Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petitions Nos. 439 and 440 of 1955

Decision Date: 8 May 1956

Coram: Bhuvneshwar P. Sinha, B. Jagannadhadas, Syed Jaffer Imam, S. R. Das, Venkatarama Ayyar

In this case the petitioner, Bhagubhai Dullabhabhai Bhandari, brought a petition before the Supreme Court of India on 8 May 1956 against the District Magistrate of Thana and other respondents. The judgment was recorded by Justice Bhuvneshwar P. Sinha, who also authored the opinion, and the bench was comprised of Justices Bhuvneshwar P. Sinha, B. Jagannadhadas and Syed Jaffer Imam.

The petition was presented under Article 32 of the Constitution of India for the enforcement of fundamental rights. The petitioner was identified as Bhagubhai Dullabhabhai Bhandari, while the respondents were named as the District Magistrate, Thana, the Deputy Superintendent of Police, the Sub‑Divisional Police Officer of Bhivandi Division, and the State of Bombay. The case is reported in 1956 AIR 585 and 1956 SCR 533. The statutory provision under challenge was Section 56 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951), and the principal questions involved the constitutional validity of the provision, the reasonableness of an order of externment, and the interpretation of the term “witness” within the section, including whether the provision applied to members of the police force or the Customs Department.

The headnote of the judgment stated that Section 56 of the Bombay Police Act, 1951, was not unconstitutional and did not violate Article 19 of the Constitution. The Court followed the precedent set in Gurbachan Singh v. State of Bombay ([1952] SCR 737). It observed that for the provision to operate, the officer concerned must be satisfied that the witnesses are unwilling to give evidence in public, but it is not necessary to prove that all witnesses are unwilling. The Court further held that the wording of the section does not permit a restricted meaning of “witnesses” and that the term equally applies to members of the police force as well as to employees and officers of the Customs Department, as explained in the Gurbachan Singh decision.

Under Section 56 of the Bombay Police Act, an order of externment had been issued directing the petitioner to remove himself from the limits of Greater Bombay and to refrain from entering that area for a period of two years unless he obtained the prescribed permission. The petitioner subsequently entered Greater Bombay to attend a court proceeding in a case in which a warrant of arrest had been issued against him. He was convicted for breaching the externment order and argued that the conviction itself demonstrated the unreasonableness of the restriction imposed by the order.

The Court held that the restrictions imposed by the order could not be characterised as unreasonable. It noted that the petitioner could have avoided prosecution and consequent conviction by first seeking and obtaining permission from the authority authorised to grant such permission. Consequently, the conviction did not, in the Court’s view, prove that the restriction was unreasonable.

Justice Jagannadhadas delivered a separate opinion. He observed that, had the matter been considered anew, he would have found difficulty in upholding the validity of Section 56(b) of the Bombay Police Act, 1951, because the provision did not specifically limit its application to the more serious classes of offences enumerated in the relevant chapters. He further expressed concern about the reasonableness of a provision that empowers executive officers to order the externment of a person for a period as long as two years.

The petition originated in the original jurisdiction of the Supreme Court as Petitions Nos. 439 and 440 of 1955. Both petitions were filed pursuant to Article 32 of the Constitution of India, seeking enforcement of the petitioner’s fundamental rights against the externment orders issued under the challenged statutory provision.

The petitioners were represented by counsel H. J. Umrigar and R. A. Govind in Petition No. 439 of 1955, and by counsel J. B. Dadachanji in Petition No. 440 of 1955. The respondents were represented by M. C. Setalvad, Attorney‑General of India, together with B. Sen and R. H. Dhebar. The judgment dated 8 May 1956 was pronounced by Chief Justice S. R. Das, with the participation of Justices Venkatarama Ayyar, B. P. Sinha and Jafer Imam. Justice Sinha delivered the main opinion, while Justice Jagannadhadas delivered a separate judgment.

