HARI KHEMU GAWALI Vs. DEPUTY COMMISSIONER OF POLICE BOMBAY

JUDGEMENT

(1.) JUDGMENT of S. R. Das C. J. and Venkatarama Ayyar, Sinha and Imam JJ. was delivered by

(2.) THIS petition under article 32 of the Constitution challenges the vires of certain provisions of the Bombay Police Act, XXII of 1951, which hereinafter will be referred to as 'The Act' with particular reference to section 57 under which the externment order dated the 8/11/1954 was passed against the petitioner by the first respondent, the Deputy Commissioner of Police, Crime Branch (1), C.I.D., Greater Bombay. The second respondent is the State of Bombay. The petitioner, who claims to be a citizen of India, was born in Bombay and had been, before the order of externment in question, residing in one of the quarters of the City of Bombay. He keeps bullock carts for carrying on his business of transport and cows for selling milk. The petitioner alleges that the Prohibition Police of the City instituted twelve prohibition cases agast him which all ended either in his discharge or acquittal. An 'externment order' was passed against him in August 1950. That order was set aside by the Government in December 1950, on appeal by the petitioner. In December 1953 an order of detention was passed against him under the Preventive Detention Act, 1950, and he was detained in the Thana District prison. He moved the High court of Bombay under article 226 of the Constitution against the said order of detention.- He was released from detention before the said petition was actually heard by the High court. Thereafter, the petitioner along with others was charged with possession of liquor. The case went on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24/02/1955 as the prosecution witnesses were not present on the date fixed for hearing of the case. On the night of the 9/10/1954 the petitioner was arrested along with his companions a little after midnight by members of the police force designated 'Ghost Squad', which was a special wing of the Crime Branch of the C.I.D., on the allegation made by the police that they were seen running away on the sight of a police van and that they were chased and arrested 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. It is convenient at this stage to set out the said notice in extenso, which is Exhibit A to the petition filed in this court:- 'Notice under section 59 of the Bombay Police Act, 1951. Name, address & age: Hari alias Dada Khemu Gawali, Hindu aged about 37 years.' Occupation: Bullock cart owner. Residence: Room No. 45, 1st floor, Haji Kassam Chawl, Lamington Road. Under section 59 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951), you are hereby informed that the following allegations are made against you in proceedings against you under section 57 of the said Act. In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 11 a.m. on 25/10/1954 to receive your explanation and to hear you and your witnesses, if any, in regard to the said allegations. I, N. P. Paranjapye, Superintendent, C.B.I., C.I.D., therefore require you to appear before me at H. P. 0. Annexe I (place) on the said date viz. 25/10/1954 at 11 a.m. for the said purpose and to pass a bond in the sum of Rs. 500.00 with' one surety in like amount for your attendance during the inquiry of the said proceedings. Should you fail to appear before me and to pass the bond as directed above, I shall proceed with the inquiry in your absence. Take note: Allegations:- 1. That you have been convicted of offences as per particulars mentioned below:- <FRM>JUDGEMENT_559_AIR(SC)_1956Html1.htm</FRM> 2. That you were arrested on 29/3/1948 in connection with Nagpada P.S.C.R. No. 273 of 1948 u/s 143, 147, 148, 149, 353, Indian Penal Code wherein you along with one Ramchandra Ishwarbhai and others committed rioting and criminal assault on a public servant, viz. a police constable No. 4459/D to deter him from the execution of his lawful duties but you were discharged in the said case due to lack of sufficient evidence. 3. That you were again arrested on 2/5/1948 in connection with Nagpada P.S.C.R. No. 353 u/s 143, 144, 146, 147, 148, 149, 324, Indian Penal Code wherein you along with one Rajaram Khemu Gawli and 7 others committed rioting armed with deadly weapons, viz., lathis, sodawater bottles etc. and caused hurt to one Gopal Khemu Gawli but you were discharged in the said case for want of sufficient evidence. 4. That you were again arrested on 3/6/1949 in connection with Nagpada P.S.C.R. No. 336 of 1949 u/s 143, 147, 149, 225, 225-B, 332, Indian Penal Code wherein you along with one Shri Vithal Baloo and others committed rioting, assaulted a public servant, viz. a police officer (Shri S. K. Kothare) to deter him from the lawful discharge of his duties and made 3 persons in the lawful custody of the police to escape, but were discharged in the said case for want of sufficient evidence. 5. That now you have been arrested on 9/10/1954 at about 12-50 a.m. in the company of 7 others, viz. (1)Amir Masud (2) Francis Sherao & China (3) Antoo Narayan (4) Abdul Wahab Abdul Gafoor (5) Laxman Rama (6) Narayan Tukaram and (7) Rajaram Vishnoo out of whom persons mentioned at Nos. 1 and 6 are, previous convicts and that at the time of arrest you and persons mentioned at Nos. 1, 2, 3 and 4 were, armed with deadly weapons to wit, clasp knives, iron bar and a lathi, and thus you were reasonably suspected to be out to commit an offence either against property or person; And that you are likely again to engage yourself in the commission of a similar offence falling either under Ch. XVI or XVII of the Indian Penal Code. Sd. N. P. Paranjapye Superintendent of Police, Crime Branch (I), C.I.D. L.T.I. of Hari Dada Khemu Gawli. The petitioner appeared before the Superintendent on the 8/11/1954 with his counsel and filed a long petition containing allegations running into 16 paragraphs showing cause against the order of externment proposed to be passed against him. That petition is Ex. B. The petitioner accepted the correctness of the allegation contained in the first paragraph of Ex. A set out above, but denied the truth of the other allegations made therein against him which he characterised as based on 'old prejudice and suspicion'. As regards his conviction referred to in the first paragraph aforesaid, he stated:- 'I had unfortunately a conviction in 1938 when was a mere youth. I have lived a clean and honourable life ever since.' Then he goes on to make reference to the other cases charged against him and claimed that he had been 'discharged in those cases for want of sufficient evidence'.

