(1.) THE main question in, this application is whether the Madras Restriction of Habitual Offenders Act (Act 6 of 1348) in its entirety or any of its provisions has become void after the coming into force of the new Constitution as being inconsistent with the provisions of Part III of it. The 16 petitioners are residents of Ramjeenagar, a village in Tiruchirapalli taluk or Tiruchirapalli District. One of them, namely, the first petitioner, was served with a memorandum of the proceedings of the District Magistrate, Tiruchirapalli, dated 12-5-1951. It is alleged that similar notices were intended to be served on the other petitioners and other persons The memorandum is in the following terms: "memorandum for imposing restrictions on Habitual offenders: It is hereby informed that as the person whose name and address is described below has been registered under the Criminal Tribes Act, 1924, and as he within a period of five years immediately preceding 29-41948 had been either ordered to give security for good behaviour with reference' to Section 110, Cr. P. C. or convicted of an offence under Section 24 of the said Act or of a non-bailable offence under any other law, a notification is deemed to have been issued under Section 3, Sub-section (1), Restriction of the Habitual Offenders Act, 1948, he is declared to be subject to all the provisions of the said Act, and further subject to all the restrictions imposed under the Criminal Tribes Act before 29-4-1948. Further the said person is informed that he is bound to intimate to village or police officers of the place mentioned in column 5 of the schedule hereunder every change or intended change of his residence. (By order) Sd. G. M. Muthuswami, for District Magistrate, Fascimile of Muthukannu, Huzur Head Clerk. SCHEDULE No. No. under Name Father's Residence Particulars of Criminal Name the place to Tribes Act which the person is confined. 12345 6 14 26c/trikep Arumngnin Ponniah Ramjeenagar' Within five Semi Palaniuniles round sudi Itam-jeenagar Area. To understand the implication of this notice and the contentions of learned counsel for the petitioners it is necessary to refer to the provisions of the impugned Act as well as the prior enactments, namely, the Criminal Tribes Act, 1924, and the Madras Restriction of Habitual Offenders Act, 1943.
(2.) THE Criminal Tribes Act was passed by the Indian Legislature in 1924 and was amended by the Criminal Tribes (Madras Amendment) Act, 1943 and another amending Act of 1945. It is useful to first refer to its main provisions as they stood before the amendments. Under Section 3 of that Act, if the Provincial Government had reason to believe that any tribe, gang or class of persons or any part thereof was addicted to the systematic commission of non-bailable offences, it was empowered to declare by notification that such tribe, gang or class of part thereof was a criminal tribe for the purposes of that Act. Sections 4 to 9 deal with the registration of members of any criminal tribe or part of a criminal tribe by the District Magistrate. The District Magistrate had to publish a notice at the place where the register was to be made and other places as he thought fit calling upon all the members of the criminal tribe to appear at a time and place specified before the person appointed in that behalf and to give that person such information as may be necessary to enable him to make the register. The District Magistrate was given the power of exempting any member from registration. After the preparation of the register, no person's name could be added to the register nor any register cancelled except by or under an order in writing by the District Magistrate. Section 7, Sub-section (2) expressly provides that before the name of any person is added to the register the Magistrate shall give notice to the person concerned. Section 8 is as follows:
"any person deeming himself aggrieved by any entry made, or proposed to be made, in such register, either when the register is first made or subsequently, may complain to the District Magistrate against such entry, and the Magistrate shall retain such person's name on the register, or enter it therein or erase it therefrom, as he may think fit. " Under Section 10 the Provincial Government may, by notification, issue in respect of any criminal tribe either or both the following directions, namely, that every registered member shall in the prescribed manner (a) report himself at fixed intervals and (b) notify his place of residence and any change or intended change of residence and any absence or intended absence from his residence. Section 11 provided that if the Provincial Government considered it expedient that any criminal tribe or any part or member of such tribe should be restricted in its or his movements to any specified area or settled in any place of residence, it could declare that such tribe, part of the tribe or member shall be restricted in its or his movements to the areas specified in the notification, or shall be settled in the place of residence so specified as the case may be. Before making such a declaration the Provincial Government had to consider certain matters set out in Section 11 (2 ). Power to vary the specified area of restriction was given to the Government under Section 12. Sections 16 to 19 dealt with the establishment of industrial, agricultural or reformatory settlements and provided for placing members of the tribe in such settlements. There is also provision for establishing schools for children of the criminal tribe. Section 20 confers on the Provincial Government the power to make rules. Sections 21 and 22 deal with the penalties for breach of the sections or rules framed under the Act. Section 24 is a special section providing for punishment even when no actual offence is committed, It is in these terms:
"whoever, being a registered member of any criminal tribe, is found in any place under such circumstances as to satisfy the court, - (a) that he was about to commit or aid in the commission of, theft or robbery, or (b) that he was waiting for an opportunity to commit theft or robbery, shall be punish able with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to one thousand rupees,"
(3.) THE other provisions are not material for this application.;