These two petitions were filed under article 32 of the Constitution of India, seeking to question the constitutional validity of certain provisions of the Bombay Police Act, 1951 (referred to herein as “the Act”), particularly section 56, and to contest the orders that had been issued under that section to extern the petitioners. In Petition No. 439 of 1955, the petitioner was identified as Babubhai Dullabhbhai Bhandari. The respondents in that petition were the District Magistrate of Thana, the Deputy Superintendent of Police who also functioned as Sub‑Divisional Police Officer for the Bhiwandi Division, and the State of Bombay, designated respectively as respondents 1, 2 and 3. The petitioner, a citizen of India, was engaged in the trade of grass at the railway station of Bhilad, situated on the Western Railway line.

On 21 January 1955, the Deputy Superintendent of Police and Sub‑Divisional Police Officer for the Bhiwandi Division served a notice to the petitioner under the authority of section 56 of the Act. The notice, marked Ext. 3/1 of 1955 and issued from the office of the Sub‑Divisional Police Officer, Bhiwandi, was signed by Shri C. V. Bapat. It declared that it was proposed to remove the petitioner, identified as Shri Bhagu Dubai Bhandari alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad, District Thana, from the District of Thana and to prohibit his entry or return for a period of two years from the date of the order made under section 56. The notice set out several allegations: first, that the petitioner’s activities had caused and were calculated to cause alarm, danger and harm to persons and property in Bhilad and surrounding areas; second, that he dealt in smuggled foreign liquor and employed a veil of secrecy backed by criminal intimidation and physical violence against villagers and other conscientious individuals; third, that over the past five years he had repeatedly assaulted persons with the assistance of associates, using violent acts to instill terror in villagers so they would not challenge him or his men; fourth, that he had assaulted and intimidated Central Excise and Customs officials with his gang to prevent them from investigating his anti‑national, anti‑social and illegal activities; fifth, that as a result of these unlawful and dangerous acts, he was held in “terrific awe” by Central Excise and Customs officers and the villagers of the Bhilad area, who lived under constant apprehension of danger to their person and property.

The officers of the police, along with other officials and the villagers living in the Bhilad area, were described as constantly working under a serious fear for the safety of their lives and their property. It was alleged that the petitioner, Bhagubhai Dullabhai Bhandari, together with his associates, employed criminal intimidation against the villagers so as to stop them from seeking help through lawful means. Further, it was asserted that the petitioner and his companions possessed unlicensed firearms, a circumstance that had generated considerable alarm and had created a pervasive feeling of insecurity among the residents of Bhilad, the neighbouring villages, and among the employees of the Central Excise and Customs departments. The same allegations noted that the available witnesses were unwilling to appear before the authorities or to give testimony because they feared danger and damage to their persons and property. In exercise of the authority granted under section 59 of the Bombay Police Act, 1951, Shri C. V. Bapat, who held the position of Deputy Superintendent of Police and Sub‑Divisional Police Officer for the Bhiwandi Division of District Thana, issued a notice dated 21 January 1955. By this notice, which was signed and sealed, the petitioner was directed to present himself before the same officer at 11 a.m. on 27 January 1955 at the Sub‑Divisional Police Office in Dahanu, to provide his explanation of the allegations. The notice also informed the petitioner that he could be represented by an advocate for the purpose of giving his explanation and for examining any witnesses he wished to produce. Responding to the notice, the petitioner appeared before the Deputy Superintendent on the appointed date, and the hearing of his case was conducted on several subsequent dates. During these proceedings the petitioner claimed that he had examined seven “respectable persons” who were prepared to testify on his behalf. Ultimately, on 11 July 1955, the District Magistrate of Thana issued an order of externment against the petitioner, which was annexed as Exhibit D to the petition. The order recounted that after considering the evidence presented and the explanation offered by the petitioner, the magistrate was satisfied that the petitioner engaged in giving threats, assaulting Central Excise and Customs officials as well as residents of Bhilad and surrounding villages, and that he was involved in the illicit trafficking of foreign liquor from Daman. The magistrate further recorded that witnesses were unwilling to appear publicly against Shri Bhagubhai Dullabhai Bhandari, alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad, because of their apprehension regarding the safety of their persons and property. The petitioner challenged this order of externment on the grounds that it was illegal, ultra vires, and beyond the magistrate’s authority, and he consequently filed a petition seeking its set‑aside.

