, but denied the truth of the
other allegations made therein 1>gainst him which he
characterised as based on "old prejudice and suspicion". As regards his conviction referred to in the
first paragraph aforesaid, he stated:-
"! had unfortunately a conviction in 1938 when
I was a mere youth. I have lived a clean and honourable life ever since."
Then he goes on to make reference to the other cases
charged against him and claimed that he had been
"discharged in those cases for want of sufficient evidence"
The first respondent aforesaid ultimately passed
the order of externment which is Exhibit C .to the
petition, on the 8th November 1954. After reciting
the previous conviction which was for offences under
Chapter XVI, Indian Penal Code and that the petitioner was likely again to engage in the commission
1956
Hart Khemt1
Gau•a/i
v.
Th~ Deputy
Commissioner. of
Police, Bombay
and another
Sinha J.
1956
Hari Khemu
Gawali
v.
The D<puly
Com11iissioner of
Police, B01nbay
aud another
Sinha J.
512
SUPREME COURT REPORTS
(1956]
of similar offences and saying that he was satisfied
about the matters contained in the previous notice,
the first respondent directed the petitioner under section 57 of the Act to remove himself outside the
limits of Greater Bombay within two days from the
date of the final order in the case pending against
him, as noted in the order, for a period of two years
from the pate of the order, and not to enter or return
to the said area of Greater Bombay without the
permission in writing of the Commissioner of Police,
Greater Bombay, or the Government of Bombay. The
petitioner preferred an appeal to the Government of
Bombay against the said order of externment. But
the appeal was dismissed. Substantially on those
allegations this Court has been moved under article
32 of the Constitution.
The first respondent has sworn to the affidavit filed
in this Court to the effect that the petitioner has been
fully heard by the authorities before the order impugned in this case was passed. It is further stated
in the affidavit that in the previous case in which
the petitioner had been convicted he had been found
guilty along with his brother Rajaram of having
caused the death of a person who had given evidence
against them in a previous trial. The first respondent
further stated in the affidavit that the material ex~
mined by him before passing the order impugned
showed that since 1948 the petitioner had been resorting to violence and was concerned in a number of
cases involving acts of violence, namely:-
1. In March 1948 a police constable was assaulted.
Though the petitioner was one of the persons concerned with the crime, he was not charge-sheeted because sufficient evidence was not forthcoming against
him.
2. In April 1948 the petitioner's brother had
charged him and eight others with having thrown
sodawater bottles and used Ia.this. The Presidency
Magistrate, 17th Court, Mazgaon, Bombay, had to
adjourn the case several times for recording evidence
of witnesses who remained absent and ultimately the
court refused to grant further adjournment for the
S.C.R.
SUPREME COURT REPORTS
513
production of witnesses and the case ended in a discharge for want of evidence.
3. In May 1949 the police had arrested three persons including Rajaram aforesaid, the petitioner's
brother for being concerned in sale of illicit liquor.
While those arrested persons were being taken to the
police lorry for being taken to the police station, the
petitioner and other persons forcibly rescued those
arrested persons from the custody of the police. But
the case ultimately failed in August 1950 because the
witnesses failed to turn up to give evidence against
the accused including the petitioner.
4.
At about 12-50 a.m. on 9th October 1954, the
Special Squad, Crime Branch, C.I.D., Bombay, while
proceeding on their rounds noticed the petitioner and
seven others armed with an iron bar and lathi. On
seeing the police van, they started running away and
were chased and arrested by the police force.
On
arrest the petitioner and his other associates were
found carrying "clasp knives". The petitioner and
three of the seven arrested persons were found smelling of alcohol.
The petitioner was placed on his
trial for offences under the Bombay Prohibition Act
and the Bombay Police Act. He was acquitted by
the learned trial Judge because of discrepancies in the
evidence of some of the prosecution witnesses. The
respondent further averred that after examining all
the material against him in the light of his previous
conviction under sections 304/109 and 324/109, Indian
Penal Code, he was satisfied that the petitio.ner was
likely again to engage in the commission of offences
similar t.o those for which he had been previously
convicted, Accordingly he passed the order of externment against the petitioner, a'S set out above.
