A COMMENTARY ON

HARI KHEMU GAWALI

Vs.
THE DEPUTY COMMISSIONER OF
POLICE,BOMBAY AND
ANOTHER1
SUBMITTED TO
MR. RAHUL MISHRA
FACULTY OF- ADMINISTRATIVE LAW

SUBMITTED BY

DEVASHRI CHAKRAVORTY
TRIMESTER-VII

1956 AIR 559, 1956 SCR 506

TABLE OF CONTENTS

Methodology ................................................................................................3

Acknowledgement......................................................................................... 4

Abbreviations.................................................................................................5

Synopsis of facts............................................................................................5

Legal issue involved and judgement..............................................................6

Analysis......................................................................................................... 8

Conclusion..................................................................................................... 9

Bibliography .................................................................................................10

METHODOLOGY

This project is based on doctrinal method of research.

Hypothesis: Understand and analyse the concept of law through a case law.

ACKNOWLEDGEMENT

I am deeply indebted to Mr. Rahul Mishra, Professor, MATS Law School, MATS
University, Raipur for constantly guiding and encouraging me to undertake and complete
this project. I am thankful for his patient disposition.
I am also thankful to Dr G.P. Tripathi, Director, and all other staff of the MATS Law School,
MATS University, Raipur for giving me opportunity and facility to complete this work.

Devashri Chakravorty
7th Trimester, B.B.A-LLB

ABBREVIATIONS
1. AIR All India Report
2. Sec. Section
3. No.. Number
4. H.C. High Court
5. CrPCCode of Criminal Procedure
6. Cl. ....................................................... Clause
7. SC........................................................ Supreme Court

SYNOPSIS OF FACTS
In this case, the petitioner challenged few vires of certain provisions of The Bombay Police
Act, 1951. The respondent of this case, i.e. the Deputy Commissioner had passed an
externment order against the petioner under section 57 of the Police Act, 1951. The section
57 says that,
If a person has been convicted (a) (i) of an offence under Chapters XII, XVI or XVII of the Indian Penal Code (XLV of
1860), or
(ii) of any offence udder Secs. 65,66-A or 68 of the Bombay Prohibition Act, 1949 (Bom.
XLV of 1949), or
(iii) of an offence under Secs. 3, 4, 5, 6 or 9 of the Suppression of Immoral Traffic in Women
and Girls Act, 1956 (CIV of 1956), or
(iv) of an offence under Sec. 135 of the Customs Act, 1962 (52 of 1962), or
(v) of an offence under Sec. 4, or for accepting bets in any public street or thoroughfare or
in any place to which the public have or permitted to have access or in any race course
under Cl. (a) of Sec. 12, or under Sec 12-A of the Bombay Prevention of Gamb ling Act,
1867 (Bom. IV of 1867), or
(b) twice or more of an offence under the Bombay Prohibition Act, 1949 (Born XXV of 1949)
not being an offence under Sees. 66, 66-A or 68, or
(c) twice or more of an offence under Sec- 122 or 124 of this Act, 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 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 area or the areas and such contiguous district or districts or part thereof, as
the case may be, from which he was directed to remove himself.
The petitioner also alleged that the Prohibition Police of the City instituted twelve
prohibition cases against him which all ended either in his discharge or acquittal. An
"externment order" was again 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.

