The State of Madhya Pradesh and Another v Baldeo Prasad

970 SUPREME COURT REPORTS [1961) _196°_ the appellant's right is based a.re rules or regulations having the force of law the impugned executive order _M_ _adhavrao_ _PhaJAe_ 1ssu • ed b y respon d en t l wou Jd be · mva ) 'd 1 • Th e rig t · h n, _;;ate_ _of_ guaranteed to the appellant by an existing law can_Jt.dhya_ _Bharat_ not be extinguished by the issue of an executive order. ·. - In fact on this point there has never been a dispute _Ga1••dragadAar_ _I_ between the parties in the present proceedings. That is why the only point of controversy between the parties was whether the Kalambandis in question amount to an existing law .or not. Since we have answered this question in favour of the appellant we must allow the appeal, set a.side the order passed by the High Court and direct that & proper writ or order should be issued in favour of the appellant as prayed for by him. The appellant would be entitled to his oosts throughout. _Appeal allowed._ THE STATE OF MADHYA PRADESH AND ANOTHER ti. BALDEO PRASAD (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDBA· GADKAB, K. SuBBJ RAo and K. N. WANCHOO, JJ.) _GOOflllas,_ _Conlrol_ _and_ _EJtcl11si011_ _of-Conslil11ti-Onal_ _validity of_ _enadment-Test-Central_ _PrOl!inces_ _and_ _Berar_ _G0011tlas_ _Act, r946_ (X _of r946)_ a.s _amerukd_ _by_ _Act XLIX_ _of r950,_ _ss._ _4, 4-A-C011s·_ litllltOfl _of IM.ia,_ _Aris._ r9(r}(d) & (e), _IJ._ By an order passed under s. 4-A of the Central Province. and Berar Goondas Act, 1946 (X o! 1946), as amended by the Madhya Pradesh Act XLIX of 1950, the State of Madhya Pra. desh directed the respondent to leave the district of Chhindwara, which bad been specified as a proclaimed area under the Act, and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the growul that the Act violated his lundamental rights under Art. 19o)(d) and (e) of the Constitution and was, therefore, invalidated' by Art. 13 of the Constitution. The HigJ> Court held that ss. _4_ and 4-A of the impugned Act were invalid and since they w~e the _r_ #### .. 1 s.c.R: SUPREME COURT REPORTS 971 main operative provisions of the Act, the whole Act was in- _I960_ valid. _The_ _Sta.le_ _of_ _Madhya_ _Pradesh_ _c;._ _Anothet_ v. _Bald10_ _Prasad_ ,l/'I _Ileld,_ that when a statute authorises preventive action .gainst.the citizens, it is essential that it must expressly provide tlfat the specified authorities should satisfy themselves that the d>nditions precedent laid down by the statute existed before they acted thereunder. If the statute fails to do so in respect of any such condition precedent, that is an infirmity sufficient to take the statute out of Art. 19(5) of the Constitution. Although there can be no doubt that ss. 4 an.d 4-A of the impugned Act clearly contemplated. as the primary condition preced~nt to any action thereunder that the person sought to be proceeded against must be a goonda, they fail to provide that the District Magistrate should first find that the person sought to be proceeded against was a goonda or provide any guidance whatsoever .in that regard 01 afford any opportunity to. the person proceeded against to show that he was not a goonda. The definition of a goonda laid down by the Act, which is of an inclusive character, indicated no tests for deciding whether the person fell within the first part of the definition. _Gurbachan_ _Singh_ v. _The_ _Slate of_ _Bombay,_ [1952] S.C.R. 737, _Bhagubhai_ _Dullabhabhai_ _Bhandari_ v. _The_ _District_ _Magistrate,_ _Thana,_ [1956] S:C.R. 533 and _Hari_ _Khenu_ _Gawali_ v. _The_ _Deputy_ _Commissioner_ _of_ _Police,_ _Bombay,_ [1956] S.C.R. 506, referred to. Although the object of the impugned Act was beyond reproach and might well attract Art. i9(5) of the Constitution, since the Act itself failed to provide sufficient safeguards for the protection of the fundamental rights and the operative sections were thus rendered invalid, the entire Act must fail. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 271 of 1956. Appeal from the judgment a.nd order dated August 2, 1955, of the former Nagpur High Court in Misc. Petition No. 249 of 1955 . . _M. Adhikari, Advocate.General "for_ _the_ _State of_ _Madhya Prade8h, B. K. B. Naidu_ a.nd _I. N. Shroff,_ for the a.ppella.nts. _R._ _Patnai.k,_ for the respondent. -. 1960. October 3. The Judgment of the Court we.a delivered by GAJENDBAGADKAB J.