1. This is a petition under Article 226 (1) of the Constitution for the enforcement of the fundamental rights conferred by the Constitution under Article 19 (1).
2. It is common ground that the petitioner went to Karachi in June 1948 and returned to India on 14-11-1948 on a temporary permit valid for two months. Thereafter he applied to the Deputy Commissioner, Nagpur, for the issue of a certificate of permanent residence in India. No such certificate was given to him, and the petitioner was asked to leave India by 20.1-1919. It may be mentioned that the petitioner has his home in Nagpur where the members of his family live, However, in pursuance of the order served on him by the Deputy Commissioner, Nagpur, he left this place on 19-1-1949 for Bombay. From there he went to Karachi by sea and landed there on 30-1-1949. He then went by air from Karachi to Dacca on 3-2-1949. He left Dacca immediately after reaching there and entered the Indian Union. He eventually returned to Nagpur, but the exact date of the his return is not on record. On 25-9-1949 the petitioner was challaned under Clause 5 (1), Influx from Pakistan (Control) Ordinance, 1948, read with R, 12, Permit System Rules. The case against him was tried summarily and he was convicted and sentenced to a fine of Rs. 50. The petitioner did not challenge the conviction and sentence passed on him and paid the fine. Despite the conviction of the petitioner he continued to stay in Nagpur, and it was not till 27-12-1949 that he was arrested for the purpose of being removed out of India under Section 7, Influx from Pakistan (Control) Act, 1949, which was passed on 22-4-1949, which superseded the Ordinance under which the petitioner was convicted. At present he is in detention in the Central Jail, Nagpur. His deportation from India has been stayed by this Court in view of the petition made on his behalf in December last for the issue of a writ in the nature of habeas corpus under S 491, Criminal P.C. After the petition was argued, it was withdrawn and the present petition was made, presumably on the ground that Article 226 confers on this Court wider powers than Section 491, Criminal P.C.
3. Section 7 of the Act reads as follows:
Without prejudice to the provisions contained in Section 5; the Central Government may, by general or special order, direct the removal from India of any person who has committed, or against whom a reasonable suspicion exists that he has committed, an offence under this Act, and thereupon any Officer of Government shall have all reasonable powers necessary to enforce such direction.
It is argued on behalf of the State Government that as the petitioner was convicted under Clause 5 (1) of the Ordinance, or, alternatively, as he has committed or against whom a reasonable suspicion exists that he has committed an offence under the Ordinance he is liable to be removed under Section 7 of the Act. Bearing in mind the provisions of Section 9 (2) of the Act we are clear that a conviction under the Ordinance would render the provisions of Section 7 of the Act applicable in the same manner as a conviction under the Act or the commission of an offence under the Act. The question, therefore, is whether the conviction of the petitioner under Clause 5 (1) of the Ordinance or, alternatively, the fact that he returned to India, after having gone to Karachi, via East Pakistan amounts to an offence under the Ordinance.
4. In so far as the conviction of the petitioner under Clause 5 (1) of the Ordinance is concerned it is pointed out by Shri Shareef, who appears for the petitioner, that it is wholly void under Section 53o(q), Criminal P.C. because though the offence is punishable with the imprisonment for one year the case against the petitioner was tried by summary procedure. In support of his contention ,the learned Counsel relies on a decision in Queen-Empress v. Husein Caibu, 8 Bom. 807. In that case a person was tried of an offence without jurisdiction and acquitted, and the question was whether he could be retried in respect of the same offence without having the acquittal set aside. The Court held that the trial was wholly void under B. 530, Criminal P.C. and that it was not necessary for the High Court to upset the acquittal before a retrial could be had. This decision was considered in Rakhu Sarif- v, Panchanan Mandal. : AIR1937Cal256 , and was disapproved. In that case it was held following the decision in Emperor v. Yena 6 Or. L.J. 287 : 4 L. B. R. 49 that an order which is void for want of jurisdiction must nevertheless be regarded as valid unless it is set aside by a Court of competent jurisdiction. In the latter case it was observed as follows:
From a comparison of the language of Section 530 with that of Section 529, Criminal P.C., we think it may be inferred that the Legislature did not intend that a proceeding of a duly constituted Criminal Court, which is void for want of jurisdiction, should be treated as a nullity and disregarded, unless and until it is set aside by a Court of competent jurisdiction.