LEGAL ISSUES INVOLVED AND JUDGEMENT OF THE COURT

The main contentions raised in this case were1. 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 had been contended that the police has
been vested with un- limited 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.
Honourable Justice JAGANNADHADAS stated thatthe constitutional validity of section 57(a) of the Bombay Police Act, 1951 (Bombay Act
XXII of 1951) (hereinafter referred to as the Act) is a provision which prima facie infringes
the fundamental right of a citizen under article 19(1)(d) and (e) of the Constitution. It can be
supported only if, having regard to all the circumstances, it is possible to reach a satisfactory
conclusion that the imposition of the restrictions as provided there under is in the interests of
the general public and reasonable. The fact that our Constitution which declares fundamental
rights also permits a law of preventive detention under very limited safeguards and that such
laws have taken the pattern of the exercise of power by the Government or by its officers for
specified purposes on the basis of their subjective satisfaction, has made -us prone to
reconcile ourselves to other kinds of restrictive laws affecting personal liberty though based
on the subjective satisfaction of executive officers, if only they provide for certain minimum
safeguards such as supply of grounds, right of representation, and the scope for review by a
superior authority or by an advisory body. If one is to adopt this standard as furnishing the
sine qua non of what is a reason- able law of preventive restriction of personal liberty, it may
be possible to say that the provision under question satisfies the test. But the law of
preventive detention stands on a very exceptional footing in our Constitution inasmuch as it
is specifically provided for in the Constitution. The same Constitution has left the imposition
of other restrictions on personal liberty to be judged by the courts with reference to the
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standards of reasonableness, in the interests of the public. While undoubtedly the above three
safeguards may be taken as the minimum required to satisfy the standard of reasonableness, I
am not prepared to assume that they are sufficient. It appears to me that the constitutional
validity of laws of preventive restriction, as opposed to the laws of preventive detention,
have to be judged with reference to standards which this Court has generally accepted as
regards the validity of restrictions on the other fundamental rights under article 19(1) of the
Constitution. As repeatedly held by this Court, a proper balance must be struck between the
fundamental right of the citizen and the social control by the State in order to evolve the
permissible restriction of the fundamental right under the Constitution.
To my mind the law -which permits subjective satisfaction to prevail on such material must
be considered unreasonable. In my view, therefore., though the procedural portion of the law
as provided in sections 59 and 61 of the Act may not be open to serious criticism, the
substantive portion of the law relating to content of the power as provided under section 57
of the Act cannot be held to be in the nature of reasonable restriction of the fundamental
right.
For all the above reasons I consider that section 57 of the Act is constitutionally invalid.

CRITICAL ANALYSIS OF THE CASE

The judgment of the court is clearly in accordance with the rules of natural justice. It would
not be right or reasonable to clothe executive officers with the power to take preventive
action restraining the liberty of the citizen instead of taking the chance of the offence being
committed and leaving the deprivation of his liberty to the ordinary channels of criminal
prosecution and punishment. It is true that in some matters anticipatory prevention is better
than ex post facto punishment. But in a State where personal liberty is a guaranteed
fundamental right, the range of such preventive action must be limited to a narrow compass.
It was right to declare the said section of the Bombay Police act, 1951 to be unconstitutional
because section 57 of the Act cannot be held to be in the nature of reasonable restriction of
the fundamental right, for three reasons.
1. Clause (a) of section 57 of the Act not being confined to offences serious in their nature or
with reference to the attendant circumstances within the Chapters specified therein,
prevention of the repetition thereof cannot be considered a reasonable restriction. It is in
excess of what may be considered justifiable.
2. The previous commission of an offence of the category specified, without any reference to
the time, environment and other factors has no rational relation to the criterion of
"reasonableness in the interest of public".
3. The exercise of the power not being limited by the consideration of non-availability of
witnesses is also not rationally related to the criterion of "reasonableness in the interest of the
public".
Thus it is clear that section 57 was vesting vide powers in the hands of the executive officers
which could be easily misused and had no provision to keep a check on them and also
violated natural rights.

CONCLUSION
The decision of the Honourable Supreme Court is in accordance with the principle of natural
justice, human rights and our Constitution. The said section of the Bombay Police Act, 1951
did not have sufficient means of control over possible misuse of power. The of law of our
constitution contemplates the existence of adequate means to check possibilities of misuse of
every kind of power lodged in officials of the state.
The right to life and liberty is an essential element of any democratic system and at the root
of this concept lays the concept of natural right and natural justice which is the base of any
society.
Whenever a public authority is invested with the power to make an order which prejudicially
affects the rights of an individual, then, whatever may be the nature of the power the
proceedings of the public authority must be regulated by the analogy of rules governing
judicial determination of disputed questions.

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BIBLIOGRPHY

Statutes referred
(i)

Constitution of India

(ii)

The Bombay Police Act, 1951

(iii)

The Preventive Detention Act, 1950

Books Referred
(i)

Basu D.D, Commentary on the Constitution of India, Vol 1, Lexis Nexis,

Butterwoths Wadhwa, Nagpur

(ii)

Messy I.P, Administrative Law, VIIth Edition, Eastern Book Company

(iii)

Jain M.P, Commentary on Administrative Law, Vol 1, Lexis Nexis Butterworth

Wadhwa, Nagpur

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