Hari Khemu Gawali vs The Deputy Commissioner of Police, Bombay and Another

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

Court: Supreme Court of India

Case Number: Petition No. 272 of 1955

Decision Date: 08/05/1956

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

In the matter titled Hari Khemu Gawali versus The Deputy Commissioner of Police, Bombay and another, the Supreme Court delivered its judgment on 8 May 1956. The opinion was authored by Justice Bhuvneshwar P. Sinha and the bench comprised Justice B. Jagannadhadas and Justice Syed Jaffer Imam, with Justice Mukherjee, B. Iyan, and Justice T.L. Venkatarama Imam listed as additional members. The case is reported in 1956 AIR 559 and 1956 SCR 506. The petitioners challenged an order made under section 57 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951), contending that the provision violated Article 19(1)(d) and (e) of the Constitution of India, as well as clause (5) which permits reasonable restrictions on the right to move freely and reside anywhere in the territory of India. Section 57 authorises the Commissioner, the District Magistrate or any Sub‑Divisional Magistrate specially empowered by the State Government to direct a person who has been convicted of certain specified offences to remove himself from the local limits of the officer’s jurisdiction, to travel by a prescribed route within a prescribed time, and to refrain from returning to that area. The petitioner, Hari Khemu Gawali, argued that the order of externment issued against him was based on vague allegations and inadmissible material, and that the statutory provision imposed an unreasonable restriction on his fundamental rights of free movement and residence.

The Court held that section 57 of the Bombay Police Act, 1951 was not unconstitutional because it represents a preventive measure taken by the State in the interest of public safety and to safeguard the rights of the community by preventing a person who has already been proven to be a criminal from repeating similar conduct. The restrictions imposed on the petitioner’s right to reside and move freely were deemed reasonable within the meaning of clause (5) of Article 19. The Court further observed that the provision does not compel a person to remove himself from the entire State of Bombay; rather, the order may direct removal only from the specific local limits of the officer’s jurisdiction, unless the individual’s conduct makes his presence a menace to public peace throughout the State. The Court rejected the argument that the legislation would be invalid in the absence of an Advisory Board to scrutinise the material on which the order is based, stating that such a universal requirement is not necessary. Moreover, the Court found that sections 55, 56, 57 and 59 of the Act were not invalid merely because the material allegations required disclosure in general terms and because the petitioner might face difficulty in obtaining judicial review; these provisions are intended for special cases that cannot be dealt with under the preventive sections of the Code of Criminal Procedure. The judgment was delivered by a majority comprising Justices S. R. Das C.J., Venkatarama Ayyar, B. P. Sinha and Jaffer Imam, with Justice Jagannadhadas dissenting.

In the Court’s analysis it was observed that the authority of a district could not be expected to treat a person in the same manner throughout the entire State unless the individual made himself so troublesome that his presence anywhere in the State became a threat to public peace and safety. The Court explained that, absent such a manifest menace, each district authority would be unlikely to impose the same restrictions on the same person across the whole of the State. The Court then addressed the question of whether a constitutional requirement existed for an Advisory Board to review the material on which the officers or authority, acting under section 57, had taken action against a person. It held that it could not be declared a universal rule that the absence of a provision for such a Board would automatically render the legislation unconstitutional. The judgment further considered the provisions contained in sections 55, 56, 57 and 59 of the Act. It concluded that these sections were not invalid merely because only the general nature of the allegations against a person who had been externed needed to be disclosed, nor because the claimant might find it difficult to obtain a judicial review. The Court stressed that these provisions were meant for special cases that required special treatment—cases that could not be dealt with under the preventive sections of the Code of Criminal Procedure.

The Court went on to say that the legality of an externment order could not be challenged on the ground that there was insufficient evidence to substantiate the charge against the petitioner. It held that such matters were not suitable for an objective examination by this Court because the legislature had expressly provided that the authorities or officers charged with enforcing the special provisions of the Act were to act on a subjective satisfaction. In support of this position the Court referred to the decision in Gurbachan Singh v. The State of Bombay ([1952] S.C.R. 737) and indicated that the same principle was to be followed.

In a separate dissenting opinion, Jagannadhas J. argued that section 57 of the Act was constitutionally invalid. He contended that clause (a) of section 57 was not limited to offences of a serious nature or to the specific circumstances mentioned in the relevant chapters, and therefore the restriction could not be regarded as reasonable. He further asserted that merely relying on a prior commission of an offence of the specified category, without consideration of the time elapsed, surrounding environment or other relevant factors, bore no rational relation to the requirement of reasonableness in the public interest. Additionally, Jagannadhas J. observed that the power could be exercised without regard to the non‑availability of witnesses, which he also found to be irrational in relation to the standard of reasonableness. He distinguished the earlier decision in Gurbachan Singh v. The State of Bombay ([1952] S.C.R. 737) on these grounds.

The judgment recorded that the case was an original jurisdiction petition, numbered 272 of 1955, filed under article 32 of the Constitution of India for the enforcement of fundamental rights. The petitioners were represented by counsel, while the respondents were represented by the Attorney‑General for India and other counsel. The judgment dated 8 May 1956 noted that the opinion of Chief Justice S. R. Das, together with Justices Venkatarama Ayyar, B. P. Sinha and Jafer Imam, had been delivered by Justice Sinha, and that Justice Jagannadhas had delivered a separate dissenting judgment.

