State v. Motilal Kaluram — 1951 DIGILAW 82 (MP)

JUDGEMENT : KAUL, J. This is an appeal preferred by the State against an order passed by the Magistrate, First Class, Jhabua acquitting the respondent Motilal Bhandari who was tried for contravention of an order passed by the District Magistrate, Jhabua, under S. 3(1) (b) of the Maintenance of Public Order Act (Madhya Bharat) No. 7 of 1949, which is an offence punishable under Sub-s. (7) of S. 3 of the same Act. 2. The material facts are as follows : On 8-4-1950, the District Magistrate of Jhabua, passed the following order against the respondent, Motilal Bhandari : The order was served upon the present respondent on 9-4-1950. In contravention of the terms of the said order Motilal Bhandari entered Meghnagar on 8-6-1950. He was accordingly prosecuted for the said contravention. A number of points were raised before the learned Magistrate on behalf of the accused. The validity of the Madhya Bharat Maintenance of Public Order Act was also challenged before him. It was further contended that the order passed was ineffective and unenforceable because it did not specify the period for which the respondent was externed. The last mentioned contention found favour with the learned Magistrate and accordingly he acquitted the accused without expressing any opinion on the other points that were raised. Dissatisfied with this decision the State has preferred the present appeal. 3. It was contended by the learned Advocate-General, who appeared on behalf of the State that the view of law taken by the learned Magistrate in the Court below though it finds support in the decision of Bhargava, J., in 'M.M. BASHIR v. STATE', AIR (38) 1951 All 357, is erroneous. He argued that the matter was concluded by the observations of Patanjali Sastri, J., in 'RAM SINGH v. THE STATE OF DELHI', AIR (38) 1951 SC 270. Reference was made to the following observations which are found at p. 274 of the report : "It is also argued that the orders of detention were bad because they did not specify the period during which the petitioners were to be under detention. This point is now concluded against the petitioners by the decision of this Court in 'UJAGAR SINGH v. THE STATE OF PUNJAB', Petn. No. 149 of 1950 and 'JAGJIT SINGH v. THE STATE OF PUNJAB', Petn. This point is now concluded against the petitioners by the decision of this Court in 'UJAGAR SINGH v. THE STATE OF PUNJAB', Petn. No. 149 of 1950 and 'JAGJIT SINGH v. THE STATE OF PUNJAB', Petn. No. 167 of 1950, where it was pointed out that as S. 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders could not be said to be of indefinite duration and unlawful on that ground." Section 4 of our Act No. 7 of 1949, reads as follows : "An order made under S. 3, shall be in force for a period not exceeding three months unless earlier revoked by the authority making the order : "Provided that any such revocation shall not prevent the making under S. 3 of a fresh order to the same effect as the order revoked." 4. The observations relied on by the Advocate-General were made in a case which arose under the Preventive Detention Act, which was a temporary Act while the present appeal arises in a case under a perpetual statute and so I am unable to hold that the question raised before us is concluded by the observations made in the case of 'RAM SINGH v. STATE OF DELHI', AIR (38) 1951 SC 270. All the same having regard to the language of S. 4 of our Act, I am of opinion, that in the absence of mention by the authority making the order of the period for which the order is to remain in force, it must remain in force for three months unless revoked earlier. It is not necessary to draw any inference as to the intention of the authority making the order about the period of its duration from the language of the order made. By virtue of S. 4, an order made is to remain in force for a period not exceeding three months unless the authority making the same revokes it earlier. The only effect of expressing the duration of the order in the particular form chosen by the Legislature in the Statute under consideration is to give the authority concerned a discretion to make an order which may remain in force for less than three months. In the absence of a specific mention of a shorter period, however, any order passed under S. 3, must ordinarily remain in force for three months. In the absence of a specific mention of a shorter period, however, any order passed under S. 3, must ordinarily remain in force for three months. There can be no analogy between the sections of the Indian Penal Code which provide punishments for various offences and S. 4 of the Madhya Bharat Act 7 of 1949. In the Penal Code usually a maximum period is prescribed for every offence (Ss. 397 and 398 are exceptions to this general rule) and a duty is cast upon the Court to determine what is the right measure of punishment in a particular case before it. In a case under the Penal Code, if the period of punishment is not mentioned in the judgment, it will be left for the reader to guess (or infer) the punishment that the Magistrate intended the convicted person to suffer. The use of the expression 'may extend' in the various sections of the Penal Code casts a duty upon the Court to determine the extent of the punishment in each particular case. The scheme of our Act 7 of 1949, as well as the language of S. 4 of the Act are altogether different. This is obvious if we read the opening clause of S. 3(1) and S. 4 together. The former provides that if satisfied