The petition asked this Court to issue an appropriate writ, direction or order against the respondents that would prohibit them, their servants and agents from taking any steps to enforce, further or pursue the order of externment and from interfering in any way with the petitioner’s right to reside in Bhilad and to carry on his business there. The petitioner had earlier filed an appeal to the Government against the externment order, but that appeal was dismissed on 9 September 1955. Subsequently the petitioner approached the High Court of Judicature at Bombay under article 226 of the Constitution; however the High Court dismissed the application in limine by an order dated 7 November 1955. The District Magistrate of Thana, who is the first respondent, filed an affidavit in answer to the petition in which he swore that he had passed the contested externment order after examining the police reports, considering the explanation offered by the petitioner, reviewing the statements of the witnesses produced by the petitioner and hearing the petitioner’s counsel. In the same affidavit he stated that the general nature of the material allegations against the petitioner had been communicated to him and that the material was clear and not vague. He explained that the names of the persons who had supplied the information against the petitioner were not disclosed to him because those persons were unwilling to appear publicly and give evidence as witnesses. He was therefore satisfied that witnesses were unwilling to come forward to give evidence in public against the petitioner. He further affirmed that the petitioner’s movements and acts were causing alarm, danger or harm to the personal property of the general public in the vicinity of Bhilad and were also creating danger and alarm to public servants of the police and the Central Excise, who were performing responsible duties at Bhilad, a location on the Indian border adjoining the Portuguese territory of Daman. He admitted that the petitioner had been discharged by the Judicial Magistrate, First Class, Umbergaon because the witnesses failed to appear and testify against him for fear of the petitioner. In a separate matter, Petition No 440 of 1955 was filed by Kunwar Rameshwar Singh, who is described as a citizen of India and a “social worker” associated with several social organisations and whose main activity he claimed was the improvement of the condition of prostitutes and singing girls in certain quarters of Bombay. The respondents in that petition were Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (I) C.I.D., Greater Bombay; the Commissioner of Police, Greater Bombay; and the State of Bombay. On 2 November 1954 the petitioner had been served with a notice under section 56 read with section 59 of the Bombay Police Act, 1951 (Exhibit A to the petition), which set out the allegations against him and called upon him to explain those matters.

In response to the notice issued under section 56 read with section 59 of the Bombay Police Act, the petitioner appeared before the Superintendent of Police to show cause against the contemplated action. After hearing the petitioner, the Commissioner of Police, who is the second respondent, issued an order on 4 January 1955 directing that the petitioner must remove himself from the limits of Greater Bombay within seven days. The order is identified as Exhibit H and is framed as an Order of Externment pursuant to section 56 of the Bombay Police Act, 1951, and is recorded under police station Nagpada as No. 7/c/43/1955. The order refers to two earlier orders of the Commissioner dated 13 August 1954 and 11 December 1954, which were made under sub‑section (2) of section 10 of the same Act, thereby extending the powers, functions and duties conferred by the Act to the Deputy Commissioners of Police, Greater Bombay.

Evidence was later placed before the Deputy Commissioner of Police, Crime Branch (1), concerning the person known as Kunwar Rameshwar Singh. The evidence states that since October 1953, in the localities of Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and adjoining areas of Greater Bombay, his movements and actions have caused alarm and harm to residents, business persons and visitors. The allegations detail that, with the assistance of associates identified as Sk Makbool, Sk Hussain, Abdul Rahiman, Suleman alias Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others, he has extorted money from women who work as prostitutes or singing girls by threatening assault and bodily injury. He is further accused of assaulting or threatening those women who refuse to pay, posting his associates near their places of work to prevent customers from entering, extorting shop‑keepers, hotel‑keepers, merchants and hawkers, and rent collectors by assault or threat of assault, damaging property of those who do not comply, and accosting customers of the singing‑girl establishments to demand money under similar threats. The evidence concludes that several acts of this nature have been committed. Additionally, it is stated that witnesses to these incidents are unwilling to appear in public because they fear retaliation by the petitioner or his associates.