The petition challenged the constitutionality of the Bombay Police Act of 1951, hereinafter referred to as “the Act,” specifically focusing on the provisions of section 57 under which an externment order dated 8 November 1954 had been issued against the petitioner by the first respondent, the Deputy Commissioner of Police, Crime Branch (1), C.I.D., Greater Bombay. The second respondent was the State of Bombay. The petitioner asserted that he was a citizen of India, born in Bombay, and at the time of the questioned externment order he was residing in one of the city’s designated quarters. He earned his livelihood by operating bullock‑carts for transport and by keeping cows for the sale of milk. He claimed that the Prohibition Police of the city had instituted twelve prohibition cases against him, each of which had ultimately resulted in either his discharge or acquittal. An earlier externment order had been passed against him in August 1950; that order was set aside by the Government in December 1950 after the petitioner appealed. In December 1953, a detention order under the Preventive Detention Act, 1950, was issued against him and he was confined in Thana District prison. He subsequently filed a petition under article 226 of the Constitution in the Bombay High Court challenging the detention order, but he was released from custody before the High Court could hear his petition. After his release, the petitioner, together with others, was charged with possession of liquor. The proceedings in that case continued for approximately two years, and the petitioner was finally discharged by the Presidency Magistrate on 24 February 1955 because the prosecution witnesses were absent on the date fixed for hearing. On the night of 9 October 1954, shortly after midnight, the petitioner was arrested along with his companions by members of a police unit known as the “Ghost Squad,” which was a special wing of the Crime Branch of the C.I.D. The police alleged that the men had fled on seeing a police van, were pursued, apprehended, and were found in possession of knives and other weapons. In October 1954 the petitioner was served with a notice under section 57 read with section 59 of the Act. The notice, reproduced in full as Exhibit A to the petition, identified the petitioner as Hari alias Dada Khemu Gawali, a Hindu male of approximately thirty‑seven years, a bullock‑cart owner residing in Room 45, first floor, Haji Kassam Chawl, Lamington Road. The notice informed him that allegations were being made against him in proceedings under section 57, and that he was required to appear at 11 a.m. on 25‑October‑1954 to give his explanation and to present any witnesses. He was also directed to furnish a bond of Rs. 500 with a surety of the same amount for his attendance at the inquiry, and was warned that failure to appear or furnish the bond would result in the inquiry proceeding in his absence.

The Superintendent, N. P. Paranjapye of the Crime Branch, C.I.D., instructed the petitioner to present his explanation and, if he wished, his witnesses concerning the allegations set out in the notice. He directed that the petitioner appear before him at H. P. 0. Annexe I (place) on 25‑10‑1954 at 11 a.m., and that he execute a bond of Rs 500 with a surety for an equal amount to guarantee his presence during the inquiry. The Superintendent warned that if the petitioner failed to appear or to furnish the bond, the inquiry would be conducted in his absence. The notice then listed the specific allegations against the petitioner. First, it alleged that he had been convicted of an offence, and it provided the following particulars: the case was tried before H. C. on 14‑10‑1938, recorded under reference 304/109, resulting in a six‑year imprisonment; the conviction arose from a case registered at Nagpada Police Station, Bombay, and the relevant criminal‑procedure references were cited. Second, it alleged that on 29‑3‑1948 the petitioner was arrested in connection with Nagpada P.S.C.R. No. 273 of 1948, charged under sections 143, 147, 148, 149 and 353 of the Indian Penal Code for rioting and criminal assault on a police constable (No. 4459/D) in an attempt to hinder the constable’s lawful duties; the petitioner was subsequently discharged for insufficient evidence. Third, it alleged that on 2‑5‑1948 the petitioner was again arrested, this time in relation to Nagpada P.S.C.R. No. 353, accused under sections 143, 144, 146, 147, 148, 149 and 324 of the Indian Penal Code for participating in a riot armed with lathis and soda‑water bottles, which caused injury to Gopal Khemu Gawli; he was again discharged for lack of sufficient evidence. Fourth, it alleged that on 3‑6‑1949 he was arrested in connection with Nagpada P.S.C.R. No. 336 of 1949, charged under sections 143, 147, 149, 225, 225‑B and 332 of the Indian Penal Code for rioting, assaulting a police officer (Shri S. K. Kothare) to prevent the officer from performing his duties, and for facilitating the escape of three persons in police custody; this case also resulted in his discharge due to insufficient evidence. Fifth, it alleged that on 9‑10‑1954 at approximately 12:50 a.m. the petitioner was arrested together with seven other individuals—namely Amir Masud, Francis Sherao & China, Antoo Narayan, Abdul Wahab Abdul Gafoor, Laxman Rama, Narayan Tukaram and Rajaram Vishnoo—of whom the first and sixth persons were previous convicts, and that at the time of arrest the petitioner and the persons numbered one, two, three and four were armed with deadly weapons such as clasp knives, an iron bar and a lathi, giving reasonable cause to suspect that they intended to commit an offence.