with respect to certain matters the Government of the State may make an order to the effect specified in subsequent clauses of S. 3(1). Then follows S. 4, which as already stated provides that an order under S. 3(1) shall be in force for a period not exceeding three months unless revoked earlier etc. etc. This is not a case in which the Statute provides the maximum period for which the order made may remain in force and casts upon the authority making the order a duty to determine in each case the period for which the order is to remain in force. On the other hand it prescribes a period for which every order made under S. 3 is to remain in force, but leaves it to the authority concerned to limit it to a shorter period if deemed proper. Accordingly if the authority making the order does not limit the duration of the order to a shorter period it must remain in force for three months unless revoked earlier. 5. Accordingly if the authority making the order does not limit the duration of the order to a shorter period it must remain in force for three months unless revoked earlier. 5. The difference between the two forms of expressions, that used in the Penal Code and that in Madhya Bharat Act 7 of 1949, S. 4, conveys an altogether different intention in each case. If at all there may be some analogy between S. 4 of our Act and Cl. (6) of S. 144 of the Code of Criminal Procedure which reads : "No order under this section shall remain in force for more than two months from the making thereof". 6. It is true that the language in S. 144 (6), Criminal P. C. is not exactly the same as that of S. 4 of Madhya Bharat Act, 7 of 1949 but the Madhya Bharat Act, S. 4, has a closer analogy to this provision of the law than to the sections of the Indian Penal Code which prescribe punishments for various offences under the said Code. It was observed by Mookerjee, J., in 'RAM NATH v. EMPEROR', 34 Cal 897 (FB) that : "It is an elementary principle of construction that where a judicial order is to be interpreted such construction must, if possible, be adopted as would make the order one in accordance with law and not an order such as the Court making it had no power to pass. If no time is specified the reasonable presumption is that the Court intended to pass an order which it was competent to pass and which would operate for two months and not to pass an order which would be beyond its statutory powers and consequently void." 7. These observations were relied on by a Bench of Madras High Court in 'R. PONNAPPA AIYANGAR v. VANAMMALAI RAMANUJAR JEER', AIR (7) 1920 Mad 847, which held that where an order under S. 144, specified no time during which it is to be in force the reasonable presumption is that the order is to operate for 2 months and not for an indefinite time. For the reasons given above I disagree with the view taken by the trial Court and hold that the order in question cannot be said to be bad because it does not state the period for which it was to remain in force and is thus of indefinite duration. 8. It was further contended that the omission of the authority making the order to mention the period for which it was to be in force leads to an inference that the District Magistrate did not properly apply his mind to all the relevant points which he ought to have considered at the time of making the order and so the order was bad in law. It may be conceded that if a person against whom an order under S. 3 is made can establish that the order was made without the authority making the same applying its mind to the material before it or without considering the nature of the order which is to be made the order cannot be held a valid order. The reason for this view is obvious. There would in such a case be no 'bona fide' satisfaction of the authority concerned as to the necessity of making the order. The words : "The Government if satisfied............that.........it is necessary so to do, may make an order" imply not only that the satisfaction should be only for the necessity of making some order but the authority concerned should further be satisfied as to the necessity of making the particular order which it passes. In this view of the matter if I were satisfied that the District Magistrate did not consider the period for which the order was to be in force I would be inclined to hold that one of the prerequisites of a good and valid order under S. 3(1) did not subsist. But if an order, which on the face of it is a good and valid order, is passed the burden of proving that it was not made 'bona fide' must rest on the party challenging the same. Want of bona fides cannot be assumed and in the view which I have taken of Section 4, omission by the authority concerned to mention any period of duration of the order necessarily implies that it shall be in force for three months unless revoked earlier. Want of bona fides cannot be assumed and in the view which I have taken of Section 4, omission by the authority concerned to mention any period of duration of the order necessarily implies that it shall be in force for three months unless revoked earlier. I hold accordingly that the validity of the order cannot be challenged on this ground. 9. Mr. Ojha learned counsel for the respondent however challenged the validity of the Act. He contended that its provisions impose restrictions upon the rights of the citizens : (i) to move freely throughout the territory of India, (ii) to reside and settle in any part of India, which were not reasonable. He argued that these were the two Fundamental Rights enjoyed by every citizen of Indian Republic under Article 19 of the Constitution and these rights cannot be restricted or abridged except as specified in Clause (5) of that Article. 