-'J;hia appeal with &. oertifi, _Goj1ndra1adhr_ _J._ ca.te iaaued by the Nagpur High Court under Art. 132(1) of the Ccnstitution raises a. question a.bout the validity of t~e Central Provinces and. Berar Goonda.s #### 972 SUPRK\IE cor;gr REPORTS [1961] _i96o_ Act X of 1946 as amended by Madhya Pradesh Act _n_, XLIX of 1950. It appears that against the respon Ma;:,1~';::.;~,,, dent Ba.Iden Prasad the State of llfadhya Pradesh, ~ _Ano1h"_ appella.11t l, pass('d a.n u1dn ou .June 16, 19:i!i, u11dcr v. s. 4-A oft.he Act. Subsequently the Dist.rid :'\lagi::1 _1Jaldeo i'>arnd_ trate, Ch hind II' ara, a.ppellan t 2, passed a11uthcr ord~r -- dated Juno 22, 1955, communicating to the rcspon_G_ _a;rnd•agadka•·_ _j.d_ h fi - .J _l_ . . ent t e rst. externment oruer pass(•c agarnst him. The respondent then filet.l a writ pdition in the High Court (No. 249 of 1955) nuder Art. 226 challenging tho validity of the said orders, inter alia, on the ground that the Act under which the said orders were passed was itself ultra vire:i. The appellants disputed the respondent's contention about the rires of the Act. The High Court, however, has upheld tho respondent's. plea and has held that ss. 4 and 4-A of the Act aro invalid, and since the two sections contain the main operative provisions of the Act, according to the High Court, the whole Act became invalid. It is the correctness of this conclusion whioh is challenged before us by the appellants. It would be convenient at this stage to refer briefly to the scheme of the Act and its relevant provisions. 'l'he Act was passed in 1946 and came into force on September 7, 1946. It was subsequently amended and the a.mend~d Act came into force on X ovember 24, 1950. As the preamble shows the Act was passed because it was thought expedient to provide for the control of goondas and for their removal in certain circumstances from one place to another. Section 2 defines a goonda as meaning a hooligan, rough or a ve.gabond and as including a person who is dangerous to public peace or tranquillity. It would thus be seen that the definition of the word "goonda" is an inclusive definition, and it includes even persons who may not be hooligans, roughs or vagabonds if they aro otherwise dangerous to public peace or tranquillity. Section 3(1) empowers the State Government toiissue a proclamation that distu~bed conditions exist or are likely to arise in the areas specified in such proclama tions if tho State Government is satisfied that public pea.co or tranquillity in any area is disturl/ed or is #, ### • ,. 1 S.C.R. SUPREME COURT REPORTS 973 "\ < likely to be disturbed. The area in respect of whieh _I96o_ a proclamation is thus issued is described in the Act _Th_ 5 . _1_ as the proclaimed area. Section 3(2) limits the opera- Mad:ya'~:a~esh tion of the proclamation to three months from its & _Another_ date and provides that it may be renewed by notifioa- v. tion from time to time for a period of three months at _Baldeo Prasad_ ##### · a time. The first step to be taken in enforcing the -operative provisions of the Act thus is that a procla- _Gajendragadkar_ _f._ mation has to be issued specifying the proclaimed areas, and the limitation on the power of the State Government to issue such a proclamation is that the proclamation can be issued only after it i~,;atisfied as required by s. 3(1); and its life will not be longer than three months at a stretch. Section 4 reads thus: "4(1). During the period the proclamation of emergency issued or renewed under Section 3 is in operation, the District Magistrate having jurisdiction in or in any part of the proclaimed area, if satisfied that there are reasonable grounds for believing that the presence, movements or acts of any goonda in t~e proclaimed area is prejudicial to the interests of the general.public or that a reasonable suspicion exists that any goonda is committing or is likely to commit acts calculated to disturb the public peace or tran quilli~y may make an order(i) directing such goonda to notify his residence and any change of or absence from sµch 1residence during the' term specified and to report his movements in such manner· and to such authority as may be 1! pecified ; - (ii) directing that he shall. not remain . in the proclaimed area within his Jurisdiction or any specified part thereof and shall not enter such area ; and (iii) directing .him. so to conduct himself during the period