Skip to content


Jivraj Joharmal Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 1303 of 1955
Judge
Reported inAIR1956Bom719; 1956CriLJ1311
ActsBombay Police Act, 1951 - Sections 57; Constitution of India - Article 19(1); Indian Penal Code (IPC), 1860 - Sections 411
AppellantJivraj Joharmal
RespondentThe State
Appellant AdvocateS.M. Shah and ;N.C. Shah, Advs.
Respondent AdvocateY.V. Chandrachud, Adv. for ;Govt. Pleader
Excerpt:
.....filed against prosecution of petitioner under section 411 - petitioner convicted by additional district magistrate on basis of two previous prosecutions in respect of which no notice was given to petitioner and from which he acquitted - in such circumstances court observed that conditions necessary for application of section 57 not complied with - petition allowed and prosecution set aside. - - two of the prosecutions failed in appeal and the petitioner was acquitted. in the first place, he has relied in this order on two recent prosecutions in respect of which no notice was given to the petitioner, and he does not state the fact that both these prosecutions failed and the petitioner was acquitted. it is on record that the opponent was charge sheeted for this offence on a number.....chagla, c.j.1. this petition challenges an order made by the additional district magistrate, poona, under section 57, bombay police act. in our opinion the order is unsustainable. the order directed the externment of the petitioner who is doing business as a money lender and who is a man of substance and of property. it appears that three prosecutions were launched against him in respect of three articles seized from him.originally 2,000 articles were seized, the rest were returned, and the three prosecutions were confined to these three articles and the charge in each of these prosecutions was under section 411, i. p. c. two of the prosecutions failed in appeal and the petitioner was acquitted. the third was confirmed in appeal, although the sentence was reduced. a notice under section.....
Judgment:

Chagla, C.J.

1. This petition challenges an order made by the Additional District Magistrate, Poona, under Section 57, Bombay Police Act. In our opinion the order is unsustainable. The order directed the externment of the petitioner who is doing business as a money lender and who is a man of substance and of property. It appears that three prosecutions were launched against him in respect of three articles seized from him.

Originally 2,000 articles were seized, the rest were returned, and the three prosecutions were confined to these three articles and the charge in each of these prosecutions was under Section 411, I. P. C. Two of the prosecutions failed in appeal and the petitioner was acquitted. The third was confirmed in appeal, although the sentence was reduced. A notice under Section 59 was served upon the petitioner on 9-5-1955. He filed his written statement and then the order challenged was ultimately passed by the Additional District Magistrate, Poona.

2. The approach of the Additional District Magistrate is, in our opinion, totally erroneous. In the first place, he has relied in this order on two recent prosecutions in respect of which no notice was given to the petitioner, and he does not state the fact that both these prosecutions failed and the petitioner was acquitted.

But the Additional District Magistrate does not seem to have much respect for orders of acquittal passed by Criminal Courts in this state He seems to take the view that the only material fact which has got to be taken into consideration, is the number of prosecutions launched against a person, whatever the result of the prosecution- may be it is immaterial, the guilt of a person is to be inferred not from what the Court decides but from the fact that the Police are of the opinion that the man is guilty. This is no exaggeration because the Additional District Magistrate in terms says so. In one part of the order he says:

'The opponent has also produced copies of judgments in some other criminal cases against him for receiving stolen property in which he was acquitted, but this cannot be relied upon in view of the fact that the recent prosecution do show that the opponent is likely to commit such offences.' At another place he says:

'To establish the fact that the opponent is likely to engage himself in the commission of offences for which he was previously convicted, it is not necessary to rely on the decision of a Court of law which in fact are based on the merits Of the individual case, but what is necessary Is the mere acts themselves.'

the acts being the prosecutions launched by the police. Further on he says:

'It is on record that the opponent was charge sheeted for this offence on a number of occasions, but subsequently acquitted, which clearly shows that he is in the habit of committing such offences.'

So according to the Additional District Magistrate, the habit is proved not from convictions but from the fact that he was prosecuted, even though the prosecution might fail and result in the acquittal of the accused.

3. Mr. Chardrachud says that once it is established that there is a conviction with regard to an offence which falls under Chapter XII, XVI or XVII, the District Magistrate would be justified in passing an order under Section 57. That is a wrong reading of that section.

Undoubtedly, there has got to be a conviction as required under that section, but over and above the conviction the authority concerned must have reason to believe that the person who has been convicted is likely again to engage himself in the commission of an offence similar to that for which he was convicted. Can it be said that on the material which have been placed before us by the Additional District Magistrate, he had reason to believe that the petitioner was likely to commit a similar offence? It is perfectly true that the authority, is not bound to accept the decision of a Criminal Court.

But we would have understood the attitude of the Additional District Magistrate if he had considered the materials in possession of the police ' himself and had come to the conclusion that notwithstanding the order of acquittal passed by the Criminal Court in his opinion the petitioner was guilty. But he has not looked at the materials at all. He has merely been impressed by the number of prosecutions launched by the police and he has drawn the inference from that fact alone that the petitioner must have committed the offence in respect of which the prosecution was launched and there Fore he is likely to commit that offence again.

4. In our opinion, the conditions necessary for the application of Section 57 have not been compiled with. We should also like to point out that when a District Magistrate makes an order which takes away the liberty of a citizen, he ought to be precise in the facts that he states. In the last and concluding paragraph of his order the Additional District Magistrate says:

'Having regard to these facts I hold that it has been sufficiently proved that the 'opponent is likely to commit offences similar to those for which he was convicted.'

The record shows that the petitioner has been convicted only of one offence and the use of the plural by the Additional District Magistrate is unfortunate. This shows that what was in his mind was that the petitioner had been convicted of more than one offence. Although the conviction of more than one offence may not be necessary, even so the recital of an incorrect fact casts serious doubt upon the state of mind of the authority as to whether that mind was reasonably applied to the question before him.

5. The result is that the petition must succeed and the order of the Additional District Magistrate will be set aside.

6. Order set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //