Skip to content


Sarjubhaiya Mathurbhaiya Kahar Vs. Deputy Commissioner of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1984CriLJ1474; (1984)1GLR538(GJ)
AppellantSarjubhaiya Mathurbhaiya Kahar
RespondentDeputy Commissioner of Police and anr.
Cases ReferredB.M. Lakhni v. Malkapur Municipality
Excerpt:
- - it is the great risk involved in allowing such persons to move about freely and with the same amount of liberty enjoyed by the ordinary citizens of the land that justifies preventive detention in their cases. though every citizen is entitled to enjoy personal liberty and freedom encroachment is made thereto in exceptional and extraordinary cases, those cases being that of grave and serious repercussions either on the safety and security of the state or on that of the economic order of this country. at the other end of the spectrum there are petty criminals in this country who might either have committed crime at some time of their lives or may be persons described by the police generally as 'undesirable characters',understood by the people by the ordinary connotation of 'village.....p.s. poti, c.j.1. though we have heard this application along with some others wherein also the same question arises, all the cases having been referred to a full bench because of the importance of the question raised, we are disposing of by this judgment only this application though we have heard counsel in all the other cases on the constitutional question arising in this case. this is because the other cases require consideration on the merits too and reply affidavits have not been filed in those cases yet. we hence delink those cases from this case and remit them to be disposed of by the division bench normally hearing such applications by a separate order. on the question of the constitutional validity of the sections impugned in this case the decision rendered by us in this petition.....
Judgment:

P.S. Poti, C.J.

1. Though we have heard this application along with some others wherein also the same question arises, all the cases having been referred to a Full Bench because of the importance of the question raised, we are disposing of by this judgment only this application though we have heard counsel in all the other cases on the constitutional question arising in this case. This is because the other cases require consideration on the merits too and reply affidavits have not been filed in those cases yet. We hence delink those cases from this case and remit them to be disposed of by the Division Bench normally hearing such applications by a separate order. On the question of the constitutional validity of the sections impugned in this case the decision rendered by us in this petition would give sufficient guidance to the Division Bench.

2. In this country there have been various preventive detention laws enacted by the Parliament from time to time. Persons who are security risks to the State are to be detained under the provisions of some of such enactments. Under some enactments persons who are found to be antisocial and are likely to sabotage the economic and social order in this country are to be held under preventive detention. It is the great risk involved in allowing such persons to move about freely and with the same amount of liberty enjoyed by the ordinary citizens of the land that justifies preventive detention in their cases. It is the apprehension of very grave consequences if they are allowed to be free and on their own that justifies invocation of provisions relating to preventive detention against them. Otherwise detention can only be punitive. A person subjected to preventive detention gets the benefit of many safeguards and more than anything else that of a regular trial according to recognized canons of criminal jurisprudence and also the benefit of adjudication by a traditional court with the in-built safeguard of hierarchy of appeals and revisions. Though every citizen is entitled to enjoy personal liberty and freedom encroachment is made thereto in exceptional and extraordinary cases, those cases being that of grave and serious repercussions either on the safety and security of the State or on that of the economic order of this country. All the same the provisions of law relating to preventive detention which apply to them assure them several safeguards, safeguards which could be tested in the light of the constitutional guarantees particularly those in Articles 21 and 22 of the Constitution. At the other end of the spectrum there are petty criminals in this country who might either have committed crime at some time of their lives or may be persons described by the Police generally as 'undesirable characters', understood by the people by the ordinary connotation of 'village gonadas'. There are statutes in India to deal with them, not by way of preventive detention but by allied measures such as experiment which have the consequence of keeping such people outside their own as well as neighbouring districts and away from their families for fairly long periods. Considering the station in life to which they belong the consequences to them may be as bad as, if not worse than, that of preventive detention. Should the law relating to such experiments satisfy the test of Article 21 of the Constitution and should those persons have at least the snare privileges and right to consideration of their cases as those to whom the law of preventive detention is applied? By reason of the mere assumption by the Police that a person against whom they take action for experiment belongs to an undesirable class in society, should the person against whom such action is taken fall into a different class and be denied all normal rights? Since such action is taken by the Officers of Police can it be said they are not likely to misuse the power? We are tempted to ask the question which Justice Krishna Iyer asked in Prem Chand v. Union of India : 1981CriLJ5 who will police the police

3. Sections 56 and 59 of the Bombay Police Act, 1951 (Bombay Act No. XXII of 1951) are under attack in the petition before us. These provisions enable the Commissioner of Police, in an area where such Commissioner has been appointed under Section 7 of the Act, and the District Magistrate or the Sub Divisional Magistrate empowered in that behalf, in the other areas, to take action concerning movements or acts of any person causing or calculated to cause alarm, danger or harm to person or property or in cases where there are reasonable grounds for believing that such person is engaged or is. about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence. There is a further requirement in order to enable such officer to invoke Section 56 and that is. that in the opinion of such officer witnesses are I. not willing to come forward to give ! evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. We are referring to only that part of Section 56 which is relevant for the purpose of this case. The satisfaction to be reached by the officer concerned is that 'such person concerned is informed in writing of the general nature of the material allegations against him. This is to give him a reasonable opportunity of tendering an explanation regarding the material allegations. Such person is free to examine any witness produced by him except in cases where the officer feels that such motion is made for the purpose of vexation or delay. The person concerned is entitled to appear before the officer in person or through advocate. Thereafter the officer passes the final order. The order may be one directing the person concerned to remove himself outside the area within the local limits of his jurisdiction or area and any district or districts or any part thereof contiguous thereto. These provisions are attacked in this case for various reasons. In substance, these mainly amount to a plea that the procedure prescribed is a make-believe for an opportunity to be given and there is in substance no fairness in the procedure adopted by the authority or officer concerned in passing the final order of experiment. Elaborating this the petitioner here as well as the petitioners in the other similar petitions contend that no specific instances or events based on which action is proposed is being made known to them, the general allegations referred to in Section 56 are merely general statements which do not enable them to give a specific answer or reply to any matter which the authority or officer may have in his mind, they are never confronted with such material at any time, it is never brought to their notice, no evidence is adduced for the entering authority and in the circumstances giving an opportunity to them to examine witnesses or to appear through advocate is of no consequence at all for that would serve no purpose by way of explaining away the case against them. We must mention here that it is agreed that the common characteristics of all the cases which were before us are; (a) no reference to any specific incident or event is made in the general allegations made known to the petitioners, (b) no reference is made to any material as evidence in support of the general allegations, (c) no witness is examined to prove the general allegations or pinpoint any case against the petitioners, (d) no specific reference is made at any. time to any material, and (e) it is only stated in all these cases that no witness is available to depose against the petitioners and (f) in the experiment order as well as in the order in appeal in all these cases passed under Section 60 of the Act no reasons are indicated. It is therefore said that neither the opportunity given by the, authority or the officer under Section 56 read with Section 59 nor the right of appeal to the Government is of any consequence and that these are illusory. There is no minimum protection to the petitioners by way of an opportunity to explain what may be against them. The protection by way of a procedure to secure a reasonable opportunity to defend may vary from case to case, from the safeguard of a trial in a regular court to that of merely giving an opportunity to explain the case against a person. This is a wide range and the appropriateness of adopting the procedure in any given case must depend upon the class to which the case belongs. Even so it is said that no civilized approach will countenance a situation where a person is deprived of his liberty without the minimum procedure of telling him what is against him and giving him an opportunity to answer that, even though he may not be given an opportunity to substantiate his answer by evidence and there are not further safeguards such as appeal and revision. The complaint of the petitioner is that the provisions with regard to furnishing the general nature of the material allegations serve absolutely no purpose as such communication is not capable of any effective answer and in that context the examination of witnesses by the petitioner also makes no sense. If the matter were res integra this plea would have called for a closer examination, but we are afraid the questions are answered by decisions of this Court as well as that of the Supreme Court and we are not in a position to go into the matter Independent of these decisions. But there is one aspect of the case which calls for closer examination, it is said by counsel appearing for the petitioner in the case before us as also the counsel in the other cases which have been delinked that on earlier occasions when courts have pronounced on the Validity of Si. 56 and 59 as also on Section 57 there was no opportunity to examine the fairies of the procedure prescribed by these sections in the light of the guarantee under Article 21 of the Constitution and in the light of the principles governing Art, 22 of the Constipation and now that the Supreme Court has spoken categorically on the need for fairness of procedure in the light of Article 21 of the Constitution the matter calls for a fresh approach. It is urged that tested in the light of the ratio in Maneka Gandhi's case : [1978]2SCR621 and the later decisions of the Supreme Court Sections 56 and 59 must fail the test of reasonableness of procedure and for that reason must be struck down. We will examine whether it is at all open to this Court to go into the availability of another approach to reach a result different from that reached by the Supreme Court on the validity of the three sections. If that is not available to us that, aspect also cannot be examined by us. Appropriately that is a matter which could be urged before the Supreme Court by those aggrieved.

4. We will refer in brief to the decisions in which the question of validity of Sections 56 and 59 and the scope of Section 60 have been considered by courts. Sections 56, 57, 59 and 60 read as follows:

56. When ever it shall appear in areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which State Government may by notification in the Official Gazette extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chap. XII, XVI or XVII of the IPC or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regard the safety of their person or property, or (c) that an1 outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous districts, or part thereof as the case may be, from which he was directed to remove himself.

57. If a person has been convicted-

(a) of an offence under Chap. XII, XVI or XVII of the Indian Penal Code, or

(1)(b) twice, of an offence-

(i) under Section 9 of the Bombay Beggars Act, 1945 or under the Bombay Prevention j of Prostitution Act, 1923, or the Saurashtra Prevention of Prostitution Act, 1952, the Hyderabad Suppression of Immoral Traffic Act, 1952, the Madhya Pradesh Suppression of Immoral Traffic Act, 1953, or the Suppression of Immoral Traffic in Women and Girls Act, 1956, or

(ii) within a period of three years, under Section 65 or 68 of the Bombay Prohibition Act, 1949, or

(c) thrice, of an offence within a period of three years, under any of the provisions of the Bombay Prohibition Act, 1949 or under Section 4 or 12A of the Bombay Prevention of Gambling Act, 1887, or under Section 4 or 12 A of that Act as in force in the Saurashtra area or the Kutch area of the State of Bombay, or under Section 4 of the Gambling Act, or Section 3 of the Public Gambling Act, 1867 as in force in the Vidarbha region of the State of Bombay.

The Commissioner, the District Magistrate or the Sub-Divisional Magistrate 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 or such area and any district or districts, or any part thereof, contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the area or the area and such contiguous districts or part thereof, as the case may be 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 IPC mentioned in that clause, and

(ii) in the case of a person convicted of an offence mentioned in Clause (b) and (c), and offence falling under the provisions of the Acts mentioned respectively in the said clauses.

59. (1) Before an order under Section 55, 56 or 57 is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorized by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him.

(2) The authority or officer proceeding under Sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under Section 55, 56 or 57 require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed.60.3(1) Any person aggrieved by an order made under Section 55, 56 or 57 may appeal to the State Government within thirty days from the date of such order.

4(2) An appeal under this section shall be preferred in duplicate in the form of a memorandum setting forth concisely the grounds of objections to the order appealed against and shall be accompanied by that order or a certified copy thereof.

(3) On receipt of such appeal, the State Government may, after giving a reasonable opportunity to the appellant to be heard either personally or by a pleader, advocate or attorney and after such further inquiry, if any, as it may deem necessary, confirm, vary or cancel or set aside the order appealed against, and make its order accordingly:

Provided that the order appealed against shall remain in force pending the disposal of the appeal unless the State Government otherwise directs.(4) In calculating the period of thirty days provided for an appeal under this section, the time taken for granting a certified copy of the order appealed Against, shall be excluded.

5. We are not concerned with Section 57 in this case, but we have referred to it for the reason that it is an allied section with the difference that the class of persons who are treated under that section are persons who have already been convicted of certain offences. It is once in respect of certain offences, twice In respect of certain other offences and thrice In respect of certain other offences. Against such class of persons preventive action by way of experiment is contemplated under Section 57. Persons who are dealt with under Section 56 must necessarily be treated with less severity, for they are not persons against whom there is any case of past criminal record or action being taken on that basis. They are persons against whom merely for the reason that there is suspicion of their causing or calculated to cause alarm, danger, or harm to person or property or of being engaged in or about to be engaged in the commission of offence action is being taken. There is no question of any public order or public safety or security of the State in the concept of action under Section 56. This is quite important. The procedure under Section 59 applies both to action taken under Section 56 and also action taken under Section 57, and the ultimate consequence in both the cases are also similar.

6. Gurbachan Singh's case : 1952CriLJ1147 was perhaps one of the earliest cases where a challenge similar to that made in this case was urged before the Supreme Court. There the sections challenged were Section 27(1)(a) of the City of Bombay Police Act corresponding to Section 56 and Section 27(4) of that Act corresponding to Section 59 of the Bombay Police Act, 1951. These sections were challenged as infringing the freedom guaranteed to the citizen under Article 19(1)(d) and (e) as well as Article 14 of the Constitution of India. The Supreme Court expressed the view that it was difficult to say that the provision in Section 27(1)(a) was unreasonable. It is to be noticed that the only point urged in that case by way of challenge to that provision was that there was no right of cross-examination of witnesses and the Court was of the view that this by itself will not vitiate the provision. Answering the charge of infringement of Article 14 it was mentioned that the power to take action vested in a very high responsible officer. How far such an approach would be true of the present day, three decades after the decision in that case is a matter which, according to the petitioner's counsel, calls for fresh consideration.

7. The case before the Supreme Court in Had Khemu Gawali v. Deputy Commr. of Police Bombay : 1956CriLJ1104 was one concerning the validity of Section 57 of the Bombay Police Act. Construing the provision in Section 57 of the Act the court took the view that the power to remove a person out of certain limits was intended to break up criminal gangs and the section is plainly meant to prevent a person who has been proved to be a criminal from dating in repetition of his criminal propensities. Evidently this approach to the question under Section 57 may not be as such applicable to a case under Section 56.

8. In Bhagubhai's case : 1956CriLJ1126 it was not contended, as seen from para 10 of the judgment, that the petitioners have not been given the opportunity contemplated by Section 59 of the Act. The only grievance sought to be made out was that particulars of the evidence against the petitioners and of their alleged activities had not been given to them. The Court did not decide that question in that case, but only referred to the judgment in Hari Khemu Gawali v. Deputy Commr. of Police Bombay : 1956CriLJ1104 as having decided that question.

9. One significant fact is that in both these cases Jagannadhadas, J. had expressed his views by independent judgments, a concurring judgment in Bhagubhai's case and a dissenting judgment in Hari Khemu Gawali's case. In the concurring judgment the learned Judge expressed the view that if the matter were res integra he should have felt difficulty in upholding the validity of Section 56 in so far as it did not demarcate the application of the section to the more serious classes of offences falling within the specified Chapters. The learned Judge further observed Para 17 of : 1956CriLJ1126 :

I should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a period as two years.

In the dissenting judgment in the case where Section 57 of the Act was under attack, Hari Khemu Gawali v. Deputy Commr. of Police Bombay : 1956CriLJ1104 , the learned Judge expressed the view that the provision prima facie infringes the fundamental right of a citizen under Article 19(1)(d) and (e) of the Constitution. The learned Judge, in the course of the judgment, observed:

The fact that our Constitution which declares fundamental rights also permits a law of preventive detention under very limited safeguards and that such laws have taken the pattern of the exercise of power by the Government or by its officers for Specified purposes on the basis of their subjective satisfaction, has made us prone to reconcile ourselves to (other kinds of restrictive laws affecting personal liberty though based on the subjective satisfaction of executive officers, if only they provide for certain minimum safeguards such as supply of grounds, right of representation, and the scope for review by a superior authority or by an advisory body.

In the same dissenting judgment Justice Jagannadhadas at the end of para 14 of the judgment observed:

While, of course, abuse of power is not to be assumed to test its reasonableness neither is a power given in wide terms and prima facie unreasonable, to be considered reasonable on an assumption of its proper use.

10. A Full Bench of this Court had occasion to consider in Sandhi Mamad Kala v. State of Gujarat (1973) 14 Guj LR 384 whether in passing an order of experiment under Section 56 of the Bombay Police Act, 1951 and the State Government in disposing of an appeal against an experiment order under Section 60 are bound to give reasons in support of the orders respectively made by them or in other words there is any obligation to make speaking orders. After a fairly elaborate discussion of the law the Court took the view that the decision made by the authority could hardly be a subject matter for judicial review and the functions discharged by the extorting authority is administrative and not in the exercise of quasi-judicial function. It is evident that to a considerable extent this view was based on the decision of the Supreme Court in Hari Khemu Gawali v. Deputy Commr. of Police Bombay : 1956CriLJ1104 to which we have already adverted.

11. The case before us is more or less on all fours with the case in State of Gujarat v. Mehbubkhan AIR 1968 SC 1468 : 1969 Cri LJ 26. As contended in this case it was contended therein also that the notice given did not specify the particulars. Nevertheless, the Court, speaking through Vaidialingam, J., reversing the judgment of the Gujarat High Court held the notice to be good enough. We may refer to the following passage in that judgment (Para 20):

Without attempting to be exhaustive, we may state that when a person is stated to be a 'thief' that allegation is vague. Again, when it is said that 'A stole a watch from X on a particular day and at a particular place' the allegation can be said to be particular. Again, when it is stated that 'X is seen at crowded bus stands and he picks pockets' it is of a general nature of a material allegation. Under the last illustration, given above, will come the allegations, which according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a notice, under Section 59, he can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained.

We may refer to one more decision in this context, that is in Pandharinath v. State of Maharashtra : 1973CriLJ612 . The provision in Section 56 was examined in that case and the Court observed in para 9:

A full and complete disclosure of particulars such as is requisite in an open prosecution will frustrate the very purpose of an externment proceeding. If the show-cause notice were to furnish to the proposed extreme concrete data like specific dates of incidents or the names of persons involved in those incidents, it would be easy enough to fix the identity of those who out of fear of injury to their person or property are unwilling to depose in public. There is a brand, of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence.

The Court also dealt with the contention that the order of the Government being not a speaking order it should be held that the right of appeal is illusory. The Court negatived this contention and Chandrachud, J. as he then was, speaking for the Bench said:

Neither the entering authority nor the State Government in appeal can be asked to write reasoned order in the nature of a judgment. If those authorities were to discuss the evidence in the case it would be easy to fix the identity of witnesses who were unwilling to depose in public against the proposed externee.

12. In the background of the above discussion we have necessarily to hold that on the question of invalidity of the provisions in Sections 56 and 59 on the ground that these provisions infringe Article 19(1)(d) and (e) and Article 14 of the Constitution and also on the validity of Section 60 on the ground that the right of appeal is illusory the matter is no longer open to consideration by this Court. The contention raised by learned Counsel for the petitioner that the decision in State of M.P. v. Baldeo Prasad AIR 1961 SC 203 : 1961 (1) Cri LJ 442 strikes a different note may not help the petitioner as that decision was rendered in the context of a different enactment. It is urged before us that merely because the Police start with an assumption that a person is an undesirable character he cannot fall into that class and lose all right which normally a citizen would have. In other words it is said that at no time was there any scope for determination of the question whether the person against whom action was commenced fell into any undesirable class, and that could not be the case merely because action is taken against a person by the Police as if he falls in that class. It is said to be highly unfair. The decision just now adverted to deals with goondas and in that context the Supreme Court said that an opportunity had to be given. Even such an opportunity, according to the petitioner, is not made available to those persons against whom Sections 56 and 59 of the Bombay Police Act are invoked. That again is not a question which is open to us to examine.

13. Now we come to the further contention by the counsel in this case that a law, not found to infringe Article 19 or Article 14 of the Constitution, may still be bad if it operates to deprive a person of his liberty and the procedure for such deprivation is not under a law which is fair, just and reasonable. Evidently the question was not considered in the earlier cases because the content of Article 21 was understood differently untill Maneka Gandhi's case : [1978]2SCR621 revolutionised that aspect of the law. The contention of the petitioner in this regard may be summarised thus : Sections 56 and 59 of the Act must pass also the test of fairness and reasonableness, such fairness is to be determined from the perspective of the person whose liberty is affected, tested on this approach any law which gives no opportunity whatsoever to a person before depriving him of his liberty would certainly be unfair, the provision to inform the person concerned about the general nature of material allegations is as good as giving him no notice of the reasons for the action against him and an effective opportunity even to make a representation is denied to him, let alone the examination of his case by a high power advisory body just as in the case of a preventive detention law under Article 22 of the Constitution. It is. urged that for these reasons the law must fail as not passing the test of fairness in procedure leading to deprivation of liberty.

14. It was in view of the importance of this approach and particularly in view of the contention that the earlier decisions had no occasion to examine this question in the light of the provisions of Article 21 of the Constitution that a Division Bench of this Court felt it proper to refer the case for. decision by a Full Bench. In Maneka Gandhi's case : [1978]2SCR621 Justice Krishna Iyer concurring with Justice Bhagwati said (at p. 658):

Procedure established by law, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex-necessitate import into those weighty words an adjectival rule of law, civilized in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the procession tail will wag the, substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with 'do or die' patriotism, was launched be sapped by formalistic and pharisaic prescriptions regardless of essential standards? An enacted apparition is a constitutional illusion. Proconsul justice is writ patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature.

117. So I am convinced that to frustrate Article 21 by relying on any formal adjectival statute, however flimsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, riot foolish, carefully designed to effectuate, not to subvert the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalized only by civilized processes. You cannot claim that it is a legal procedure if the passport is granted or refused by taking loss, ordeal of fire or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasized by the strong word 'established' which means 'settled firmly' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes 'established' procedure. And 'Law' leaves little doubt that it is normae regarded as just since law is the means and justice is the end.

The learned Judge followed it up by the observations:

119. Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend, their rights; observance of fundamental right is not regarded as good politics and their transgression as bad politics. I sometimes pensively reflect that people's militant awareness rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of 'question hour' and the slow and unsure delivery of Court writ 'Community Consciousness and the Indian Constitution' is a fascinating subject of sociological relevance in many areas.

The statement of the law in Maneka Gandhi's case : [1978]2SCR621 has been neatly summed up in Bachan Singh's case : 1980CriLJ636 in paras 135 and 136 and we are extracting those paragraphs:

135. In Maneka Gandhi's case, which wa.s a decision by a Bench of seven learned Judges, it was held by Bhagwati, J. in his concurring judgment, that the expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of sights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights under Article 19. It was further observed that Articles 14, 19 and 21 are not to be interpreted in water-tight compartments, and consequently, a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14. The principle of reasonableness pervades all the three Articles, with the result that the procedure contemplated by Article 21 must be 'right and just and fair' and not 'arbitrary, fanciful or oppressive', otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied.

136. Article 21 reads as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

If this Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows:

No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.

In the converse positive form, the expanded Article will read as below:

A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.

Thus expanded and read for interpretative purposes, Article 21 clearly brings out the implication, that the Founding Fathers recognized the right of the State to deprive a person of his life or personal liberty or accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the Constitution which show that the Constitution-makers were fully cognizant of the existence of death penalty for murder and certain other offences in the IPC. Entries 1 and 2 in List III, Concurrent List, of the Seventh Schedule, specifically refer to the IPC and the Cr.P.C. as in force at the Commencement of the Constitution, Article 72(1)(c) specifically invests the President with power to suspend, remit or commute the sentence of any person convicted of any offence, and also 'in all cases where the sentence is a sentence of death'. Likewise, under Article 161, the Governor of a State has been given power to suspend, remit or commute, inter alia, the sentence of death of any person convicted of murder or other capital offence relating to a matter to which the executive power of the State extends. Article 134, in terns, gives a right of appeal to the Supreme Court to a person who, on appeal, is sentenced to death by the High Court, after reversal of his acquittal by the trial Court. Under the successive Cr.P.C. which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment. By reason of the same, constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile 'the dignity of the individual' within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution.

15. It may be of interest here to refer to the case of an order of externment and surveillance under the Delhi Police Act which arose before the Supreme Court in Prem Chand v. Union of India : 1981CriLJ5 after the decision in Maneka Gandhi's case : [1978]2SCR621 Sections 47 and 50 of the Delhi Police Act clothe the Commissioner of Police with externment powers necessary for keeping the capital city crime-free. That includes the power to remove of persons about to commit offences. In exercise of this power the Deputy Commissioner of Police, Delhi took up proceedings against the petitioner in that case and directed him to show cause why he should not be externed from the Union Territory of Delhi. The case for, externment attempted to be made out was ' on the basis of allegations, which* were vague statements,- as Jo the activities of the petitioner as causing and as calculated to cause harm, alarm and danger to the residents of certain localities. In that case the Supreme Court did not have to decide the case on the merit as it was represented for the State that no further action would be taken against the petitioner. Even so because of the importance of the question raised Krishna Iyer, J., speaking for the Bench, observed Paras 9 & 10 of AIR 1981 SC:

But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the police. Therefore, Sections 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against, is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied.' We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi : [1978]2SCR621 .

The learned Judges also cautioned:

By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti-social elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nations health, wealth, peace and security in jeopardy. The only insistence is that the means must also be as good as the ends.

16. Our attention has been drawn by the learned Advocate General appearing for the State to a recent decision of the High Court of Bombay reported in Criminal Law Reporter is Banas Domnic Miranda v. A.K. Ankola 1983 Cri LR (Mah) 58 : 1982 Cri LJ 2059 in support of the contention of the State that Maneka Gandhi's case : [1978]2SCR621 should make no difference to the view taken on the validity of Sections 56 and 59. In para 11 of the Report the Court said:

The law is an extraordinary one and has been enacted to meet exceptional cases. Reasonableness or justness of the procedure will have to be tested in this background and if so tested, it will have to be held that the procedure prescribed provides sufficient safeguards to an innocent person to protect himself and is otherwise reasonable, fair and just. Once such a finding is recorded, then even on the basis of the law laid down by the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 it cannot be said that any of the provisions and particularly provisions of Sections 56 and 59 of the Bombay Police Act are in any way ultra vires of the petitioner's fundamental right to liberty as authorised in Article 21 of the Constitution. Further the law laid down by the Supreme Court in Maneka Gandhi's case will have to be understood in the context of the provisions of the Passport Act. It is well settled that the rules of natural justice are not embodied rule. The doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application must also depend upon framework of law under which enquiry is held. So considered, in our opinion the procedure prescribed by Sections 56 and 59 and other relevant provisions of the Bombay Police Act cannot be termed to be unjust or unreasonable having regard to the object sought to be achieved and the mischief or the defect with which the Legislature wanted to deal with, tf the relevant provisions of the Bombay Police Act are tested in this background, then it will have to be held that the procedure prescribed is not violative of Article 21 read with Article 14 of the Constitution.

Had the matter been open to examination by us we would have gone into this question and perhaps we might have been persuaded to consider whether a different approach should not be made to the validity of Sections 56 and 59. Mr. Takwani appearing for the petitioner in one of the cases delinked referred to the decision in A.K. Roy v. Union of India : 1982CriLJ340 wherein there was an attack to the provisions of National Security Act. According to the learned Counsel that Act was upheld only because that there were safeguards provided in the Act itself in regard to procedure. The learned Counsel asked the question whether the class of people who are to receive treatment under Section 56 are worse than those class of people who are treated under the National Security Act and if so whether they are not entitled at least to those safeguards

17. May be that at one time it was expected that Section 56 of the Act would be used with considerable circumspection and that approach might have influenced in upholding the validity of the Act despite the fact that unlike in statutes relating to preventive detention there is no gurantee of minimum safeguards of procedure in the impugned sections, safeguards which will assure an effective opportunity to a person against whom, for reasons best known to the Police, action is initiated. Our attention has been drawn by the counsel for the petitioner in this case to instances where Section 56 of the Bombay police Act has been invoked even against practicing advocates. Particular reference has been made to Spl. Crl. Application No. 192/80 challenging action under Section 56 of the Bombay Police Act taken up against a practicing advocate who was an elected member of the Balsar Panchayat and was also a labour leader. It is said that the assumption that the Act is not capable of misuse particularly when the Police might very often be influenced by extraneous forces may not be warranted and oh the mere assumption that the provision is not likely to be misused the Court will not be justified in refusing to go into the fairness in the approach made by the enactment particularly in view of the decision in Maneka Gandhi's case : [1978]2SCR621 .

18. However much we are tempted to go into this question by the very persuasive arguments of Mr. H.L. Patel appearing for the petitioner in this case and Mr. Takwani and others supporting him we think it is not open to this Court to go into this plea since the Supreme Court has spoken on the validity of the section and that is law under Article 141 of the Constitution. That cannot be overlooked by this Court on the ground that the Supreme Court had no occasion to test the validity of the sections impugned, in the light of Article 21 of the Constitution. In a case which arose under the C.P. & Berar Municipalities Act the right of a municipality governed by that Act to levy a tax on bales of cotton ginned at the prescribed rate under Section 66(1)(b) was challenged by a tax payer. The Supreme Court held in that case, Bharat Kala Bhandar v. Municipal Committee of Dhamangaon : [1966]59ITR73(SC) that levy of tax on cotton ginned by the tax payer in excess of the amount prescribed by Article 276 of the Constitution was invalid, and a suit for refund of excess tax was maintainable. Despite that decision the High Court, in a subsequent case proceeded to deal with the question before it as if the decision would not be applicable and the justification shown was that relevant provisions were not brought to the notice of the Supreme Court. In dealing with this the Supreme Court in the decision in B.M. Lakhni v. Malkapur Municipality : AIR1970SC1002 observed that the decision was binding on the High Court and the High Court could not ignore it because they thought that 'the relevant provisions were not brought to the notice of the Court'.

In this view, we, having stated the case of the petitioners as presented to us, as they desired us to do, do not propose to go into the question since we hold that the challenge to vires of Sections 56 and 59 of the Bombay Police Act would not be permissible in this Court in view of the matter having been considered by the Supreme Court on earlier occasions, as a result of which consideration the sections have been held to be valid. A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court may not be available before this Court to the petitioner in this case. Hence we find against the petitioner on the question of validity of the impugned sections.

19. Now we will go into the merits. The main contentions raised on the merits will have to be answered against the petitioner on the basis of the decisions adverted to. As we have already indicated the plea that the notice issued was vague and the general allegations did not give any notice of specific events or incidents is a matter which we do hot propose to deal with in view of what we have already said. So is the contention that the order by the entering authority and the order in appeal are not speaking orders. The decisions which we have adverted to cover that point also and in the light of those decisions we have to hold that these are not infirmities in the proceedings. It is urged that the notice issued to the petitioner filed as annexure 'A' prior to the passing of the externment order mentions that 'victims were not coming forward to give evidence' while the externment order Annexure 'B' mentions that 'witnesses are not coming forward' and therefore the order is beyond the scope of the notice issued. The notice refers not to victims but to 'witnesses who are victims' and therefore we do not find any divergence between the notice and the order. Further it is contended that in the externment order Annexure 'B' reference is made only to ground mentioned in Section 56(b) whereas-the appellate order makes reference to the grounds covered by Section 56(a) and (b) and therefore the appellate order is not properly directed. The appellate order makes reference to allegations falling under Section 56(a) and (b) as made in the notice. The notice Annexure 'A' contains allegations which fall under Section 56(a) as well as (b). Hence there is no scope for this plea also. It is further said that one of the allegations in the notice Annexure 'A' issued prior to the externment order does not fall within the scope of Section 56. Reference there is to the sale of liquor by the petitioner and his associates, and it is said that the sale of liquor causes disorder, evidently referring to ground (a), of causing alram. We do not think that this too is any reason to hold the externment order bad. Consequently in the light of the approach made to the contentions raised by the petitioner we do not think that there is any case for interference. The petition has to be dismissed on the merits and the. rule discharged. We do so.

20. The fact that we have not vacated the order of externment in this case and have upheld the validity of the sections need not necessarily mean that the externing authority should continue passing orders adopting the same procedure and in the same fashion. Considering the very disastrous consequences of an externment order, the financial situation of the class of people against whom such orders are being usually passed and the helplessness of persons who are subjected to such orders it will be worthwhile for the authorities concerned to exercise considerable self-restraint in passing such orders. It is also advisable for them to attempt to make a very judicial approach remembering that the consequences of their order is the ' deprivation of the freedom of movement of the person who is subjected to that order, quite often unsettling him and keeping him away from his home. It is not likely that such externees could rehabilitate themselves in another district of the State particularly with the background of their externment and there is every likelihood of such persons getting involved deeper in the criminal life of the area to which they are extemed. The power conferred on the externing authority should not be exercised with a penal content or with a punitive direction and should be exercised with due regard for human rights. We felt that while dismissing the petition now before us and adopting a course which may perhaps result in the dismissal of other petitions too a word of caution would not be out of place. We hope that this will be taken in the right spirit.

21. The counsel for the petitioner makes an oral application under Article 134(1)(c) read with Article 134A of the Constitution for leave to appeal to the Supreme Court of India. We find that there is a substantial question of law of general importance calling for decision by the Supreme Court arising in this case. We need not reiterate the reasons why we have been persuaded to grant the leave as the judgment itself indicates why we consider that the matter requires examination by the Supreme Court and that the contentions raised before us can appropriately be noticed only by the Supreme Court. Hence leave to appeal to the Supreme Court granted.

22. The interim relief granted under order dt. 22.11.1983 will continue for a period of four weeks from today in order to enable the petitioner to obtain relief from the Supreme Court.


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