In the report the Superintendent of Police, Crime Branch (I), C.I.D., N. P. Paranjapye, recorded that the petitioner had earlier committed an offence against property or a person and that he was likely to repeat a similar offence falling within Chapter XVI or Chapter XVII of the Indian Penal Code. The petitioner appeared before the Superintendent on 8 November 1954, accompanied by counsel, and filed a lengthy petition, identified as Exhibit B, which contained sixteen paragraphs articulating his objections to the proposed order of externment. In his petition the petitioner admitted the correctness of the allegation set out in the first paragraph of Exhibit A, which related to his earlier conviction, but he rejected the remaining allegations, describing them as based on “old prejudice and suspicion.” Regarding the conviction mentioned in the first paragraph, the petitioner explained that he had been convicted in 1938 when he was a mere youth and asserted that, since that time, he had led a clean and honourable life. He further asserted that in the other cases in which he had been charged he had been discharged for lack of sufficient evidence. The first respondent eventually issued the order of externment, recorded as Exhibit C, on 8 November 1954. In that order the respondent recalled the petitioner’s prior conviction for offences under Chapter XVI of the Indian Penal Code, noted the belief that the petitioner might again engage in similar offences, and expressed satisfaction with the matters mentioned in the earlier notice. Accordingly, relying on section 57 of the Act, the respondent directed the petitioner to remove himself from the limits of Greater Bombay within two days of the date of the final order in the pending case and to remain outside that area for two years, prohibiting his re‑entry without written permission from either the Commissioner of Police, Greater Bombay, or the Government of Bombay. The petitioner challenged the externment order by filing an appeal to the Government of Bombay; the appellate authority dismissed the appeal. On the basis of the same allegations, the petitioner sought relief under article 32 of the Constitution, bringing the matter before this Court. The first respondent swore an affidavit before this Court, stating that the petitioner had been afforded a full hearing before the impugned order was made. The affidavit further asserted that in the earlier case for which the petitioner had been convicted, he and his brother Rajaram had been found guilty of causing the death of a person who had testified against them in a prior trial. Finally, the respondent affirmed that, after examining the material before him, he found that since 1948 the petitioner had repeatedly resorted to violent conduct.

In the record the authorities noted that the petitioner had repeatedly been implicated in violent incidents spanning several years, beginning with an assault on a police constable in March 1948. Although the petitioner was identified as one of the individuals present at the scene, the police did not file a charge‑sheet against him because the evidential material available at that time was insufficient to sustain a prosecution.

The next incident occurred in April 1948 when the petitioner’s brother, along with eight other persons, was accused of hurling soda‑water bottles and brandishing lathis. The case was presented before the Presidency Magistrate, 17th Court, Mazgaon, Bombay, and the magistrate was obliged to grant several adjournments in order to secure the testimony of witnesses who, however, remained absent. Eventually the magistrate declined to allow any further postponement for the production of those witnesses, and, finding that the prosecution had failed to produce any admissible evidence, ordered a discharge of the accused for want of proof.

In May 1949 the police arrested three persons, including the petitioner’s brother Rajaram, on suspicion of involvement in the illicit liquor trade. While the arrested individuals were being transferred in a police lorry to the police station, the petitioner together with several other persons intervened and forcibly rescued the detainees from police custody. The case that arose from this rescue operation was later dismissed in August 1950 because the prosecution’s witnesses failed to appear in court, thereby leaving the prosecution without any evidence to sustain the charges against the petitioner and the others.

The fourth episode recorded by the authorities took place at approximately 12.50 a.m. on 9 October 1954. On that night the Special Squad of the Crime Branch, C.I.D., Bombay, observed the petitioner together with seven other men, each armed with an iron bar and a lathi, as they were moving about the locality. Upon noticing the police van, the group attempted to flee; the police pursued them, arrested them, and upon search discovered that the petitioner and three of his associates were also carrying “clasp knives” and that the petitioner, along with three others, reeked of alcohol. The petitioner was consequently placed on trial on charges under the Bombay Prohibition Act and the Bombay Police Act. The trial judge, however, acquitted him on the ground that there were significant discrepancies in the testimony of several prosecution witnesses, which rendered the evidence unreliable.

Having examined all of the material presented against the petitioner, and taking into account his earlier conviction under sections 304/109 and 324/109 of the Indian Penal Code, the respondent concluded that the petitioner remained likely to repeat offenses similar to those for which he had previously been convicted. On that basis the respondent issued an order of externment against the petitioner, the terms of which were set out in the earlier part of this judgment.

In response to the order, the petitioner filed a petition that was heard together with Petitions Nos. 439 and 440 of 1955, wherein orders had been passed under section 56 of the Act and were being dealt with in a separate judgment. The leading counsel for the petitioner, Shri Purshotham, advanced two principal contentions. First, he argued that section 57 of the Act infringed clauses (d) and (e) of article 19(1) of the Constitution because it imposed unreasonable restrictions on the petitioner’s fundamental rights to free movement and residence. Second, he contended that the order issued under section 57 was illegal because it was founded upon vague allegations and on material that was inadmissible, such as statements based on orders of discharge or acquittal, thereby rendering the order arbitrary and unsupported by proper evidence.

In the petition the two principal grounds of challenge were set out and each ground was developed with several sub‑points. The first ground argued that the police had been given unlimited authority because any person who attracted the police’s suspicion or against whom the police had any reason to act could be ordered to leave not only a specific locality such as Greater Bombay but potentially the whole State of Bombay. The petitioners further contended that even when a single order did not require the person to leave the entire State, every police authority within its own local jurisdiction could issue a separate order demanding that the same individual vacate its area, thereby leaving the person completely displaced with no place to reside. Unlike preventive detention statutes, the Act contained no provision for an Advisory Board that could examine the reasonableness of an order either before it was made or after it had been executed, and consequently there was no institutional check on the exercise of police power, however egregious the abuse might be. The second ground maintained that the procedural safeguards provided by the Act – namely the hearing before the police authority and the right of appeal to the State Government – were illusory. The petitioners pointed out that the police acted both as prosecutor and adjudicator, rendering the remedial scheme a mere formality. They also observed that the Act grouped together offences of diverse nature without any rational connection. To support these contentions the petitioners relied on observations of this Court in several earlier decisions, namely Chintaman Rao v. The State of Madhya Pradesh (1) [1902] S.C.R. 759; The State of Madras v. V. G. Row (2) [1952] S.C.R. 597; Thakur Raghubir Singh v. Court of Wards, Ajmer (3) [1953] S.C.R. 1049; Messrs Dwarka Prasad Laxmi Narain v. State of U. P. (4) [1954] S.C.R. 803; and Ebrahim Vazir Mavat v. State of Bombay (5) [1954] S.C.R. 983. The specific provision that was challenged, Section 57 of the Act, reads as follows: “Removal of persons convicted of certain offences. If a person has been convicted— (a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or (b) twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or (c) thrice of an offence within a period of three years under section 4 or 12‑A of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub‑Divisional Magistrate specially 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 …”