With great respect to the learned Judges of the Bombay High Court, we think that the reason given by the Burma Court is indeed very weighty and that we would not be justified in ignoring the fact of the petitioner's conviction, even though, prima facie, the offence was not triable by summary procedure. The proper course for the petitioner would have been to move this Court in its criminal revisional jurisdiction to have his conviction quashed. But he has not taken that course even up till now. At the moment.we are exercising our jurisdiction under a special provision in the Constitution, and it is not open to us while doing so to act or purport to act under the Criminal P.C. and quash the conviction here and now. On the other hand, we are bound to accept the fact of conviction as conclusive, whether or not any offence was actually committed by the petitioner and whether the trial held was or was not regular,
5. Then it is contended that the Ordinance itself was ultra vires of the powers of the Governor-General. The power of the Governor General to frame an Ordinance is contained in Section 42 of the now defunct Government of India Act, 1935, as amended by the India (Provisional Constitution) Order, 1947. In that section the Governor-General was empowered in certain circumstances to make an Ordinance, which would be valid for not more than six months, having the same force as a law passed by the Dominion Legislature and subject to the same restrictions as the power of the Dominion Legislature to make laws. It is contended that under B. 100 of the Act the Dominion Legislature was empowered to legislate only on matters contained in the Federal Legislative List and the Concurrent Legislative List. It is further pointed out that item 17 in the Federal Legislative List enabled the Dominion Legislature to legislate on questions relating to the admission into and migration or expulsion from India of persons who are not British subjects domiciled in India. Therefore, it is contended that the Ordinance of 1948 in so far as it permitted the regulation of entry into India of British subjects domiciled in India is ultra vires of the powers of the Dominion Legislature and consequently of the Governor-General.
6. This argument wholly ignores Section 6, Indian Independence Act. Sub-section (1) of that section clearly provides that the Legislature of each of the two Dominions of India and Pakistan shall have full power to make laws for the Dominion concerned including laws having extra-territorial operation, Sub-section (2) lays down that no law and no provision of any law made by the Legislature of either of the two Dominions shall be void or inoperative on the ground that it is repugnant to the law of England or to the provisions of the Indian Independence Act or of any existing or future Act of Parliament etc That section further provides that no law passed by the Legislature could be disallowed by His Majesty or reserved for the signification of His Majesty's pleasure. Finally, it makes dear that no law of Parliament of the United Kingdom passed on or after the appointed date shall extend or be deemed to extend to either of the Dominions. It is therefore abundantly clear that from the moment the Indian Independence Act came into force all the residuary powers enjoyed by the Parliament of the United Kingdom in relation to India were exercisable by the Dominion Legislature. Consequently, then, the Dominion Legislature had on the date on which the Ordinance was passed power to pass a law having the same effect as the Ordinance. In view of the emergency the Governor-General had, under Section 42, Government of India Act, an identical power to promulgate an Ordinance. For these reasons we repel the contention of the petitioner that the Ordinance was ultra vires. Farther, for the same reasons we repel the argument of the learned Counsel to the effect that the provisions of Section 7, Influx from Pakistan (Control) Act, 1949, are ultra vires of the powers of the Legislature in so far as persons of Indian domicile are concerned.
7. In the view we take, it is clear that the petitioner is liable to be deported from the Indian Union. No doubt, Article 19 (1) of the Constitution confers a right of freedom of movement on a citizen of India, but that right is subject to Clause (5) of Article 19. Under that clause the rights conferred by Sub-clauses (d), (e) and (f) of Clause (1) of Article 19 will be subject to the operation of any existing law in so far as it imposes reasonable-restrictions on the exercise of any of the rights conferred by the said Sub-clauses in the interests of the general public. The introduction of the permit system amounts to imposition of restrictions on the exercise of the rights conferred by Sub-clause (d) of Article 19 (1). This restriction was imposed in the interests of the general public consequent on the partition of the country. On the face of it, they are reasonable restrictions, and therefore the Ordinance which has now been replaced by the Act cannot be regarded as inconsistent with Article 19 (1).
8. In this view we are dear that no infringement of the fundamental right of the petitioner has taken place. Consequently we must uphold his detention and withdraw the order passed by this Court staying deportation.
9. It will be open to the State Government now to deal with the petitioner in any manner authorized by law. The State Government wilt no doubt, however, take cognizance of the fact that the present order is based on a pure technicality so far as the petitioner's conviction is concerned. He was convicted in a trial which Section 530, Criminal P.C., renders void and, additionally, he should not have been convicted because it was open to him at the relevant time to come into India from Eastern Pakistan.