In this case the judge noted that potential witnesses feared giving public testimony because they feared assault by the accused or his associates. The judge then stated that he had heard the accused, considered the explanation offered by him, examined the evidence presented by the witnesses produced by the accused, and listened to his counsel. After evaluating all the evidence and explanations, the judge concluded that the movements and acts of Kunwar Rameshwar Singh since October 1953 were creating alarm and injury to persons residing in, carrying on business in, or visiting the localities known as Falkland Road, Foras Road, Sukhalaji Street, Bapty Road, Kamathipura and adjoining areas in Greater Bombay, and that Singh was engaged in the activities previously described. The judge further observed that, in his view, witnesses were unwilling to appear publicly against the accused because of apprehensions for their safety. Consequently, exercising the powers granted under section 56 of the relevant Act, Shri W. K. Patil, Deputy Commissioner of Police, Crime Branch (CID), Greater Bombay, issued a direction ordering Kunwar Rameshwar Singh to leave the limits of Greater Bombay via the Central Railway route within seven days of service of the order. The order additionally prohibited Singh from entering Greater Bombay for two years from the date of the order unless he obtained written permission from the Commissioner of Police, Greater Bombay, or the Government of Bombay. The order was signed by W. K. Patil, Deputy Commissioner of Police, Crime Branch (CID), Greater Bombay. The order was self‑contained and set out the allegations against Singh, to which he was invited to respond. The petitioner subsequently appealed to the State of Bombay, the third respondent, but the appeal was dismissed on 17 January 1955. The petitioner then challenged the legality of the order by filing a petition under article 226 of the Constitution in the Bombay High Court; that petition was dismissed on 14 March 1955 after hearing. The High Court’s judgment, reproduced as Exhibit D, recorded that the presiding judge briefly outlined the petitioner’s main allegations and the affidavit filed by the first respondent. The judge observed that, given the statements in the petition and the affidavit, it was impossible to conclude that the Deputy Commissioner of Police had knowledge that witnesses were willing to testify against the petitioner. The petitioner subsequently filed a Letters Patent appeal, which a Division Bench consisting of the Chief Justice and another Judge of the Bombay High Court dismissed, holding that once the authority had formed the opinion that witnesses were unwilling to give public evidence, the court could not overturn that opinion.

The Court observed that once the authority had formed the opinion that witnesses were unwilling to give evidence in public against the petitioner, the adjudicating court could not disregard that opinion. It also rejected the petitioner's argument that the first respondent had acted without bona fides in initiating the proceedings. The petitioner had moved beyond the boundaries of Greater Bombay. Upon learning that a warrant of arrest had been issued against him in a pending case before the Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on 6 April 1955, he returned to Greater Bombay to attend the court hearing. During that visit he was arrested under the Act for violating the externment order. He was then tried before the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under section 142 of the Act. The Magistrate convicted him and sentenced him to nine months of rigorous imprisonment by a judgment dated 8 September 1955. In reaching this decision, the learned Magistrate rejected the petitioner's claim that the externment order was illegal, relying principally on the earlier judgments of the High Court that had upheld the constitutionality of the order. Concerning the petitioner’s defence that he had entered Greater Bombay in obedience to the arrest warrant, the Magistrate noted that, according to the petitioner's counsel, the real purpose of his return was “to test the validity of the order.” The Magistrate further held that the petitioner should have obtained prior permission from the Police Commissioner before returning to Bombay; without such permission, the externment order would have been rendered ineffective. Additionally, the Magistrate observed that no allegations of mala fides had been made against the police officers who had initiated the proceedings.