In support of the petition which was heard along
with Petitions Nos. 439 and 440of1955 (in which the
orders impugned had been passed under section 56
of the Act and which are being disposed of by a eeparate judgment) the leading argument by Shri Purshotham raised the contentions,-(1) that section
57 of the Act contravened clauses (d) and (e) of article 19(1) of the Constitution and that the provisions
1956
Hari Khcmu
Gawali
v.
The Dejmty
Commissi01ier of
Police, Bombay
attd another
Sinha],
1956
Hari Kheniu
Gawali
v.
Conunissior.er of
Police, Bonibay
and another
Sinha}.
514
SUPREME COURT REPORTS
[1956]
of that section imposed unreasonable restrictions on
the pe.titioner's fundamental rights of free movement
and residence; and (2) that the order passed under
section 57 against the petitioner is illegal inasmuch
as it is based on vague allegations and inadmissible
material, for example, on orders of discharge or acquittal. Each of the two broad grounds has been
elaborated and several points have been sought to be
made under each one of those heads. It has been contended that the police have been vested with unlimited powers in the sense that any person whom they
suspect or against whom they have their own reasons
to proceed can be asked to remove, not only from any
particular area, like Greater Bombay, but from the
entire State of Bombay. Even if one order does not
ask a person to remove himself out of the entire State,
each authority within its respective local jurisdiction
can ask a particular person to go out of that area, so
that that person may find himself wholly displaced
without any place to go to. Unlike the law relating
to preventive detention, there is no provision for
an Advisory Board which could examine the reasonableness of the order proposed to be passed or already
passed, so that there is no check on the exercise of
power by the police authorities under the Act, however flagrant the abuse of the power may have been.
It is also contended that the . provisions as regards
hearing by the police authorities and appeal to the
State Government are illusory. The police is both the
prosecutor and the judge and the remedy provided by
the Act is a mere eye-wash. It is also pointed out
that all kinds of offences have been clubbed together
which have no rational connection with one another.
Reliance was placed on certain observations made by
this Court in a number of decisions, viz., Chintaman
Rao v. The State of Madhya Pradesh('); The State of
Madras v. V. G. Row(•); Thakur Raghubir Singh v.
Court of Wards, Ajmer('); Messrs Dwarka Prasad
Laxmi Narain v. State of U.P.('); and Ebrahim Vazir
Mavat v. State of Bombay(•).
(1) [1950] S.C.R. 759.
(2] [1952] S.C.R. 597.
(3) [1953] 8.C.R. 1049.
141 [1954] S.C R. 803.
(5) [195<1] S.C.R. 933.
S.C.R.
SUPREME COURT REPORTS
515
Section 57 of the Act which is particularly impugned in this case is in these terms:-
"Removal of persons convicted of certain offences.
If a person has been convicted-
( a) of an offence under Chapter 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 Commiss\oner, the District Magistrate or the
Sub-Divisional Magistrate specially empowered by the
State Government in this behalf, if he has reason to
believe that such person is likely again to engage 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
limits 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 this 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 convicted of an
offence mentioned in clauses (b) and (c), an offence
falling under the provisions of the Acts mentioned
respectively in the said clauses".
In order to attract the provisions of this section, two
essential conditions must be fulfilled, viz., (1) that
there should have been a previous conviction under
Chapter XII, XVI or XVII, Indian Penal Code, or
two previous convictions under the Acts mentioned
67
1956.
Hari Khemu
Gawali
v.
The Deputy
Co11m1 i ss iofler of
Polil:e, Bo;ubiry
a11d a11othcr
Sinha J.
7956
Hari l{hemu
Ga·wali
v.
;'lie Deputy
Co~n11tissioncr of
Police, Bo1nbay
and auother
Sinha].
