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Anant Reddy Vs. State of Hyderabad Through Commr. of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1954CriLJ1499
AppellantAnant Reddy
RespondentState of Hyderabad Through Commr. of Police
Excerpt:
.....be final, is well established by the decision of the supreme court in the case of -parry & co. the police commissioner in this case is not expected to have a regular protracted enquiry, but is expected to take immediate action on information furnished if he is satisfied that such action as is envisaged in section 26 of the police act is necessary. they said that such a procedure could be tolerated in view of the fact that the law itself was an extraordinary one to meet exceptional cases. 7. the next argument of the learned advocate was that a reading of section 26, sub-section (6) of the police act would show that a period had to be fixed during which the externment order was to be operative and it was urged that in the order in question there was no specific period fixed as to how long..........under article 226 of the constitution of india praying that the order of the commissioner of city police dated 4-3-1954 directing the petitioner to remove himself to trimulgherry be quashed. notice was issued to the respondent and a counter has been filed. the allegation of the petitioner is that he has been in hyderabad from his childhood and that he is the president of the qutubiguda labour co-operative society and that he has been constructing the houses of labourers under a scheme based on co-operative basis.the petitioner further averred that the petitioner's rivals wanted to run down the petitioner's business and therefore made a false report against him moving the magistrate to take proceedings under section 107, cr. p. c., and that such proceedings were taken and after.....
Judgment:

Srinivasachari, J.

1. This application is by one Anant Reddy invoking our jurisdiction under Article 226 of the Constitution of India praying that the order of the Commissioner of City Police dated 4-3-1954 directing the petitioner to remove himself to Trimulgherry be quashed. Notice was issued to the respondent and a counter has been filed. The allegation of the petitioner is that he has been in Hyderabad from his childhood and that he is the President of the Qutubiguda Labour Co-operative Society and that he has been constructing the houses of labourers under a scheme based on co-operative basis.

The petitioner further averred that the petitioner's rivals wanted to run down the petitioner's business and therefore made a false report against him moving the Magistrate to take proceedings under Section 107, Cr. P. C., and that such proceedings were taken and after investigation the petitioner was discharged. Subsequently, the Commissioner of Police served a notice upon him to leave Division No. 3 and to go and stay at Trimulgherry. This order of the Commissioner of Police is attacked by the petitioner on various grounds.

2. We heard the arguments of the learned advocates for the petitioner and the Advocate-General on behalf of the respondent. This order of the Commissioner of Police purports to have been made under Section 26 of the City Police Act. The contentions raised by the learned advocate for the petitioner are that by reason of this order of externment of the Commissioner of City Police, the fundamental rights conferred on him under the Constitution under Article 19(1)(d) and (e) have been infringed, that the order in question is mala fide, that the Hyderabad City Police Act itself is ultra vires the Constitution as it offends Article 14 of the Constitution.

Along with the application for the issue of a Writ of Certiorari the petitioner filed an application for the stay of the order of the Commissioner pending disposal of the writ petition. The stay petition came on for hearing and on the date of the hearing we were informed that the petitioner had already removed himself to Trimulgherry and inasmuch as the order had been carried out we stated that there was no necessity to pass any order on the stay petition and directed that the writ application itself be posted for arguments.

3. It would be advisable to dispose of two minor arguments advanced by the learned advocate for the petitioner. His first argument was that there are two enactments in the Hyderabad State namely, the Hyderabad City Police Act and the District Police Act and that the existence of two different enactments for the two areas created a discrimination between the people of the City and those in the Districts. On the face of it this argument is absolutely fallacious.

It would appear that Police Acts have, in other parts of India, also been enacted separately for the Districts and the City, for example, in Bombay before the Bombay Police Act (Act 22 of 1951) there were two Acts one with regard to the City and the other with regard to the Districts. Both have now been amalgamated and codified into one Act. There is no discrimination whatsoever. Each enactment is intended for a particular area. The two enactments are in pari materia.

4. Another subsidiary argument that was advanced by the learned advocate was that under Section 26(10) an order of the City Commissioner of Police could not be questioned in a court of law and this provision should be declared invalid. In so far as this argument is concerned, we would observe that this provision merely bars the matter being agitated in a court. Under no circumstance could the jurisdiction of the High Court under Article 226 be said to have been ousted or taken away.

The insertion of the word 'final' in a statute does not take away the right of the superior court to bring the proceedings before it by certiorari. That the right to issue writs of certiorari is not lost by reason of the fact that there has been expressed in a statute that the order of a particular authority shall be final, is well established by the decision of the Supreme Court in the case of - Parry & Co. v. Commercial Employees Association : (1952)ILLJ769SC .

5. After disposing of these subsidiary arguments of the learned advocates of the petitioner we would now deal with the more substantial arguments in the case. One of the contentions raised was that it was against the principles of natural justice not to be told what the case was against the petitioner. It was urged that the names of the complainants who reported to the Police Commissioner about the objectionable character of the petitioner had not been disclosed to the petitioner, and this, it was argued, violated the elementary principles of natural justice. The question has to be looked at from the point of view as to whether it was within the competence of the Commissioner to withhold the names. In this connection it would be desirable to refer textile relevant provision in the City Police Act in this regard. Section 26, Sub-section (11) is to the following effect :

Nothing contained in this section shall require any Police Officer to disclose to the person against whom an order is made under Sub-sections (1), (2) and (3) or to a Court the source of his information or any fact the expression of which in the opinion of the Commissioner of Police, reveals the name or identity of the person giving information.

A comparison of these provisions with the provisions in similar enactments in the Bombay State would show that the provisions in the Bombay Act also are exactly similar, for example, in Section 46(c), Bombay District Police Act of 1890, it is stated that nothing contained in Section 46(a) or Section 46(b) shall require the Magistrate or any Officer to disclose the person against whom an order is made under Sub-sections (1), (3) or (4) of Section 46...or (b) to the Court, the source of his information or any communication which in the opinion of the Magistrate or Officer would lead to the disclosure of the identity of any person or property. Exactly similar are the words of Sub-section (8) of Section 27, City of Bombay Police Act, 1902,

It has to be noted that the action taken under the provisions of Section 26 of the Police Act being one in the nature of an emergency measure and being primarily in the nature of an action of a preventive nature, it has been regarded as a matter of policy and expediency to make a departure from the ordinary procedure such as furnishing to the suspect the source of information, the names of the informants and giving to the suspect an opportunity to cross-examine the informants on their statement. The Police Commissioner in this case is not expected to have a regular protracted enquiry, but is expected to take immediate action on information furnished if he is satisfied that such action as is envisaged in Section 26 of the Police Act is necessary.

This very question came up for discussion before the Supreme Court in the case of - Guru-bachan Singh v. State of Bombay reported in : 1952CriLJ1147 . In that case it was argued that the suspected person was not allowed to cross-examine the witnesses who deposed against him and on whose evidence the proceedings were started and that therefore the procedure was unreasonable and could not be allowed. Their Lordships while repelling this objection observed :

that this procedure by itself would not make it unreasonable having regard to the avowed intention of the legislature in making the enactment.

They said that such a procedure could be tolerated in view of the fact that the law itself was an extraordinary one to meet exceptional cases. Therefore, the objection that the names of the informants were not disclosed or that the petitioner has not had an opportunity of cross-examining those persons is of no avail.

6. It was sought to be made out that the provision in the enactment making the person stay at a particular place amounted to placing an unreasonable restriction upon the movements of the person and as such it violated Article 19(1)(d) and (6) of the Constitution. The question arises as to whether such a restriction could be regarded as a reasonable restriction within the meaning of Article 19(5) of the Constitution. It has to be observed that having regard to the type of cases that this order is intended to meet, this provision of making a person reside in a particular place cannot be regarded as unreasonable.

It would appear that in this case the intention of the Commissioner of City Police was to see that the petitioner who according to him was a menace to the public of the locality where he resided should be removed from that area to prevent a breach of the peace and he directed the petitioner to remove himself from the locality and go and reside at some place and in this case he mentioned the place as Trimulgherry.

The fact that in this order the Commissioner assigned a particular place for the residence of the petitioner would not in our opinion invalidate the order. The order in effect is only an orderi calling upon the petitioner to remove himself from Division No. 3 of the City Police Area. Therefore, the mention of the place to which he should go in the order would not vitiate the order.

7. The next argument of the learned advocate was that a reading of Section 26, Sub-section (6) of the Police Act would show that a period had to be fixed during which the externment order was to be operative and it was urged that in the order in question there was no specific period fixed as to how long the externee was to keep himself out of the limits of the forbidden area and as such the order was bad in law. This argument again is met by the same answer, namely, that having regard to the exceptional nature of the enactment it is not possible in the nature of things to predicate as to how long the restriction would have to be imposed upon the externee, for that would depend upon the circumstances existing then.

The order of externment is necessitated by certain special circumstances existing then and it would not be possible at that stage to fathom as to how long those circumstances would last, and as such the mentioning of the period sometimes is not practical or possible. The fact that a period is not fixed would not in our opinion make the order invalid in law. We may say here that in order to meet a particular contingency this order is passed and the Commissioner has always the power to revoke the order the moment the contingency or the emergency is over.

We are supported in this view of ours by the decisions of the Bombay High Court in the case of - Abdul Rahman Shamshuddin v. Emperor : AIR1950Bom374 . We may also refer to the provisions of Section 77, Hyderabad City Police Act in this connection, which throws some light upon this question. According to Section 77 of the Act a person against whom an order has been passed under Section 26 of the City Police Act and has been externed if he entered the City limits without the written permission of the Commissioner within a period of two years, would be liable to be imprisoned.

This provision would show that the law imposes a penalty in the event of the externee coming into the prohibited area within two years. It would thus be clear that if he came into the area after the expiry of two years no action would be taken against him. We must say that Section 77 of the City Police Act has not been happily worded but it purports to convey the same meaning as is conveyed by the corresponding provisions in the City of Bombay Police Act arid the Bombay District Police Act.

8. Another argument advanced by the learned Counsel was that proceedings had been launched against the petitioner under Section 107, Criminal P. C., on a previous occasion and that he was discharged. A certified copy of the order of the City Magistrate discharging the accused in proceedings taken under Section 107, Criminal P. C., has been filed. On the basis of this it was urged that when the Court had come to the conclusion that it was no longer necessary to bind the petitioner over for good behaviour and when this order was passed on 22-10-1953, a notice issued by the Commissioner of Police, on 8-12-1953, as to why action should not be taken' under the Police Act could not be regarded as being a bona fide act.

It was also urged that under the circumstances it could riot be said that there was any material before the City Commissioner to come to the conclusion that it was dangerous to allow the petitioner to remain in Division No. 3 of the City Police Area. We perused the order of the City Magistrate of 22-10-1953, closing the proceedings under Section 107, Criminal P. C., and we find that the Magistrate closed the proceedings on the following grounds :

The proceedings started in November 1951 and the petitioner was asked to keep peace for six months and therefore on the date when he passed this order, namely, 22-10-1953 nearly two years had passed since the law was set in motion. The Magistrate therefore thought that there was no justification for conducting the proceedings any longer where the object was merely to call upon the petitioner to keep peace for a period of six months and these six months had expired long ago. This order in our opinion cannot help the petitioner,

9. It was also urged that the Police Commissioner should have resorted to the general procedure contemplated by Sections 107 and 110, Criminal P. C. We must straightaway point out that such an argument could be advanced in every case falling under the Police Act and the fact that the Commissioner acted under Section 26 of the Police Act would then have to be declared to be mala fide simply because he did not take proceedings under the provisions of Sections 107 and 110, Criminal P. C. The procedure under the Police Act and under Sections 107 and 110, Criminal P. C., are entirely different and the purpose of the one is entirely different from the other.