specified as the District Magistrate shall deem necessary in the interests of public order : . Provided 'that no order under clause (ii) which d,ireots the exclusion of any goonda from a place in w_hich he ordinarily resides aha.II be made. excJJpt with the previou·s approval of the State Government : Provided further that no such order shall be **l.24** 974 SUPREME COURT REPORTS [1961] _r96o_ made directing exclusion of any goonde. from the dis· _T"'_ _51_ _1_ [trict ][in which he ordinarily resides. ] _Madhya_ ~;a~csh (2) No order under sub.section (I) shall be ~ _Anoth"_ made by a District Me.gistrate in respect of a goonde. v. without giving to such goonda e. copy of the groundij _Baldeo Prasad_ on which the order is proposed to be me.de and with· -, out giving an opportunity to be heard: _G_ _4Jtndragadnar_ [. ] _}._ p rov1 'd d th e at w ere h t h e D" 1str1ct - M ag1s ' t rate 1s ' - f opinion that it is necessary to make an order without e.ny delay he may for reasons to be recorded in writ· ing, make the order and shall, as soon as may be within ten de.ya from tho date on which tho order is served on the goonda concerned, give such goonda a copy of the grounds and an opportunity to be heard. (3) After hearing the goonda, the District Magis· trate may cancel or modify the order as he thinks fit ... This section confers on the District Magistrate jurisdiction to make an order against a goonda if there are reasonable grounds for bolioving that his presence, movements or acts in any proclaimed e.ree. is likely to be prejudicial to the inte.rests of the general public, or if there is a reasonable suspicion that a goonda is committing or is likely to commit prejudicial sots. Sub-clauses (i), (ii) e.nd (iii) indicate the nature of the directions and the extent of the restrictions which can be placed upon a goonda. by an order passed under s. 4. Sub-section (2) requires the District Ma.gistrate to give the goonda a copy of the grounds on which an order is proposed to be made, and to give him an opportunity to be heard why such an order should not be passed aga.inst him. The proviso to th" section deals with an emergency which needs immediate action. After hearing the goonda the District Magistrate may under sub-s. (3) either ca.nee) or modify the order a.s he thinks fit. Section 4-A ree.ds thus: · "(I) Where the District Magistrate considers that with a. view to maintain the pee.co and tranquil· lity of the proola.imed area in his district it is neoes· sary to direct a. goonda to remove himself outside the district in which the proclaimed area is compri.'6(1 C7I ###### ' ' _r-_ 1 S.C.R. SUPREME COURT REPORTS 975 to require him to reside or remain in any place or _'9_ _[60 ]_ within any area outside such district, the District _**The**_ _**Stale**_ _**of**_ Magistrate may, after giving the goonda an opportu- _Madhya_ _Pradm_ nity as required by sub-section (2) of Section 4 forward & _Anothir_ to the State Government a report together with con- v. 9ected papers with a recommendation in that behalf. _Balde• Prasad_ (2) On receipt of such report the State Govern- ment may, 1 1 'f 't 1s ' sa t' 1s fi e d th a t th e recommen a d t' 10n _Gajendragadkar_ - _J._ made by the District Magistrate is in the in~erests of the gerieral public, make an order directing such goonda . (a) that except in so far as he may be permitted by the provisions of the order, or by such authority or persori as may be specified therein, he shall not remain in any such area or place in Madhya Pradesh as may be specified in the order; (b) to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may by specified in the order : Provided that no order shall be made directing the exclusion or removal from the State of any person ordinarily resident in the State." . Thus an order more stringent in character can be passed under this section. The safeguard provided by the section, however, is that . the District . Magistrate is rtrquired to give the· goonda an opportunity to be •• ' hear<l and further required to make a report to the State Government and forward to the State Govern• ment papers connected with the recommendation which the District. Magistrate makes. Sub-section (2) of s. 4-A then requires the State Government to consider the matter and empowers it to make an order either under cl. (a) or cl. (b) of the said sub-section. The proviso to this section lays down that no order shall be