Section 57 empowered a designated officer, such as the Commissioner, a District Magistrate or a Sub‑Divisional Magistrate specially authorized by the State Government, to require a person who had been convicted of certain offences to leave the local limits of that officer’s jurisdiction. The officer could prescribe the route to be taken and the time within which the removal must be effected, and the order expressly prohibited the person from entering or returning to the area from which he had been directed to remove himself. The provision was supplemented by an explanation that clarified the meaning of the phrase “offence similar to that for which a person was convicted.” The explanation stipulated that, in the case of a person convicted under clause (a), “similar offence” meant any offence falling within any of the Chapters of the Indian Penal Code referred to in that clause; and, in the cases of convictions under clauses (b) and (c), it meant any offence falling under the provisions of the Acts mentioned respectively in those clauses. The Court observed that two essential conditions must be satisfied for the section to operate. First, there must have been a previous conviction that falls within the categories specified: either a conviction under Chapter XII, XVI or XVII of the Indian Penal Code, or two convictions under the offences listed in clause (b), or three convictions within a period of three years under the offences listed in clause (c). Second, the authority empowered by the section must have reason to believe that the individual is likely to engage again in the commission of an offence similar to the one for which he was previously convicted. In applying this test, the Court noted that the statute mechanically equated a prior conviction for “offences relating to coin and Government stamps” with offences that affect the human body (Chapter XVI) or offences against property (Chapter XVII). Chapter XII of the Indian Penal Code comprises sections 230 to 263(A); Chapter XVI comprises sections 299 to 377; and Chapter XVII comprises sections 378 to 462. Consequently, a person convicted of counterfeiting coins could, under the language of Section 57, be said to be likely to commit offences such as the use of criminal force, theft, extortion, robbery, dacoity, criminal misappropriation of property or criminal breach of trust. The petitioner correctly emphasized that the range of offences covered by clause (a) is extremely broad and that it is difficult to discern a rational basis for grouping such disparate offences together. While a conviction for counterfeiting Indian coin or Government stamps identifies the individual as an enemy of public finance and revenue, that individual is fundamentally different from a person convicted of murder or other offences against the human body or private property. The Court therefore recognized the need to examine whether such a wide classification impinges upon the constitutional guarantee of liberty.

The Court observed that the legislature, exercising its wisdom, has chosen to group together a variety of offences under a single provision and that it is not the function of the judiciary to question that legislative judgment so long as the statutory measures do not impose unreasonable constraints on the Constitutionally guaranteed freedom of movement and residence. In the present context, convictions under the Bombay Beggars Act and the Bombay Prevention of Prostitution Act have been placed together under clause (b), while earlier convictions under the Bombay Prevention of Gambling Act and the Bombay Prohibition Act have been grouped separately. Consequently, the earlier convictions falling within the three specified clauses have been classified into three distinct categories. Article 19 of the Constitution guarantees a number of freedoms to every citizen of India. After delineating the substantive freedoms in clause (1), clauses (2) to (6) empower the State to enact reasonable restrictions on those freedoms in the interest of the general public, the security of the State, public order, decency or morality, and for other purposes enumerated in those sub‑clauses. The Court stressed that a balance must be struck between the individual rights affirmed in Article 19(1) and the exigencies of the State, which acts as custodian of public order, morality and broader social welfare. At times, in order to prevent a breach of public peace or an invasion of private rights, the State must impose certain limitations on individual liberties. This duty encompasses not only punishing offenders under penal law but also taking preventive action, a principle summarized by the maxim “prevention is better than cure,” applicable both to individuals and to State action toward its citizens.

The Court further explained that the challenged section 57 represents a preventive measure adopted by the State in the public interest and to protect individual rights. The provision is expressly intended to stop a person who has already been proven criminal from engaging in conduct that may repeat his criminal tendencies. In order to achieve this preventive objective, the State may need to restrict that individual’s activities and impose constraints on his freedom of movement and residence, thereby ensuring that the greatest good of the greatest number is preserved. The law is founded on the principle that it is desirable, for the larger interests of society, to limit the freedom of movement and residence of a comparatively small number of individuals so that the majority of the community can live, travel, and pursue peaceful occupations without fear or threat of violence to person or property. Accordingly, the individual’s constitutional right to reside and move freely throughout the territory of India must yield to the broader community interest. The Court held that the Act rests on a sound principle that cannot be denied. The remaining issue, therefore, is whether the provisions of section 57 are justified in the larger public interest or whether they impose a restriction that exceeds what is reasonably necessary to address the situation contemplated by the provision.

The Court considered whether the questioned provision was justified by the larger interest of the community, or, in other words, whether it imposed a restriction that was greater than what was reasonably necessary to address the situation contemplated by the provision. From that perspective, the Court proceeded to examine the additional arguments raised to demonstrate that the provision placed an unreasonable limitation on an individual’s right to reside in and move freely throughout India. The Court recalled its earlier observation in Gurbachan Singh v. The State of Bombay, reported in 1952 at page 742, where Mukherjea, J., then said: “It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in article 19(1)(d) of the Constitution are reasonable or not within the meaning of clause (5) of the article would depend as much upon the procedural part of the law as upon its substantive part; and the court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed.” In the present matter, the challenge to section 57 of the Act is directed at both its procedural aspects and its substantive content. The contention advanced is that a person affected by section 57 could be ordered to remove himself entirely from the limits of the State of Bombay because the Act is applicable to the whole of the State.