516
SUPREME COURT REPORTS
(1956]
in clause (b), or three previous convictions within a
period of three years under the Acts mentioned in
clause (c); and (2) that the authority named should
have reason to believe that a person coming within
the purview of any of the clauses (a), (b) and (c) is
likely again to engage himself in the commission of
an offence similar to that for which be bad been previously convicted; that is to say, for an offence falling under any of the three chapters mentioned in
clause (a), or if be bad been twice convicted under
the Beggars Act, or the Prevention of Prostitution
Act, or thrice convicted under the Prevention of
Gambling Act or the Prohibition Act; so that, a previous conviction for "offences relating to coin and
Government stamps" bas been equated with one for
"offences affecting the human body" (chapter XVI)
or "offences against property" (chapter XVII) of the
Indian· Penal Code. Chapter XII contains sections
230 to 263(A). Chapter XVI contains section 299 to
section 377 and Chapter XVII contains section 378
to section 462 of the Code. In other words, one convicted for counterfeiting coin may in terms of the
impugned section 57 be said to have engaged himself
in the commission of a similar offence if be is likely
to use criminal force or to commit theft or extortion
or robbery or dacoity or criminal misappropriation of
property or criminal breach of trust. It bas therefore been rightly pointed out on behalf of the petitioner that the range of the offences referred to in
clause (a) of section 57 is very wide indeed and that
it is difficult to point out any rational basis for clubbing them together.
A person convicted under
Chapter XII, Indian Penal Code of counterfeiting
Indian Coin or Government stamps may rightly be
called the enemy of public finance and revenue, but
is far removed from a person who may be convicted
of murder or other offences against human body or
against private property. But the legislature in its
wisdom bas clubbed all those offences togther and it
is not for this Court to question that wisdom provided
the provisions of the Act do not impose unreasonable restrictions on right to freedom.
Conviction
S.C.R.
SUPREME COURT REPORTS
517
under the Bombay Beggars Act and the Bombay Prevention of Prostitution Act have been clubbed together under ciause (b) and similarly previous convictions under the Bombay Prevention of Garn bling
Act and Bombay Prohibition Act have been clubbed
together. So the previous convictions under the three
clauses aforesaid have been placed in three different
categories.
Article 19 of the Constitution has guaranteed the
several rights enumerated under that article to all
citizens of India. After laying down the different
rights to freedom in clause (1), clauses (2) to (6) of
that article recognise the right 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(1) 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
the 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. Theimpugned section 57 is an instance of the State taking
preventive measures in the interest of the public and
for safeguarding individual's 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 bis criminal propensities. In doing so
the State may have to curb an individual's activities
and put fetters on his complete freedom of movement
and residence in order that the greatest good of the
greatest number may be conserved. The law is based
on the principle that it is desirable in the larger
1956
Hari Khemu
Gawali
v.
The Deputy
Commissio1ic•r of
Police, Bombay
and another
Sinha].
1956
HariKhemu
Gawali
v.
The Deputy
Co1n1nf$sioner of
Police, Bonibay
and another
SinhaJ.
518
SUPREME COURT REPORTS
(1956]
interests of society that the freedom of movement and
residence of a comparatively fewer number of people
should be restrained so that the m11jority of the community may move and live in peace and harmony
and carry on their peaceful avocations untrammelled
by any fear or threat of violence to their person or
property: The individual's 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 sound principle cannot be gainsaid. Now the only question is whether the provisions of the impugned section are not justified in the
larger interest of the community, or, in other words,
whether they impose a larger restriction than is reasonably necessary to meet the situation envisaged
by the section. From that point of view we shall now
examine the other arguments advanced to show that
the provisions of the impugned section are unreasonable restrictions on individual right to reside in and
move freely in any part of India.
It bas been observed by this Court in the case of
Gurbachan Singh v. The State of Bombay(') at p. 742,
as per Mukherjea, J. (as he then was):-
"lt 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 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 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
which the restrictions have been imposed".
In this case the attack against section 57 of the Act
is directed both against the procedural part of the
law and the substantive part. It has been contended
that the person dealt with under section 57 may be
directed to remove himself altogether outside the
limits of the State of Bombay because the Act extends
to the whole of the State of Bombay. The provisions
of section 57 can be applied either by the Commis-
(1) [1952] S.C.R. 737.