(3.) IN support of the petition which was heard -along with Petitions Nos. 439 and 440 of 1955 (in which the orders impugned had been passed under section 56 of the Act and which are being disposed of by a separate judgment) the leading argument by Shri Purshotham raised the contentions,(1) that section 57 of the Act contravened clauses (d) and (e) of article 19(1) of the Constitution and that the provisions of that section imposed unreasonable restrictions on the petitioner's fundamental rights of free movement and residence; and (2) that the order passed under section 57 against the petitioner is illegal inasmuch as it is based on vague allegations and inadmissible material, for example, on orders of discharge or acquittal. Each of the two broad grounds has been elaborated and several points have been sought to be made under each one of those heads. It has been contended that the police have been vested with unlimited powers in the sense that any person whom they suspect or against whom they have their own reasons to proceed can be asked to remove, not only from any particular area, like Greater Bombay, but from the entire State of Bombay. Even if one order does not ask a person to remove himself out of the entire State, each authority within its respective local jurisdiction can ask a particular person to go out of that area, so that that person may find himself wholly displaced without any place to go to. Unlike the law relating to preventive detention, there is no provision for an Advisory Board which could examine the reasonableness of the order proposed to be passed or already passed, so that there is no check on the exercise of power by the police authorities under the-Act, however flagrant the abuse of the power may have been. It is also contended that the provisions as regards hearing by the police authorities and appeal to the State government are illusory. The police is both the prosecutor and the judge and the remedy provided by the Act is a mere eye-wash. It is also pointed out that all kinds of offences have been clubbed together which have no rational connection with one another. Reliance was placed on certain observations made by this court in a number of decisions,, viz., Chintaman Rao v. The State of Madhya Pradesh(1); The State of Madras V. V. G. Row(2); Thakur Raghubir Singh v. court of Wards, Ajmer(3); Messrs Dwarka Prasad Laxmi Narain v. State of U. P.(4); and Ebrahim Vazir Mavat v. State of Bombay(5).