made by which the goonda would be excluded -Or removed from the State where he ordinarily resides. The last section tO which reference may be made is s. 6. It gives a goonda aggrieved by an order made against him, inter alia, under s. 4 or s. 4-A to make a tEpresont.ation to the ·State Government within the 976 SUPREME COtTRT REPORTS [1961] _i96o_ time prescribed, &nd it requires the State Governm1mt , to consider the representation &nd make such orders _T nt_ _SI alt_ _o /_ th "t d fit Tb - b • f. b h I _Madhya Pradtsh_ ereon as I may cem . at rn r1e 1st e sc eme ~ G _At1other_ of the Act. v. At this stage it would be material to 'state the rele_Baldeo Prasad_ vant facts leading to the writ petition filed by the ##### . -- respondent. Appellant 1 issued & proclamation under _Ga;emfragadkar f._ s. 3 on August 10, 1954, specifying the limite of Police Stations Par&sia and J&mai and Chhindwara Town &s proclaimed area. This proclamation w&s renewed in November, 1954 and February, 1955. Thereafter on May 9, 1955, appella.nt 1 issued a fresh procla.mation specifying the whole of the Chhindw&ra District as the proclaimed &re&. This proclamation was to remain in force till August 8, 1955. Whilst the second proclamation was in force the second appellant received reports from the District Superintendent of Police, Chhindwara, against the respondent, and he ordered the issue of & notice to him to show ca.use why action should not be taken against him under s. 4 ; this notice required the respondent to appear before the. second appellant on April 29, 1955. The respondent, though served, did not appear before the second &ppella.nt. Thereupon the second appellant sent a report to a.ppella.nt 1 on April 30, 1955, and submitted the case against him with & draft order for the approval of the said appellant under the first· proviso to s. 4(1). In the meantime the third notification was issued by appellant 1. The second appella.nt then issued. a fresh notice against the respondent under s. 4 on May 24, 1955. The respondent appeared in person on May 30, 1955, and wa.s given time to file his written statement which he did on June 4, 1955. The case was ·then fixed for hearing on June 22, 1955. Mea.nwhile the State Government passed ·an order on June 16, 1955, directing th&t the respondent shall, except in so f&r as he ma.y be permitted by the second appellant from time to time, not remain in a.ny pla.oe ·' in Chhind war& District. This order wa.s to remain in force until August 8, 1955. On June 22, 1955, the second appellant communic~ted the 'said order ~ t~e respondent and directed him to leave the D18tr1ct 1 S.C.R. SUPREME COURT REPORTS 977 before 10 a. m. on Jtine 23, 1955. The respondent _1_ _60_ _9_ ( appealed to appellant 1 to cancel the order· passed _TM_ _Stat•_ _of_ . against him. The first appellant treated the appeal _Madhya_ _Praderh_ as a representation made by the respondent under s. _6 &- _A11oth1r_ and rejected it on July 9, 1955. A day before this v. order was passed the respondent filed his writ petition _Baldeo Praiad_ in the High Court from which the present appeal GaienJ.-agadk~' ;. arises. The respondent challenged the validity of the Act on the ground that it invades his fundamental rights under Art. 19(l)(d) and (e) and as such it becomes invalid having regard to the provisions of Art. 13 of the Constitution. This plea has been upheld by the High Court. On behalf of the appellants the learned Advocate-General of Madhya Pradesh contends that the High Court was in error in coming to the conclusion that the restrictions imposed by the Act did not attract the provisions of Art. 19(5). The legislative competence of the State Legislature to pass the Act cannot be disputed. The Act relates to public order which was Entry 1 in List II of the Seventh Sphedule to the Constitution Act of 1935. There can also be no doubt that the State Legislature would be competent to pass an act protecting the interests of the general public against the commission of prejudicial acts which disturb public peace and order. Section 3 of the Act indicates that it is only where the public peace or tranquillity is threatened in any given a.rea of tho State that the State Government is authorised to issue a proclamation, and as we have already not.if;ecl, it is in respect of such proclaimed areas and for the limited duration prescribed by s. 3(2) that ord0rs can be passed against