S.C.R.
SUPREME COURT REPORTS
519
sioner of Police for Greater Bombay and other areas
for which a. Commissioner may be appointed under
section 7 or by the District Magistrate or a Sub-Divisional Magistrate specially empowered by the State
Government in that behalf. Any one of the aforesaid
authorities has power to direct an individual dealt
with under section 57 to remove himself outside the
area within the local limits of his jurisdiction. Hence
none of those authorities has the power to direct that
person to remove himself outside the entire State of
Bombay. The situation envisaged by the argument
that a person may be called upon to remove himself
out of the limits of the entire State of Bombay would
not ordinarily arise because the idea underlying the
provisions of sections 55 to 57 is the "dispersal of
gangs and removal of persons convicted of certain
offences" as would appear from the sub-heading II in
chapter V, which is headed "special measures for
maintenance of public order and safety of State". A
gang of criminals or potential criminals operates or
may intend to operate within certain local limits and
the idea behind the provisions of section 57 is to see
to it that a person with previous conviction who may
have banded together with other such persons should
be disbanded and hounded out of the limits of his
ordinary activities, his associates also are to be similarly dealt with, so that the gang is broken up and
the different persons constituting it may be removed
to different parts of the State so as to reduce their
criminal activities to the minimum. Unless a person
makes himself so obnoxious as to render his presence
in every part of the Born bay State a menace to public
interest including public peace and safety, every Commissioner of Police or District Magistrate or SubDivisional Magistrate would not think of acting in
the same way in respect of the same person. Hence,
in our opinion, there is no substance in this argument.
It may be mentioned in this connection that previous
to the enactment of the impugned Act there was the
Bombay District Police Act IV of 1890 which applied
to the whole Presidency of Bombay except the Greater
Bombay (omitting all references to Sind) and the City
1956
Hari Khem11
Gawali
v.
The DejJuty
Commissioner of
Police, Bombay
and another
Sinha J.
1956
Hari Khemu
Gawali
v.
The Deputy
Conunissioner of
F'olice, Bo1nbay
anti atiother
SinhaJ.
520
SUPREME COURT REPORTS
[1956]
of Bombay Police Act, IV of 1902, applied to the City
of Bombay except certain specified sections which
applied to the whole of the Presidency of Bombay; so
that the two Acts aforesaid covered the whole of the
State of Bombay as it was constituted after Independence. The two Acts aforesaid were repealed by the
impugned Act which consolidated the law for the
regulation of the Police Force in the State of
Bombay which appears from the following preamble
of the Act:-
"Whereas it is expedient to amalgamate the District and Greater Bombay Police ForcP!I in the State
of Bombay into one common Police Force and to introduce uniform methods regarding the working and
control of the said Force throughout the State".
Broadly speaking, section 46 of Act IV of 1890 and
section 27 of Act IV of 1902 correspond to the provisions of sections 56 and 57 of the Act.
It was next contended that unlike Preventive Detention laws there was no provision in the impugned
law for an Advisory Board which could scrutinise the
material on which the officers or authorities contemplated by section 57 had taken action against a person. 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 provision in article 19 would answer this contention. In this connection reference may also be
made to the decision of this Court in the case of N. B.
Khare v. State of Delhi(') which dealt with the constitutionality of the East Punjab Public Safety Act
of 1949 with reference to the provisions of article 19
of the Constitution. In that legislation there was a
provision for an Advisory Board whose opinion, however, had no binding force.
The Act was not struck
down by this Court. On the other hand, in the case
(1) [1950) S.C.R. 519.
I
..
S.C.R.
SUPREME COURT REPORTS
521
of State of Madras v. V. G. Row(1), section 15(2)(b) of
the Indian Criminal Law (Amendment) Act, 1908, as
amended by the Indian Criminal Law Amendment
(Madras) Act, 1950, was held to be unconstitutional
as the restrictions imposed on the fundamental right
to form associations were not held to be reasonable
in spite of the fact that there was a provision for an
Advisory Board whose opinion was binding on the
Government. Hence it cannot be said that the existence of an Advisory Board is a sine qua non of the
constitutionality of a legislation such as the one before us.