Action under Section 26 of the City Police Act is a more drastic measure and is resorted to where there is a danger to public life, or property and where there is the suspicion that the person suspected is likely to engage in the commission of an offence or to abet such offence. The point of distinction between Section 107, Criminal P. C. and Section 2(5 of the Police Act is that in a case where the informants are not willing to give evidence in public for fear of danger to their lives, the Police Commissioner is empowered to take proceedings under Section 26, while in the case of Section 107, Criminal P. C., it contemplates an inquiry by the recording of evidence of the person who gave the information.

10. The order in question was attacked as being mala fide. It is not sufficient merely to allege that the order passed was not in good faith or bona fide. Facts have to be alleged sufficiently to convince the Court that although ex facie the order appears to have been properly made, it is made for an ulterior purpose. Sweeping assertions in the affidavit would not be enough. I would refer to the case of - Green v. Secretary of State for Home Affairs 1942 AC 284 (D). The learned Counsel was not able to substantiate this argument of his and satisfy us as to how the order could be regarded as being mala fide.

It is not urged that in passing this order the City Commissioner was actuated by feelings of animosity and the order was made with an intent to ruin the petitioner. We are asked to infer mala fides from the circumstance that although the petitioner was discharged only two months ago in proceedings under Section 107, Criminal P. C. the Commissioner of City Police sought to implicate him again unnecessarily and pass this order.

There was material before him and on the material before him he was satisfied that the petitioner was acting in a manner prejudicial to public safety.

It is not always possible for the Court to see the entire material on which the Commissioner was satisfied that the petitioner's conduct was prejudicial to the public safety and in so far as the satisfaction on the material placed before the authority is concerned, the Court cannot substitute its satisfaction in place of the satisfaction of the 'authority before whom the material is placed. As long as the satisfaction is honest, careful and deliberate, the satisfaction of the authority is final and cannot be questioned. It is not the province of the Court to probe into the validity or correctness or adequacy of the reasons which impelled the City Commissioner of Police to pass this Order. Lord Greene M. R. observed in - Point of Ayr Collieries Ltd. v. Lloyd George (1943) 2 All ER 546 (E) :

It is for the competent authority to decide whether the situation requires an immediate step.

In this regard we are supported by the pronouncement of the Chief Justice of India in the case of -- Dr. N. B. Khare v. State of Delhi : [1950]1SCR519 , where his Lordship observed;

The desirability of passing an individual order of externment against a citizen has to be left to an Officer.

Therefore, we are not satisfied that the order in question has been made mala fide.

11. The most important argument was that the fundamental right of freedom of movement and the right to reside in a place was infringed by the action of the Police Commissioner. No doubt, action under Section 26, Hyderabad City Police Act places a restriction on the freedom of movement but the question is whether such restriction could be regarded as being reasonable in the interests of general public covered by Article 19(5) of the Constitution. The limitation imposed on the enjoyment of the right should not be arbitrary or of a nature beyond what is required in the interests of the general public.

The general question as to whether the restriction imposed upon the movements of the petitioner infringed the fundamental right conferred upon him by the Constitution, is concluded by the decision of the Supreme Court in - : 1952CriLJ1147 , wherein such a restriction was regarded as not unreasonable having regard to the menace that is sought to be averted.

12. For all the above reasons we are of the opinion that no case has been made out for the issue of a Writ of Certiorari. This Writ petition, therefore, fails and is therefore dismissed with costs. Advocate's fee Rs. 50/-.

13. Two other cases, namely, of Anjia being Writ No. 4/5 of 1954 and of Sangappa being Writ Petition No. 5/554 also came up for hearing before us and the learned Counsel appearing for the petitioners in the above cases adopted the-same arguments that were advanced in the case of Anant Reddy, Writ Petition No. 188/5/53. As all the writ cases were heard together and the points were common to all the three cases, the judgment pronounced by us in the case of Anant Reddy would govern these two petitions as well and we dismiss these petitions also with costs. Advocates' fee Rs. 50/- in each case.


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