The petitioner appealed the conviction to the High Court of Bombay, which, by its judgment dated 5 October 1955, affirmed both the conviction and the sentence. The Division Bench of the High Court rejected the appellant’s contention that the externment order was invalid, again relying principally on its own earlier decision upholding the order’s constitutionality. During the hearing, the appellant sought to rely on a letter purportedly sent to him by the Secretary to the Chief Minister, which purported to grant him permission to return to Bombay to see the Home Secretary. The learned Government Pleader investigated this claim and informed the court that the alleged letter bore no signature of the Secretary to the Chief Minister and, in fact, had never been dispatched. Upon receiving this information, the petitioner's counsel did not pursue the argument that the petitioner had returned with the requisite permission.

The petitioner applied to the Supreme Court for special leave to appeal the judgment of the Bombay High Court rendered in Petition No. 601 of 1955. In his petition one of the grounds advanced was that the High Court ought to have declared the order of externment illegal, thereby rendering the petitioner’s entry into the area lawful. A Constitution Bench of the Supreme Court, by an order dated 21 November 1955, dismissed the petition for special leave. The Court’s statement of the petitioner’s case was therefore concluded at that point. In response to the petition, the first respondent filed a sworn affidavit in this Court, and it is necessary to set out in some detail the facts presented in that affidavit, as they provide the background to the entirety of the proceedings against the petitioner.

The petitioner is described as a native of Balrampur in the District of Gonda, Uttar Pradesh. He passed his school examination in 1940 and entered the Royal Indian Navy in 1942. While serving on the S.S. Talwar in Bombay, he was released from service in 1946. The following year, 1947, he secured a clerkship with the Bombay, Baroda and Central Railway, but was removed from that position in July 1947 after making unfounded allegations against a superior officer. An attempt in 1949 to join the Greater Bombay Police force failed because he was deemed unreliable. In August 1950 he obtained a clerical post in the State Transport Department, only to be dismissed in April 1951. Subsequent to these dismissals he obtained accommodation in Bombay by falsely representing himself as a refugee from Pakistan; this deception led to his prosecution, conviction and a sentence of a fine of Rs 30 or three months’ rigorous imprisonment in default. His appeal against that conviction was rejected by a Division Bench of the Bombay High Court in September 1954. On a similar false pretense he also obtained two shop premises in Bombay from the Custodian of Evacuee Property, which resulted in proceedings for his eviction.

After the series of removals from government employment, the petitioner is said to have presented himself as a social worker, concentrating his activities on the red‑light districts of certain parts of Greater Bombay, which housed more than ten thousand women. Together with associates, he is alleged to have launched a “non‑rent” campaign, employing violence through volunteers described as of disreputable character, including externes, habitual drunkards and persons with prior convictions. Using these associates, he is said to have operated within the red‑light district, extorting money from victims by threats and intimidation, thereby harassing both the inhabitants of the district and those who frequented it. The remainder of the affidavit, comprising twenty‑nine paragraphs, is devoted to denying the petitioner’s contentions that he was the victim of a police conspiracy, that the legal procedure was not observed, or that he was denied a full and fair opportunity to explain his case to the authorities. The affidavit further claims that witnesses who had provided statements to the police against the petitioner were reluctant to appear openly in court, and that some of those witnesses who did appear were induced by the petitioner to alter their original statements made during preliminary inquiries. On these averments the first respondent submitted that the proceedings against the petitioner were regular, complied with the provisions of the applicable Act, and that the petitioner’s contentions possessed no merit. Both petitions were heard together with Petition No. 272 of 1955, which is being disposed of by a separate judgment; that case involved an order passed under section 57 of the Act, with sections 56 to 59 being closely connected, and the common arguments raised were addressed by the Court.

