NAIK,J. - (1.) THIS revisional application No. 1393 of 1958 has a chequered career. It arises in the following circumstances: The petitioner, who would hereinafter be referred as the 'accused', was served with an order of externment under Section 57(a) of the Bombay Police Act, 1951, on October 15, 1957. The order was to the effect that the accused was convicted under Section 380 read with Section 114 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one month on November 16, 1949, and that he was likely again to engage himself in the commission of an offence similar to the above offence, and, therefore, the Deputy Commissioner of Police called upon the accused to remove himself out of the limits of Greater Bombay and Thana District within two days from the date of the final order in the case, viz. the Yellow gate Police Station L.A. No. 11682 of 1957 pending against him and in case he is convicted in the said case and is sent to the jail for undergoing any imprisonment he will remove himself within two days from the date of his release from the jail. The case for the prosecution was that the police officer explained the contents of the order and obtained the left hand thumb impression of the accused and the copy of the order was given to the accused. Thereafter on August 24, 1958, at about 8 -30 p.m. Police Constable No. 6511/D arrested the accused at Ibrahim Rahimtulla Road on suspicion. The accused, therefore, was prosecuted for having entered within the limits of Greater Bombay by violating the order of externment, under Section 142 of the Bombay Police Act, 1951.
(2.) THE accused pleaded not guilty to the charge. He admitted that the order of externment was served on him properly. He, however, denied that he had entered within the limits of the prohibited area. According to him, he was arrested at Mumbra Railway Station and was brought by train. This was the only contention that was raised before the learned Presidency Magistrate. The learned Presidency Magistrate rejected the defence and believing the evidence of the prosecution held the offence proved. He accordingly sentenced the accused to suffer rigorous imprisonment for six months. Against that judgment the accused has come up in revision. In the first instance, this revision application was heard by my learned brother Mr. Justice Mudholkar (as he then was). Three points were urged before Mr. Justice Mudholkar. The first was that the Deputy Commissioner of Police had not applied his mind to the facts of the case before making the order of externment. The second was that Section 57 of the Bombay Police Act was prospective and could not be made applicable, unless the conviction on which the action of externment was based, took place after the coming into force of that Act. The third was the belief entertained by the Deputy Commissioner that the accused was likely to engage himself in the commission of an offence similar to that for which he was prosecuted was based on the prosecution which was then pending and that that ground disappeared after the acquittal. Mr. Justice Mudholkar did not consider the first and the third grounds. He accepted the second contention, viz. Section 57 of the Bombay Police Act was prospective and could not be made applicable unless the conviction on which the action of externment was based, took place after the coming into force of that Act. Accordingly, he acquitted the accused. See 61 Bom. L.R. 498. The State preferred an appeal to the Supreme Court after obtaining special leave. The appeal was heard by the Division Bench consisting of Hidayatullah and J. C. Shah, JJ., of the Supreme Court. Their Lordships came to the conclusion See 63 Bom. L.R. 427 that Section 57 would apply even when the offence for which the externee was convicted was committed by him before the coming into operation of the Bombay Police Act, 1951. Their Lordships pointed out: No man has such a vested right in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history.
(3.) IN view of the fact that the first and the third grounds were not considered by Mr. Justice Mudholkar, their Lordships have sent the case back to this Court for consideration of those two grounds.;