The Court explained that section 57 may be enforced either by the Commissioner of Police for Greater Bombay and other areas where a Commissioner may be appointed under section 7, or by a District Magistrate or a Sub‑Divisional Magistrate who has been specially empowered by the State Government for that purpose. Each of these authorities possesses the power to direct an individual covered by section 57 to remove himself from the area that falls within the local limits of that authority’s jurisdiction. Consequently, none of these authorities has the power to compel a person to leave the entire State of Bombay. The Court further noted that the scenario in which a person is required to remove himself from the whole State would not ordinarily arise, because the objective underlying sections 55 to 57 is the “dispersal of gangs and removal of persons convicted of certain offences,” as indicated by the sub‑heading II in chapter V, titled “special measures for maintenance of public order and safety of State.” A criminal gang or a group of potential offenders typically operates within a confined locality, and section 57 is intended to ensure that an individual with a prior conviction who may have joined such a group is disbanded and driven out of the area of his ordinary activities and his associates, thereby breaking up the gang and reducing its criminal influence.

The Court observed that the purpose of the provisions is to break up a criminal gang by dispersing its members to various parts of the State, thereby minimizing their illegal activities. It further explained that unless an individual makes his conduct so intolerable as to constitute a threat to public peace and safety throughout the entire State of Bombay, neither a Commissioner of Police nor a district magistrate or sub‑divisional magistrate would ordinarily consider taking the same extreme step against that same individual on repeated occasions. Consequently, the Court found the argument presented by the petitioner to be without merit. In addition, the Court noted that before the enactment of the impugned Act, the Bombay District Police Act of 1890 governed the whole Presidency of Bombay, excluding Greater Bombay, while the City of Bombay Police Act of 1902 applied to the City of Bombay and, in certain sections, to the entire Presidency. Together, these two statutes covered the whole of the State of Bombay as it existed after Independence. Both statutes were later repealed by the impugned legislation, which was intended to consolidate the law relating to the regulation of the police force in the State of Bombay. The preamble of the new Act expressly stated that it was expedient to amalgamate the District and Greater Bombay police forces into a single common police force and to introduce uniform methods of working and control throughout the State. The Court pointed out that, in broad terms, section 46 of the 1890 Act and section 27 of the 1902 Act correspond to the present provisions of sections 56 and 57 of the new Act. The petitioner also contended that, unlike preventive‑detention statutes, the impugned law did not provide for an Advisory Board to examine the material on which an officer or authority acted under section 57. The Court rejected the proposition that the absence of an Advisory Board automatically renders a statute unconstitutional. It observed that article 22(4) of the Constitution specifically mandates an Advisory Board for preventive‑detention legislation, whereas article 19 contains no analogous requirement, thereby countering the petitioner’s contentions. In support of this view, the Court referred to its earlier decision in N. B. Khare v. State of Delhi, which dealt with the constitutionality of the East Punjab Public Safety Act of 1949. That legislation provided for an Advisory Board whose opinion was not binding, yet the Act was upheld. By contrast, the Court also cited the decision in State of Madras v. V. G. Row, where a provision for a binding Advisory Board did not save a statute that imposed unreasonable restrictions on the fundamental right to form associations. These authorities demonstrate that the presence of an Advisory Board is not an essential condition for the constitutionality of a law such as the one before the Court. Finally, the petitioner argued that the police initiate the proceedings and effectively act as the judge, thereby violating the principle of natural justice that the prosecutor should not also be the judge. The Court indicated that, to assess this argument, reference must be made to the relevant statutory provisions, a point it was prepared to address further.

The Court observed that in the case State of Madras v. V. G. Row, reported in (1) [1950] S.C.R. 519, section 15(2)(b) of the Indian Criminal Law (Amendment) Act, 1908, was examined. The provision had been further amended by the Indian Criminal Law Amendment (Madras) Act, 1950. The Court held it unconstitutional because the restrictions on the fundamental right to form associations were unreasonable, even though a binding Advisory Board was provided. Consequently, the Court concluded that the mere existence of an Advisory Board could not be considered a sine qua non for the constitutionality of legislation such as the one under consideration. The Court then addressed the argument that police officers both initiated the proceedings and acted as judges. It was argued that this arrangement violated the natural‑justice principle that a prosecutor should not also serve as the judge. To evaluate this contention, reference had to be made to section 59 of the Act, which lays down procedural safeguards before action is taken under sections 55, 56, or 57. Section 59 requires that, before any order under those sections, the authority or an officer of rank above Inspector must inform the person concerned, in writing, of the general nature of the material allegations. The purpose of this requirement was to give the individual a reasonable opportunity to explain his conduct. If the person wished to examine any witnesses, he must be given an opportunity to adduce evidence. The person also had the right to file a written statement and to appear before the authority through an advocate or attorney for the purpose of tendering his explanation and adducing evidence. If the person failed to appear or to adduce evidence, the authority or officer was permitted to continue the enquiry and to pass such order as it deemed fit and proper. Consequently, the Court held that the criticism of the procedure prescribed in section 59 was not entirely correct. The Court noted that the evidence or material on which a proceeding under sections 55, 56, or 57 could be based might have been gathered by police officers of the rank of Inspector. It could also have been collected by officers of lower rank, as referred to in the citation (1) (1952] S.C.R. 597. The proceedings may be initiated by a police officer above the rank of Inspector who has to inform the person proceeded against of the general nature of the material allegations against him. However, the order of externment could be passed only by a Commissioner of Police, a District Magistrate, or a Sub‑Divisional Magistrate specially empowered by the State Government for that purpose. Therefore, the satisfaction required for the order was not that of a prosecuting authority, if such a term could be applied to the context of those sections.