The petitioner contended that he had been the target of a police conspiracy, that the legal procedures prescribed by law had not been observed, and that he had not been given a fair and complete opportunity to explain his case before the authorities. In the affidavit, the petitioner further asserted that the witnesses who had initially given statements to the police against him were reluctant to appear publicly and testify against him, and that some of those witnesses who did present themselves had been persuaded by the petitioner to alter the original statements they had made during the preliminary inquiries. In response to these allegations, the first respondent submitted that the proceedings initiated against the petitioner were regular, that they had been conducted in accordance with the provisions of the Act, and that the petitioner’s contentions lacked merit. The two petitions under consideration were heard together with Petition No. 272 of 1955, which was being decided in a separate judgment. In that earlier case, the order that was challenged had been issued under section 57 of the Act. The Court noted that sections 56 to 59 of the Act are closely connected. It also observed that the common arguments presented to the Court by counsel Purshotham, who questioned the validity of sections 56 to 59, had already been addressed in the judgment on Petition No. 272 of 1955 and therefore did not need to be reiterated. Consequently, the Court confined its discussion to the specific provision that was under challenge in the present two petitions, namely section 56 of the Act, which reads as follows: “Whenever it shall appear in Greater ‘Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section to the District Magistrate, or the Sub‑Divisional Magistrate specially 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 Chapter XII, XVI or XVII of the Indian Penal Code, 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 parts as regards the safety of their person or property, or (c) that an 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 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 by such route.”

The officer, after directing a person to leave a specified area, could also require that the person not re‑enter that area for a period prescribed by the officer. To invoke the provisions of the quoted section, the law required two conditions to be satisfied. First, the Commissioner, District Magistrate or Sub‑Divisional Magistrate, who had been specially empowered by the State Government, needed to be convinced that the conduct of the individual was creating, or was likely to create, alarm, danger or injury to persons or property, or that there were reasonable grounds to believe that the individual was presently engaged or about to engage in an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or was abetting such an offence. Second, the officer had to be of the opinion that witnesses were unwilling to give public testimony against the individual because they feared for their own safety or that of their property. When the officer was satisfied on both of these points, he was authorized to order the individual to remove himself from the jurisdictional limits and to prohibit his return to the area for a period not exceeding two years, as stipulated in section 58. However, before such an order could be issued under section 56, the person against whom the order was to be made had to be afforded an opportunity to explain the allegations, to present any evidence he wished, and to do so after receiving a written notice describing the general nature of the material allegations. The law permitted the person to be represented by an advocate or attorney for the purpose of giving his explanation and submitting evidence. The petitioners did not argue that they had been denied the opportunity prescribed by section 59; instead, they complained that the specific details of the evidence and of their alleged activities had not been disclosed to them. That particular grievance had already been addressed in a separate judgment, and the Court therefore limited its further discussion to the distinct arguments raised by each petitioner in their individual cases. In Petition No. 439 of 1955, it was submitted that the Court had previously stated in Gurbachan Singh v. State of Bombay that “the law is certainly an extraordinary one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence in certain areas constitutes a menace to the safety of the public residing therein.” The phrase “no witnesses” was highlighted by counsel to argue that the provision could not be applied unless every police witness was unwilling to give open‑court evidence.

The Court held that where witnesses refuse to testify in open court, the provisions of section 56 may be employed. It expressed the view that the earlier observations of this Court, quoted from Mukherjea,, had been interpreted too broadly. The learned judge was not intended to declare, and the Court does not read it as having declared, that the provisions of section 56 become unavailable unless every single witness is unwilling to give evidence in open court. The language of section 56, as quoted, does not support such an extreme construction. If the section were read in that rigid manner, it would become almost impossible to apply the provision to any case.

The petitioner further contended that section 56 was meant to refer only to witnesses other than members of the police force and employees or officers of the Customs Department. It was argued that the duty of police officers and Customs employees was to face all danger, appear publicly even against desperate criminals, give testimony in court and submit to cross‑examination. This was described as a standard of perfection that no police officer or Customs employee could realistically achieve. Moreover, the terms of the section do not justify a restricted definition of “witness.” Accordingly, the Court found no basis for the contention that police personnel or Customs officials must always appear in open court and give evidence against criminals or alleged criminals. If the officer concerned is satisfied that witnesses of any description are unwilling to appear publicly, one essential condition for invoking section 56 is satisfied, and it is unnecessary to consider from which class of persons those witnesses might be drawn.

