John Beaumont, Kt., C.J.
1. This is an appeal by Government against the acquittal of the accused by the learned Presidency Magistrate, Fourth Court. The accused was charged under Section 128 of the City of Bombay Police Act with having disobeyed an externment order passed against him by the Commissioner of Police under Section 27(2A) of the Act. The accused admitted the making of the order, its service upon him, and his return to Bombay within the time prohibited by the order. But the learned Magistrate, quite rightly, refused to accept a plea of guilty, without considering the question whether the externment order passed by the Commissioner of Police was a valid order. He held that it was not a valid order and accordingly acquitted the accused.
2. Sub-section (2A) of Section 27 of the City of Bombay Police Act was added by amendment in the year 1936, and is in these terms:
(2A). It shall be further competent to the Commissioner of Police to direct any person who, not having been born in the City of Bombay or the Bombay Suburban District, has been convicted more than twice of offences punishable under Chapter XII, XVI or XVII of the Indian Penal Code, to remove himself in like manner from the City of Bombay and not to enter the said City or the Bombay Suburban District.
3. It is obvious that that section confers upon the Commissioner of Police power to interfere very drastically with the liberty of the subject. The scheme of the sub-section is that if a person not born in Bombay comes to Bombay and abuses the hospitality extended to him by his adopted city, he may be expelled, and no one, I think, could complain that a provision of that sort is unjust. If liberty is abused, it may be taken away. The test to be applied in determining whether a person has committed a breach of the hospitality of his adopted city is that he should have been convicted more than twice of certain offences, being offences in respect of coining, offences against the person, and offences against property. That is the test; and if a man has been convicted more than twice of such offences, the Commissioner of Police has a discretion, which he is not bound to exercise, to extern him.
4. Now, the previous convictions on which this externment order was based were three. First, on March 17, 1933, the externee was convicted by a Magistrate under Section 380 read with Section 109 of the Indian Penal Code, and was ordered to be detained in the Willingdon Boys' Home for two years. The sentence shows that he was at that time a child or a young person. The Magistrate in convicting stated that he was at that time between fourteen and fifteen years of age. The offence was a petty one of assisting others to steal a piece of lead piping from Beach Candy. Secondly, on January 3, 1936, the accused was convicted under Section 224 of the Indian Penal Code and ordered to be detained in the Borstal School at Dharwar for three years. But as Section 224 of the Indian Penal Code does not fall within the Chapters of the Indian Penal Code referred to in Section 27(2A) of the City of Bombay Police Act, that conviction cannot be taken into account. Thirdly, on March 23, 1939, the accused was convicted under Sub-section 457 and 380 of the Indian Penal Code and was sentenced to two months' rigorous imprisonment on each count.
5. As to the first conviction the learned Magistrate came to the conclusion that a conviction of a child was not a conviction which could be taker into account under Section 21(2A). The position as to that is this:--
6. Under the Bombay Children Act of 1924 it was the practice, when a child was found to have committed an offence, to convict that child, and at that time 'child' was defined as a person under fourteen years of age. But it is to be noticed that Section 48 provided that when a child was convicted of an offence, the fact that he had been so convicted should not have any effect under Section 75 of the Indian Penal Code or Section 565 of the Code of Criminal Procedure, which latter section would subject him to an order to report his residence to the police after his discharge from prison. It is obvious that such an order is much less serious than an externment order, but Section 27(2A) of the City of Bombay Police Act was not in force when the Bombay Children Act was passed. In 1936 the Bombay Children Act was amended, and in every case reference to a conviction of a child is omitted and the phrase is substituted 'when a child is found to have committed an offence.' So that since 1936 a child cannot be convicted, but before 1936 a child could be convicted. Under the amended Act a child is defined to mean anyone under the age of sixteen. It is impossible, I think, to suggest any sound reason why an externment order against an adult can be based on an offence committed by him as a child before 1936, but cannot be based on such an offence committed after 1936. Technically, however, I think that the Commissioner was right in treating this conviction of the child as a conviction within Section 27(2A), but I must say that to my mind it is shocking to find an order of externment from the city where he has lived for many years made against a man of twenty-two years of age, because at the age of fourteen he committed a petty theft. But that is what it comes to, because without the conviction of the child there was no power to make an externment order against the man. It seems to me that to make such an order is absolutely opposed to modern views on the subject of child criminality, which refuse to treat a child as a criminal, and is moreover in defiance of the spirit of the Bombay Children Act of 1936.
7. The other point, which arises, is this. The third conviction, as I have said, was under two sections of the Indian Penal Code, Sub-section 457 and 380, that is, house-breaking and theft in a dwelling house, both offences having arisen in the course of the same transaction. The learned Magistrate thinks that they only amount to one conviction within Section 27(2A) of the City of Bombay Police Act, and no doubt in ordinary parlance a conviction for two offences arising out of the same transaction would be regarded as a conviction for a single offence. But the exact point came before a bench of this Court in Emperor v. Ishwarlal Chhaganlal : (1941)43BOMLR511 , the judgment in which was not before the learned Magistrate. In that case the Court pointed out that, though it would be a harsh order on the part of the Commissioner to treat as two convictions under two sections of the Indian Penal Code in respect of matters arising out of the same transaction, still it was impossible to say that the convictions were not separate. Offences arising out of the same transaction can be tried together under Section 235 of the Criminal Procedure Code; but the Magistrate is not bound to try them together. He might pass separate orders in separate trials, although the offences arose out. of the same transaction. If we are to uphold the learned Magistrate's view on this point, we should have to read into Section 27(2A) after the words 'has been convicted more than twice of offences punishable under Ch. XII, XVI or XVII of the Indian Penal Code' some such words as' and not arising in the course of the same transaction.' The Court cannot add such words to the section, and to do so might involve the Commissioner in an awkward inquiry, because it is not always easy to say when offences arise in the course of the same transaction. In my view, we are not justified in saying that the convictions referred to in Section 27(2A) must be convictions arising in the course of separate transactions, or convictions passed on separate dates, but at the same time I have no doubt whatever that the Legislature did not contemplate that the practice of some Magistrates of convicting accused persons on more than one count in respect of the same transaction would involve two convictions within the meaning of Section 27(2A). The obvious intent of that section seems to be that a man is not to be externed under it unless on more than two occasions he has shown that he does not intend to live within the law.
8. If this had been an isolated case, I should not have thought it necessary to make these observations, and I should have supposed that the Commissioner had some special reason for exercising his discretion in the way he has. But this is not an isolated case. The learned Magistrate has pointed out that during the last six months at least three instances have come to his notice in which the Commissioner has made an externment order on a conviction of the accused at a time when he was a child. And there are nine other Magistrates, and most externment orders do not come before the Courts. Moreover, this is the second case in this Court within a few months in which the Commissioner has based an externment order on convictions on two counts in the same transaction. In my opinion, there is a case for inquiry by the authorities as to the principles upon which the powers of the Commissioner under Section 27(2A) are being exercised, and for consideration whether those powers should be curtailed in the sense indicated above.
9. In the result, we think the order of externment was justified, because there had been a conviction of the accused when he was a child, and he had been convicted subsequently of two offerices, although they constituted in substance only one offence. Therefore, technically he had been convicted more than twice, though substantially he had not. Having regard to the view which we take of this case, we propose to pass a nominal sentence. We allow the appeal, convict the accused under Section 128 of the City of Bombay Police Act, and sentence him to simple imprisonment until the rising of the Court.
10. I agree that on technical grounds we have no option but to allow the appeal, and I entirely associate myself with the remarks made by the learned Chief Justice as to the violation of the spirit of the Bombay Children Act which this case discloses.