10. Maintenance of Public Order Act No. 7 of 1949 was enacted to "provide for preventive detention, imposition of collective fines, control of meetings and processions and precensorship, control and regulation of the publication of any matter in the territories of the United State of Gwalior, Indore and Malwa (Madhya Bharat)." Section 3 of this Act runs as follows : 1. Maintenance of Public Order Act No. 7 of 1949 was enacted to "provide for preventive detention, imposition of collective fines, control of meetings and processions and precensorship, control and regulation of the publication of any matter in the territories of the United State of Gwalior, Indore and Malwa (Madhya Bharat)." Section 3 of this Act runs as follows : 1. The Government, if satisfied with respect to any particular person that with a view to preventing him from doing any act prejudicial to the public safety or maintenance of public order it is necessary so to do, may make an order - (a) directing that he be detained; (b) directing that, except in so far as the may be permitted by the provisions of the order or by such authority or persons as may be specified therein, he shall not remain in any such area or place in the United State as may be specified in the order; (c) requiring him to reside or remain in such place or within such area in the United State 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 be specified in the order : (d) requiring him to notify his movements or to report himself or both - to notify his movements and report himself in such manner, at such times and to such authority or person as may be specified in the order; (e) imposing upon him such restrictions as may be specified in the order in respect of his employment or business, in respect of his association or communication with other persons and in respect of his activities in relation to the dissemination of news or propagation of opinions; (f) prohibiting or restricting the possession or use by him of any such article or articles as may be specified in the order; (g) otherwise regulating his conduct in any such particular manner as may be specified in the order; 2. A District Magistrate may exercise the powers conferred by clause (a) of Subsection (1) and an order so made by him shall be valid for a period not exceeding one month. 3. A District Magistrate may exercise the powers conferred by clause (a) of Subsection (1) and an order so made by him shall be valid for a period not exceeding one month. 3. An order made under Sub-section (1) may require the person in respect of whom it is made to enter into a bond, with or without sureties, for the due performance of, or as alternative to the enforcement of, such restrictions or conditions made in the order as may be specified in the order. 4. If any person is in any area or place in contravention of an order made under the provisions of this Section, or fails to leave any area or place in accordance with the requirements of such an order, then without prejudice to the provisions of Sub-section (6) he may be removed from such area or place by any Police Officer or by any other officer acting on behalf of the Government. 5. So long as there is in force in respect of any person such an order as aforesaid directing that he be detained he shall be liable to be removed to and detained in such place and under such conditions including conditions as to maintenance of discipline and the punishment of offences and breaches of discipline, as the Government may from time to time by general or special order specify. 6. 6. If there is reason to believe that a person, in respect of whom such an order as aforesaid has been made directing that he be detained, has absconded or is concealing himself so that the order cannot be executed, the authority ordering the detention may : (a) make a report in writing of the fact to the Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of the Code of Criminal Procedure relating to declaration, attachment and return, etc., of the property of the absconder shall apply in respect of the said person and his property, as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the official Gazette, direct the said person to appear before such officer, at such place and within such period as may be specified in the order, and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine or with both. 7. If any person contravenes any order made under this section other than an order of the nature referred to in clause (b) of Sub-section (6), he shall be punishable with imprisonment for a term which may extend to one year, or with fine or with both, and if such person has entered into a bond in pursuance of the provisions of Sub-section (3) his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid. 11. Section 4 of the Act has already been reproduced earlier. 12. 11. Section 4 of the Act has already been reproduced earlier. 