In Petition No. 440 of 1955, the counsel for the petitioner faced a more difficult task because the order under challenge had already been examined in the criminal prosecution against the petitioner by the Presidency Magistrate and by the High Court on appeal, and a petition for special leave to appeal to this Court had been refused. Nevertheless, the petitioner argued that section 56 itself was invalid because it contravened the provisions of article 19 of the Constitution. This argument had already been addressed by this Court in Gurbachan Singh v. State of Bombay, a case cited earlier, where Mukherjea, delivered the judgment after examining the constitutionality of section 27(1) of the City of Bombay Police Act (Bombay Act IV of 1902). The operative words of that provision are almost identical to those of section 56 of the present Act, and therefore a fresh examination of the constitutionality of those provisions was not deemed necessary in the present case.

The Court observed that the language of the provision in the City of Bombay Police Act (Bombay Act IV of 1902) was practically identical to the language of section 56 of the Bombay Police Act. Consequently, the Court held that it was unnecessary to revisit the constitutional validity of those provisions in the present case, because the earlier decision of this Court on the same question had already been relied upon. The Court noted that no attempt had been made in the present proceedings to break the authority of that earlier decision. Shri Dadachanji, appearing for the petitioner, tentatively suggested that the petitioner had been prosecuted under the penal section of the Act even though he had entered Greater Bombay solely to attend to a pending case in which a warrant of arrest had been issued against him. The Court pointed out that this issue was now closed for all courts, including this Court, since the petitioner’s conviction had been affirmed after this Court refused to grant special leave to appeal from the judgment of the Bombay High Court. The petitioner further argued that his conviction for having entered Greater Bombay itself demonstrated the unreasonableness of the restriction and of the law that authorized his externment. The Court, however, explained that if the petitioner had complied with the statutory requirement of obtaining prior permission from the prescribed authority, the prosecution and resulting conviction could have been avoided. Accordingly, the Court found no merit in that contention. On the basis of these considerations, the Court concluded that section 56 of the Act was not unconstitutional and that the orders of externment issued against the petitioners were valid. The applications seeking relief were therefore dismissed.

Justice Jagannadhadas, referring to the earlier judgment of this Court in Gurbachan Singh v. State of Bombay (1) [1952] S.C.R. 737, agreed that the petitions should be dismissed. Nevertheless, he added that, had the matter been considered anew, he would have experienced difficulty in upholding the validity of section 56(b) of the Bombay Police Act 1951 (Bombay Act XXII of 1951) because the provision did not limit its application to the more serious categories of offences specified in the relevant chapters, whether serious by nature or by the circumstances of commission. He also expressed concern about a provision that empowered executive officers to extern a person for a period as long as two years, noting that although the officer possessed the power to cancel the externment at any time, the law did not impose an obligation to review the order at regular intervals, such as every three or six months. These observations underscored the Court’s hesitation to deem such a sweeping power reasonable, even though the binding precedent required acceptance of the validity of section 56 and the consequent orders of externment in the present cases, leading to the dismissal of the petitions.

The Court observed that the power of externment appeared, on its face, to be prima facie unreasonable. It noted that, at first glance, externment might seem less intrusive upon personal liberty than detention, because the individual was not confined within a prison or police lock‑up. However, the Court explained that in practical terms the consequences of externment could be far more damaging to the individual and to his family, especially when the person was the primary earner. An individual who was externed was effectively cast onto the streets of an unfamiliar locality, where he was required to re‑establish his means of livelihood from the beginning. The Court pointed out that the externed person faced the stigma of a “black‑mark” attached to his character, which could hinder his efforts to obtain honest work and might even push him toward criminal activity. By contrast, the Court observed that a person who was detained was normally looked after by the State, which was obligated to provide for his basic needs and, in suitable cases, to extend assistance to his dependents as well. Notwithstanding these considerations, the Court recalled its earlier binding decision on the matter and, pursuant to that precedent, affirmed the validity of section 56 of the Bombay Police Act, 1951, as well as the legality of the specific orders of externment issued under that provision in the two cases before it. Accordingly, the Court dismissed the petition.