goondas whose prejudicial activities add to the disturbance in the proclaimed areas. Therefore, broadly stated the purpose of the Act is to safe-guard individual rights and protect innocent and peaceful citizens against the prejudicial activities of goondas, and in that sense the Act .may prima facie claim the benefit of Art. 19(5). This position is not seriously disputed. The argument against the validity of the Act is, 'howt1ver, ha.Red on one serious infirmity in s. 4 ancl 978 SUPREME COURT REPORTS [1961) _r96o_ s. 4-A which contain the operative provisions of the Act. This infirmity is common to both the sections, M~::,Y~t~:adesh and so what we will say abouts. 4 will apply with & _Another_ equal force to s. 4-A. It is clear that s. 4 contemv. plates preventive action being taken provided two _Baldeo Prasad_ conditions are satisfied ; first, that the presence, . - movements or acts of any person sought to be pro_GaJendragadkar_ _J._ ceeded against shoul~ appear to the District Magis trate to be prejudicial to the interests of the general public, or that a reasonable suspicion should exist that such a person is committing or is likely to commit acts calculated to disturb public peace or tranquillity; and second that the person concerned must be a goonda. It would thus be clear that it is only where prejudicial acts can be attributed to a goonda that s. 4 can come into operation. In other words, the satisfaction of the first condition alone would not be enough ; both the conditions must be satisfied before action can be taken against any person. That clearly means that the primary condition precedent for taking action under s. 4 is that the person against whom action is proposed to be taken is a goonda; and it is precisely in regard to this condition that the section suffers from a serious infirmity. The section does not provide that the District Magistrate must first come to a decision that the person against w horn he proposes to take action is a goonda, and gives him no guidance or assistance in the said matter. It is true that under s. 4 a goonda is entitled to have an opportunity to be heard after he is given a copy of the grounds on which the order is proposed to be made against him ; but there is no doubt that all that the goonda is entitled to show in response to the notice is to challenge the correctness of the grounds alleged against him. The enquiry does not con tern plate an investigation into the question as to whether a person is a goonda or not. The position, therefore, is that the District Magistrate can proceed against a person without being required to come to a formal decision as to whether the said person is a goonda or not; and in any event no opportunity is intended to be given to the person to show J ##### • 1 S.C.R. SUPREME COURT REPORTS 979 that he is not a goonda. The failure of the section to _r96o_ make a provision in that behalf undoubtedly consti. fi - - · h _The_ _St'fl./t'_ _of_ tutes a serious m rm1ty rn its sc eme. _!ifadkya Pradt;s/,_ Incidentally it would also be relevant to point out {~ _Anoth"_ that the definition of the word "goonda" affords no v. assistance in deciding which citizen can be put under _Baideo_ _Prasad_ that category. It is an inclusive definition an<l it does . :-not indicate which tests have to be applied in _decidingG"J'"d"•gadkae_ '· whether a person falls in the first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter. After all it must be borne in mind that the Act authorises the District Magistrate to deprive a citizen of his fundamental right under Art. 19(l)(d) and (e), and though the object of the Act and its purpose would undoubtedly attract the provisions of Art. 19(5) care must always be taken in passing such acts that they provide sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by them. It is W-iill known that the relevant provisions of the Act are initially put in motion against a person at a lower level than the District Magistrate, and so it is al ways necessary that sufficient safeguards should be provided by the Act to protect the fundamental rights of innocent citizens and to save them from unnecessary harassment. That is ·why we think the definition oft.he word "goonda" should have given necessary assistance to the District Magistrate in deciding whether a particular citizen falls under the category of goonda or not; that is another infirmity in the Act. _As_ we have already