In this case, the Court explained that the individual against whom the order is made is not subjected to a criminal prosecution but is instead placed outside the danger that might arise from his presence. The legislature deliberately assigned to officers of relatively higher rank within the police or the magistracy the important duty of reviewing the material and being convinced that the individual is likely to again engage in conduct similar to the offence for which he was previously convicted. The proceedings contemplated by the challenged provision, section 57, and also by the two related provisions, sections 55 and 56, are not criminal prosecutions nor are they judicial trials, although the officer or authority charged with the responsibility must examine the information presented to him by the police. The police force, according to the judgment, bears a dual responsibility: first, to detect offences and to bring offenders before the law, and second, to prevent the commission of offences by persons who have prior convictions or who display criminal tendencies. The Court quoted the observations of Patanjali Sastri, C.J., in State of Madras v. V. G. Row, noting that “externment of individuals, like preventive detention, is largely precautionary and based on suspicion.” The Court added further remarks from the same judge, referring to Lord Finlay’s comments in Rex v. Halliday, that “the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.” From these authorities, the Court concluded that when preventive action is to be taken under section 57 of the Act, the legislature has entrusted senior police officers or magistrates with the task of examining the facts and circumstances of each case that is forwarded to them by the Criminal Investigation Department. At the same time, the legislature incorporated safeguards intended to prevent the issuance of arbitrary or wholly unfounded orders by those higher‑ranking police officials or magistrates. The Court addressed the argument that the provisions concerning the hearing of any evidence that may be produced by the police or by the person against whom the order is made, as well as the right of appeal to the State Government under section 60, are illusory. The Court rejected that view, stating that the right of appeal to the State Government granted to the individual affected by an order under section 57 cannot be considered illusory because the State Government is charged with reviewing the material and must be satisfied that conditions exist which justify such a preventive order, and it is expected to perform this function with due care and caution. Finally, the Court noted that section 61 adds an additional safeguard for a person dealt with under section 57 by providing that, although an order made under sections 55, 56 or 57, or an order made by the State Government on appeal under section 60, shall not be questioned in any court, the person may still challenge the order in a court on the ground (1) that the

The Court observed that a person who wishes to challenge an order made under section 57 may contend that the authority issuing the order, or any officer authorized by that authority, failed to follow the procedure prescribed in section 57. The challenged party may also argue that the authority had no material before it on which to base the order, or that the authority was of the opinion that witnesses were unwilling to appear in public to give evidence against the person proceeded against. In response, counsel for the petitioner argued that section 59 only requires disclosure of the general nature of the material allegations against the externed person, and because the statute does not obligate the authority to provide detailed particulars, it would be difficult for the externed person to rely on the second ground in section 61 that permits judicial review of the order. The Court noted that, given the purpose of the legislation, this situation could not have been otherwise. The grounds available to a person who is externally proceeded against are necessarily narrow, because if evidence appropriate for public adduction were available, the person could be dealt with under the preventive provisions of the Code of Criminal Procedure, for example under section 107 or section 110. The special provisions now under scrutiny therefore operate on the premise that a person dealt with under sections 55, 56 or 57 possesses a character that does not allow the ordinary criminal process—specifically, the examination of witnesses in open court and cross‑examination by the opposing party—to be applied. The Court emphasized that these provisions are intended for special cases that require special treatment and that cannot be handled through the ordinary preventive sections of the Code of Criminal Procedure.

The Court further explained that the provisions being examined are designed for situations where ordinary law cannot be invoked. Counsel for the petitioner relied upon several decisions of this Court to argue that the terms of section 57 exceed the limits set by clause 5 of article 19 of the Constitution. The Court cautioned that analogical arguments may be misleading, observing that it is unsafe to decide on the provisions of one Act by referring to decisions concerning other Acts that are not on the same subject matter. The Court identified the decision in Gurbachan Singh v. State of Bombay, where section 27(1) of the City of Bombay Police Act was upheld, as the nearest precedent. In contrast, the Court noted that section 57, as challenged, actually provides a more secure basis for proceeding against a potential criminal because it requires at least one prior conviction. Moreover, clauses (b) and (c) of the section demand more than one prior order of conviction against the person proceeded against, demonstrating that the legislature intended a higher threshold of suspicion before invoking these special preventive powers.

The Court observed that the authority dealing with such a person had a reasonable basis for suspecting that he might repeat his criminal conduct. It was noted that none of the parties had challenged the correctness of the earlier decision of this Court that had been cited, nor had they argued that that decision was open to attack. Consequently, the Court deemed it unnecessary to examine in detail the additional authorities relied upon by the petitioner. The remaining issue was the legality of the order itself. The Court pointed out that the good faith of the order had not been called into question. The petitioner’s contention was that the impugned order was founded on earlier orders of discharge or acquittal, which, according to the petitioner, had been made because insufficient evidence existed to secure a conviction. The Court recognized that such insufficiency could have arisen from the unavailability of witnesses for open‑court testimony or from witnesses being intimidated or having their statements tampered with. The Court held that these matters could not be objectively examined by the judiciary, since the legislature had entrusted the relevant authorities and officers with the power to act on a subjective satisfaction when enforcing the special provisions of the Act. The Court further stated that it could not be proclaimed as a general rule of law that a prior discharge or acquittal must be ignored by those authorities when they deal with persons under any of the provisions under consideration. It was not the Court’s role to re‑examine the material afresh and determine the correctness of the impugned order. However, the affidavit sworn by the officer who had issued the order, which formed part of the record, demonstrated at least that the petitioner had not been subjected to an arbitrary order. For these reasons, the Court concluded that no grounds existed for granting any writ or direction against the authorities concerned, nor for setting aside the orders that were challenged. Accordingly, the application was dismissed.

