Krishna Iyer, J. - (1.) The appeal before us raises a thorny issue of some importance which may be epigramatically expressed as when has the citizen the discretion to disobey an order When is a determination not a determination This riddle has to be solved in the foggy legal right of conflicting decisions and academic opinions, Indian and Anglo-American. To appreciate the contention urged in the case a few facts must be narrated.
(2.) Section 56 of the Bombay Police Act, 1951 (the Act, for short) empowers a Police Commissioner to extern any un-desirable person on grounds set out therein and the petitioner fell victim to such a direction issued on September 5, 1967. On contravention of that order he has prosecuted under Section 142 of the Act but was acquitted by the trial Court. The State appealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is whether the externment order having been quashed by the High Court under Article 226 of the Constitution on July 16, 1968 -- during the pendency of the criminal trial - it had become void ab initio and there being thus no quit order in law ther was no offence. The learned Judge rejected this effect of the writ issued under Article 226 and convicted the accused. His reasoning, invigorated by surgical imagery flowed thus: "Now the contravention took place on September 17, 1967 whereas the externment order in question has been quashed about one year thereafter on July 16, 1968. The question, therefore, is:can a person against whom an order of externment under Section 56 of the Bombay Police Act has been issued disobey the said order and contravene the directions contained therein with impunity if subsequently the order is quashed If the argument of the learned counsel were to be accepted, though the externment order held the field and had not been quashed at the material time, no offence would be committed in view of the subsequent quashing of the order. In other words, though the order had not been declared invalid at the material time a contravention thereof would not constitute an offence. A distinction in my opinion has to be drawn between an order which is ab initio void and an order which is subsequently quashed on account of some technical defect or irregularity. If the order was ab initio void if it was a nullity from the inception, if it was a still born child, the matter, would have stood on a different footing. In the present case the child was alive and kicking and apparently healthy. It has subsequently died during the course of an exploratory operation. The order has been held to be invalid and is quashed on the ground that it cannot be sustained on account of some defect, infirmity or irregularity which has been subsequently discovered. It cannot be said that the order was void ab initio. The order of the High Court passed on July 16, 1968 does not render the order nullity its very inception. It is not retroactive. It does not render the order of externment "non est" What it does is to invalidate it with effect from the date of the issue of the writ quashing the said order. If the argument of the learned counsel were to be sustained it would result in an anomalous situation. The externment order can be violated with impunity if a subsequent writ petition is allowed and the order is quashed. The contravention, however, would constitute an offence if the writ petition is rejected. It is not possible to take a view which would result in such an anomalous situation. There is no principle in upholding the respondent's claim that he has a right to violate an order passed by an authority having jurisdiction to pass it, if subsequently he can persuade the court that there was an inbuilt lacuna or latent defect in the said order. In other words he claims to have the right to judge for himself whether the order is legal or not and in anticipation of the court upholding his conception, the right to violate it with impunity. Be it realised that these powers are vested into the administration to enable it to take prophylactic action to protect the society from imminent dangers. These powers cannot be allowed to be robbed of their potency at the sweet will of the person proceeded against in anticipation of a sub-sequent favourable verdict of the court." There are some untoward potentialities and legal anomalies visualised by the learned Judge which lend assurance to the juridical concept that an order or act quashed by a court is valid until judicially set aside or declared void. We have to examine the validity of this temporary validity imputed to an otherwise bad order. Whan does a bad order become bad
(3.) Violation of natural justice is the vice of the order which was defied by the accused. We will first set out the relevant porvision in the Act and the ground of decision in the writ petition, shorn of unnecessary portions, Section 56 reads:- "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 of 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 part as regards the safety of their person of 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 so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction (or such area and any district or districts, or any part thereof, contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the said area (or the area and such contigous districts, or part thereof, as the case may be) from which he was directed to remove himself.";