pointed out s. 4-A suffers from the same infirmities as B. 4. Having regard to the two infirmities in ss. 4, 4-A respectively we do not think it would be possible to accede to the argument of the learned Advocate. General that the operative portion of the Act can fall under Art. 19(5) of the Constitution. The person against whom action· can be taken under the Act is not entitled to know the source of the information received by the District Magistrate ; he is only told a.bout his prejudicial activities on which the satisfac. tion of the District Magistrate is based that action 980 SUPREME COURT REPORTS [1961] _1960_ should be ta.ken age.inst him under s. 4 or s. 4-A. In such a ca8e it is absolutely essential that the Act must _The_ _Stolt_ _of_ 1 1 · d · _W_ b d fi - ' h _Madhya_ _Prade.<h_ c ear y ID !Ca y a proper e mt1oa or ot erw1se .s. _A,.011,,,_ when a.ad under what circumstanr.es a person can be v. ca.lied a gooada, and it must impose an obligation on _Boldeo I..,,asad_ the District Magistrate to apply his mind to the ques - lion as to whether the person age.inst whom com_Gaj .. d••c•"""'_ _f._ plaints are received is such a. goonde. or not. It has been urged before us tha.t such an obligation is implicit in ss. 4 and 4-A. We a.re, however, not impressed by this argument. Where a statute empowers the specified authorities to take preventive action age.inst the citizens it is essential that it should expressly make it a pa.rt of the duty of the said authorities to satisfy themselves a.bout the exiswnce of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubted. ly constitutes a serious infirmity which would inevitably take it out of the provisions of Art. 19(5). The result of this infirmity is that it he.a left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonde.. In other words, the restrict~uns whioh it allows to be imposed on the exercise of the fundamental right of a citizen guaranteed by Art. 19(l)(d) and (e) must in the oiroumate.ncea be held to be unreasonable. That is the view ta.ken by the High Court and we see no reason to differ from it. In this connection we may refer to the corresponding Bombay statute the mawrie.l provisions of whioli have been examined and upheld by this Court. Section 27 of the City of Bombay Police Act, 1902 (4 of 1902), which provides for the disperse.I of gangs and bodies of persons has been upheld by this Court in _Gurbachan Singh_ v. _The State of_ _Bombay(')_ whereas s. 56 and s. 57 of the subsequent Bombay Police Act, 1951 (22 of 1951), have been confirmed respectively iu _Bhagubhai Dullahhabhai Bhandari_ v. _The District_ _MagiBtrate,_ _Thana_ (') and _Hari_ _Khemu Gawali_ v. _The_ _Deputy CommiBB'ioner_ _of Pulice, Bombay(')._ It wotlld be ' ' (I) (1952] S.C.R. 737· (•) [1956] S.C.R. _53J._ (31 [1956J s.c.a. _5o6._ l S.C.R. SUPREME COURT REPORTS 981 noticed that the relevant provisions in the latter Act r96o the validity of which lras been upheld by this Court _Th_ _st_ _t._ _1_ indicate how the mischief apprehended from the Mad~y• ~:a~esh activities of undesirable characters can be effectively & _Another_ checked by me.king clear and specific provisions in v. that behalf, e.nd how even in meeting the challenge _Baldeo_ _Prasad_ to public peace e.nd order sufficient safeguards can be _G_ . _d-dk_ included in the statute for the protection of· innocent _aJe• raga_ _ar_ _f._ citizens. It is not clear whether the opportunity to be heard which is provided for by s. 4(2) would include an opportunity to the person concerned to lead evidence. Such e.n opportunity he.s, however, been provided by s. 59(1) of the Bombay Act of 1951. As we ha.ve a.lrea.dy mentioned there can be no doubt tha.t the purpose a.nd object of the Act are above reproach e.nd tha.t it is the duty of the State Legislature to ensure tha.t public peace and tranquillity is not disturbe4 by the prejudicial activities of criminals a.nd undesirable cha.ra.cters in society. Tha.t, however, cannot help the appellants' case because, a.s we have indice.tecl, the infirmities in the operative sections of the Act a.re so serious tha.t· it would be impossible to hold tha.t the Act is saved under Art. 19(5) of the Constitution. There is no doubt tha.t if the operative sections a.re invalid the whole Act must fall. - In the result the order passed by the High Court is confirmed a.nd the a.ppea.l is dismissed with costs. _Appeal_ _diBmiBaed._ _(_ t•S