Justice Jagannadhadas expressed a dissenting view, stating that he could not be persuaded to agree with the majority’s finding on the constitutional validity of section 57(a) of the Bombay Police Act, 1951 (referred to as the Act). He observed that the provision, on its face, infringed the fundamental rights guaranteed to a citizen under article 19(1)(d) and (e) of the Constitution. According to him, such a provision could be upheld only if, after considering all the circumstances, it could be satisfactorily concluded that the restriction it imposed served the public interest and was reasonable. He noted that although the Constitution itself authorises preventive detention laws with limited safeguards, and that such laws have traditionally been accepted despite being based on the subjective satisfaction of executive officers, preventive detention occupies a special position in the Constitution. The Constitution permits other restrictions on personal liberty to be judged by courts against standards of reasonableness and public interest, and he implied that the stringent criteria applicable to preventive detention should likewise be applied to assess the validity of section 57(a).

In this case, the Court observed that the Government’s habit of exercising power for specific purposes on the basis of a subjective judgment often leads the Court to accept other restrictive statutes that affect personal liberty, provided those statutes incorporate certain essential safeguards. The essential safeguards identified by the Court are the requirement that the authority must give the affected person the grounds for the restriction, afford the person a right to be heard, and allow the decision to be reviewed either by a higher authority or by an advisory body. The Court noted that if one treats these safeguards as the decisive condition for a law that restricts personal liberty to be reasonable, then the provision under challenge could be said to meet that condition. However, the Court emphasised that preventive detention occupies a uniquely exceptional position in the Constitution because the Constitution itself expressly provides for it, whereas other forms of restriction on liberty are left to be assessed by the courts according to standards of reasonableness and the public interest. Although the three safeguards mentioned are certainly a minimum requirement for reasonableness, the Court declined to accept that they are automatically sufficient. It was held that laws imposing preventive restrictions, as distinct from preventive detention, must be evaluated by the same standards that the Court has consistently applied to restrictions on the other freedoms guaranteed by article 19(1) of the Constitution. The Court reiterated that a proper balance must be struck between the individual’s fundamental rights and the State’s need for social control, and that this balance determines the permissible scope of any restriction. The Court also recognised that the ordinary provisions of the Criminal Procedure Code, which enable the executive to take preventive measures, are often found lacking, especially in large urban areas where crowds are dense. Consequently, the Court concluded that empowering executive officers to take preventive action against the commission of offences is not, in itself, unreasonable.

Turning to the specific statutory provision, the Court explained that section 57 of the Bombay Police Act, 1951, is placed in Chapter V, which deals with “Special measures for maintenance of public order and safety of State.” This chapter contains a sub‑head entitled “Dispersal of gangs and removal of persons convicted of certain offences,” under which sections 55, 56 and 57 are grouped. Section 55 authorises the control and dispersal of gangs, section 56 authorises the removal of persons who are about to commit offences, and section 57 authorises the removal of persons who have previously been convicted of certain offences. The Court then reproduced the language of sections 56 and 57. Section 56 states that whenever it appears in Greater Bombay or any other area where a Commissioner has been appointed under section 7, or in any area to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, the power may be exercised by the District Magistrate or the Sub‑Divisional Magistrate specially empowered by the State Government. The section provides three situations in which such power may be used: (a) when the movements of any person are causing or are calculated to cause alarm, danger or harm to persons or property; (b) when there are reasonable grounds to believe that the person is engaged or is about to engage in the commission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of such offences, and when witnesses are unwilling to give public testimony because of fear for their safety; and (c) when the continued residence of an immigrant is likely to cause an outbreak of epidemic disease. The Court cited this language to illustrate the breadth of the powers conferred by the statute.

Section 56 may be extended, by a notification in the Official Gazette, from the Commissioner of Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the District Magistrate or to a Sub‑Divisional Magistrate specially empowered by the State Government. The extension may be made where the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to persons or property, or where there are reasonable grounds for believing that the 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. The officer may also act where witnesses are unwilling to give evidence in public because they fear for their own safety or the safety of their property. A further ground for action is the likelihood of an outbreak of epidemic disease resulting from the continued residence of an immigrant. When any of these conditions exist, the empowered officer may, by a written order duly served on the person or by a beat of drum or by any other means the officer thinks fit, direct that person or immigrant conduct himself in such a manner as is necessary to prevent violence, alarm, or the spread of disease. The order may require the person to remove himself from the area within the local limits of the officer’s jurisdiction, to travel by a route and within a time prescribed by the officer, and to refrain from entering or returning to the area from which he was directed to remove himself.

Section 57 deals with persons who have previously been convicted. If a person has been convicted of (a) an offence under Chapter XII, XVI or XVII of the Indian Penal Code; (b) twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923; or (c) three times within a period of three years of an offence under section 4 or 12‑4 of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, then the Commissioner, the District Magistrate or a Sub‑Divisional Magistrate specially empowered by the State Government may, if he has reason to believe that the person is likely to again engage in the commission of an offence similar to that for which he was convicted, direct that person to remove himself from the area within the local limits of his jurisdiction. The direction may specify the route to be taken and the time within which the removal must be effected, and it may prohibit the person from entering or returning to the area from which he was ordered to remove himself. For the purpose of this section, “an offence similar to that for which a person was convicted” means, in the case of a person convicted under clause (a), any offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and, in the case of a person convicted under clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in those clauses.