It was next contended that the proceedings are
initiated by the police and it is the police which is the
judge in the case and that therefore the provisions
of the Act militate against one of the accepted principles of natural justice that the prosecutor should not
also be the judge. In order to appreciate this argument reference has to be made to the provisions of
section 59 of the A9_t. It provides that before action
is taken under sections 55, 56 or 57 of the Act, the
authority entrusted with the duty of passing orders
under any one of those sections or any offi.cer above
the rank of an Inspector authorised by that officer or
authority shall inform the person proceeded against
in writing "of the general nature of the material
allegations against him" in order to give him a reasonable opportunity of explaining his conduct. If
that person wishes to examine any witnesses, he has
to be given an opportunity of adducing evidence.
That person has the right to file a written statement
and to appear in the proceeding by an advocate or
attorney for the purpose of tendering his explanation
and adducing evidence. If the person fails to appear
or to adduce evidence, the authority or officer has the
right to proceed with the enquiry and to pass such
order as may appear fit and proper. It is thus clear
that the criticism against the procedure laid down
in section 59 is not entirely correct. The evidence
or material on the basis of which a person may be
proceeded against under any one of the sections 55,
(1) [1952] S.C.R. 597.
1956
HariKhemu
Gawali
v.
The Deputy
Commissioner of
Police, Bombay
""" another
Sinha/,
195~
Hari Khemu
Gawali
v.
The Deputy
Co1n11ii ssioner of
Police, Bonibay
and another
Sinha}.
522
SUPREME COURT REPORTS
[1956]
56 or 1'!7 may have been collected by police officers of
the rank of an Inspector of Police or of ~ower rank.
The proceedings may be initiated by a police officer
above the rank of Inspector who has to inform the
person proceeded against of 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 Government 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. The
person proceeded against is not prosecuted but is put
out of the harm's way. The legislature has advisedly
entrusted officers of comparatively higher rank in the
police or in the magistracy with the responsible duty
of examining the material and of being satisfied that
such person is likely again to engage himself in the
commission of an offence similar to that for which
he had previously been convicted. The proceedings
contemplated by the impugned section 57 or for the
matter of that, the other two sections 55 or 56 are
not prosecutions for offences or judicial proceedings,
though the officer or authority charged with the duty
aforesaid 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.
As observed by Patanjali Sastri, C. J. in the case of
State of Madraa v. V. G. Row('), "externment of individuals, like preventive detention, is largely precautionary and based on suspicion". To these observations may be added the following words in the
judgment of Patanjali Sastri, C. J., (supra) with
reference to the observations of Lord Finlay in Rex
v. Halliday('):-
"The court was the least appropriate tribunal to
investigate into circumstances of suspicion on which
such anticipatory action must be largely based".
(1) [1952] S C.R. 597, 609.
(2) [1917] A.O. 260, 269.
S.C.R.
SUPREME COURT REPORTS
523
It is thus clear that in order to take preventive action
under section 57 of the Act the legislature has entrusted police officers or magistrates of the higher
ranks to examine the facts and circumstances of each
case brought before them by the Criminal Investigation Department. But the legislature has provided
certain safeguards against tyrannical or wholly unfounded orders being passed by the higher ranks of
the police or the magistracy.
It was next contended that the provisions relating
to hearing any evidence that may be adduced by the
police or by the person proceeded against and right
of appeal to the State Government conferred by
section 60 of the Act are illusory. We cannot agree
that the right of appeal to the State Government
granted to the person proceeded against by an order
under section 57 is illusory because 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, will discharge its
functions with due care and caution. Section 61 has
provided a further safeguard to a person dealt with
under section 57 by providing that though an order
pas13ed under section 55, section 56 or section 57, or
by the State Government under section 60 on appeal
shall not be called in question in any court, he may
challenge such an order in a court on the ground (1)
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. In this connection it was
argued on behalf of the petitioner that section 59
.