The provision referred to as clause (c) includes an offence that falls under the respective Acts mentioned in those clauses. Section 58 of the Act stipulates that any direction issued under sections 56 or 57, which bars a person from entering a specified area, may be given for a period that the directing authority determines, but such direction may never extend beyond two years from the date on which it is issued. The Court, in the decision of Gurbachan Singh versus The State of Bombay, examined the constitutional validity of section 27(1) of the City of Bombay Police Act of 1902 (Bombay Act IV of 1902). That provision is word for word almost identical to section 56 of the present Act, except that it does not contain the sub‑clause (c). According to the Court’s reasoning, the reasonableness of that provision rests on the necessity that, for the power to be exercised, the officer concerned must be of the opinion that witnesses are unwilling to give public evidence against the person because they fear for their own safety or property. The Court illustrated this point with a passage from page 743 of the report, stating that the law is an extraordinary measure designed solely for exceptional cases where, out of fear of violence to themselves or their property, witnesses will not depose publicly against certain criminal elements whose presence in particular areas threatens the safety of the public residing there. In contrast, the provisions of section 57 of the Act are entirely different. Section 57 may be invoked without any requirement that witnesses be unavailable or without any opinion of the officer regarding witness reluctance. The only conditions necessary for invoking section 57 are that the individual in question has previously been convicted of certain specified offences and that the officer has reason to believe the individual is likely to commit a similar offence again. Consequently, the powers under section 57 may be exercised in any case where there is a likelihood of a repeat offence by a person previously convicted of a similar crime, provided the offence falls within the specified categories, even if witnesses are ready to give evidence. The Court expressed that it could not accept the notion that, in such circumstances, it would be appropriate or reasonable to empower executive officials to impose preventive restrictions on a citizen’s liberty rather than allowing the possibility of the offence occurring and then addressing the deprivation of liberty through the ordinary criminal prosecution and punishment process. While acknowledging that anticipatory prevention can, in some situations, be preferable to post‑offence punishment, the Court emphasized that in a State where personal liberty is a guaranteed fundamental right, any preventive action must be confined within a very narrow scope.

In this case, the Court explained that the exercise of police power must be confined to a very narrow range. Such power may be invoked only when the offence that is likely to be committed is of a serious character, when the probability of its occurrence is high – even approaching imminence – and when there is a real danger that the offender, if left to act, might escape punishment because witnesses are unwilling to cooperate. The Court recalled that Section 151 of the Criminal Procedure Code empowers a police officer to arrest a person whom the officer knows is planning to commit a cognizable offence and to remit that person to the nearest magistrate for appropriate action, as may be permissible under Sections 107 to 110 of the same Code. By contrast, Section 57 of the Act represents a far broader departure from the safeguards embedded in Section 151. Consequently, the Court held that any encroachment on personal liberty as contemplated by Section 57 must be supported by a clear and compelling justification. The Court further observed that such a provision might be defensible only if it is restricted to offences that are serious either by their nature or by the surrounding circumstances, and where there is a genuine risk that witnesses could be terrorised. The Court expressed doubt about the reasonableness of applying such a preventive measure to an individual who has previously committed an offence of a minor character, as defined in Chapters XII, XVI or XVII of the Indian Penal Code, and who could otherwise be dealt with through the ordinary channels of criminal prosecution.

The Court went on to state that the equilibrium between the fundamental right to liberty and the need for social control is not achieved by granting executive officers a power as expansive as that contained in Section 57 of the Act. Such a grant would, in the Court’s view, result in a serious intrusion on the personal liberty of a citizen. While acknowledging that the possibility of abuse of power should not be presumed in order to evaluate its reasonableness, the Court cautioned that a power described in such broad terms and appearing prima facie unreasonable cannot be deemed reasonable merely on the assumption that it will be exercised properly. The Court also found no justification for allowing a prior conviction, without any limitation regarding the elapsed period or the specific circumstances of the earlier offence, to serve as a basis for preventive restriction of liberty. Moreover, the Court noted the absence of any accepted criminological theory that a person who has committed an offence possesses an inherent tendency to repeat a similar offence, except for influences such as environment or heredity. The Court reminded that, in a trial for a new offence, prior convictions are deemed inadmissible. An assessment of a propensity to re‑offend is permissible only where a pattern of repeated offences demonstrates a habitual tendency. Finally, the Court observed that it has been suggested that the power under Section 57 of the Act would be exercised only when the officer possesses material beyond the mere fact of a previous conviction, indicating a likelihood of future wrongdoing.

The Court observed that when a police officer considered a preventive action, the officer was required to look beyond merely the fact of a prior conviction and to examine other material that gave the officer reason to believe that the individual was likely to commit the offence again. The Court noted that this assessment ultimately depended on the officer’s subjective satisfaction, and such a subjective determination was not subject to judicial review. The Court remarked that it would be difficult to determine how much the factor of a previous conviction might have biased the officer’s fair consideration of the other material before him. In the Court’s view, a law that permits such subjective satisfaction to govern the exercise of power must be regarded as unreasonable. Accordingly, the Court held that although the procedural provisions contained in sections 59 and 61 of the Act were not open to serious criticism, the substantive provisions governing the content of the power under section 57 of the Act could not be justified as a reasonable restriction on the fundamental right for three principal reasons. First, clause (a) of section 57 was not limited to offences that were serious in nature or to circumstances specified in the relevant chapters, and therefore the prevention of repetition of such offences could not be treated as a reasonable restriction; it went beyond what could be justified. Second, the mere fact of a prior commission of an offence of the category specified, without any reference to the passage of time, the environment, or other relevant factors, bore no rational relationship to the test of “reasonableness in the interest of public”. Third, the power could be exercised without regard to whether witnesses were unavailable, and this also lacked a rational connection to the criterion of “reasonableness in the interest of public”. For all these reasons, the Court concluded that section 57 of the Act was constitutionally invalid. In the order that followed, the Court stated that, in accordance with the majority judgment, the petition was dismissed and the dismissal was affirmed.