12. Then we have Section 5 which is as under : "Where an order is made in respect of any person under clause (a) of Sub-section (1) of Section 3 as soon as may be after the order is made, the authority making the order shall communicate to the person affected thereby so far as such communication can be made without disclosing facts which the said authority considers it would be against the public interest to disclose, the grounds on which the order has been made against him and such other particulars as are in the opinion of such authority sufficient to enable him to make, if he wishes, a representation against the order and such person may at any time thereafter make a representation in writing to such authority against the order and it shall be the duty of such authority to inform such person of his right of making such representation and to afford him the earliest practical opportunity of doing so. Such a representation, if made, shall be fully considered by the authority who had passed the order and the result of the reconsideration shall be duly communicated to the person concerned." 13. Under Section 11 : "The Government may by order direct that any power or duty which is conferred or imposed on the Government not being the power of imposing collective fines under Section 6, shall, in such circumstances and under such conditions, if any, as may be specified in that direction, be exercised or discharged by any officer or authority specifically mentioned in that direction." 14. An examination of these sections would show at a glance that they constitute material restrictions and abridgement of the two of the rights conferred by Art. 19(1) of the Constitution to which reference was made in Mr. Ojha's argument. Under Section 3, the Government is empowered to make an order not only for preventive detention or for externment of a person from an area or place specified in the order but may further make an order requiring a person to reside or remain in a place or within an area that may be specified in the order and if he is not already there, to proceed to that area or place. Under that section an order can also be made requiring a person to notify his movements and to report himself in such a manner and at such times and to such authority or person as may be specified in the order. It can also pass an order imposing upon a person restrictions in respect of his employment or business, as also in respect of his association or communication with other persons and in respect of his activities in relation to the dissemination of news or propagation of opinions. An order prohibiting or restricting the possession or use by a person of any such article or articles as may be specified in the order can also be made, and under Clause (g) of Sub-section (1) of the section the Government can pass an order regulating the conduct of the person in any manner otherwise than is covered by the other clauses of that Sub-section. It will be readily conceded that the powers conferred upon the Government under this section are as wide as conceivable. It authorises the Government not only to interfere with the personal liberty of an individual but makes legal an interference by the Government with practically every sphere of activity of the citizen as a preventive measure if it is satisfied that he is likely to do any act prejudicial to public safety or maintenance of public order. 15. We have to consider whether these can be called reasonable restrictions on the exercise of the rights conferred by Article 19 (1) (d), (e) and (f). I may mention that Mr. Ojha in his argument referred to only sub-clauses (d) and (e) of Article 19 (1) but a consideration of Section 3 (1) (g) of Madhya Bharat Act 7 of 1949 would show that even the conduct of a person in respect of acquiring, holding and disposing of property may also be regulated in the manner specified in an order passed by the Government under the said Law. Under Section 3, the Government is not only empowered to pass any order of the nature contemplated by the various clauses of sub-section (1) of that section but to ensure that the order shall be obeyed by the person against whom it is passed, it may require him to enter into a bond with or without sureties for due performance of, or as alternative to the enforcement of the restrictions or conditions specified in the order. In case there is reason to believe that a person in respect of whom an order of detention under Section 3 has been passed has absconded or has concealed himself so that the order cannot be executed the Government or the authority concerned may direct the party affected by an order notified in the official Gazette, to appear at, such place and within such period as may be specified in the order. Failure to comply with the order published in the Gazette is made an offence punishable with imprisonment for a term which may extend to one year or with fine or with both. Even if an order other than one for detention of a person is passed under Section 3 the contravention of any such order is also an offence punishable with imprisonment for a term which may extend to one year or with fine or with both. The foregoing brief analysis of the section would give some idea of the far-reaching character of this Law. 16. The reasonableness of any restrictions imposed should amongst other things, be determined with reference to the relation which they bear to the interest sought to be protected. Section 3 is concerned with preventing acts prejudicial to the public safety or to the maintenance of public order. Are the extremely wide powers conferred by the Legislature upon the Government commensurate with the requirements of the interests sought to be protected thereby? As already pointed out the powers given by Section 3, confer not only the authority to make a person reside in a specified area or to extern a person from a particular area or place - they include the power to control almost any activity of the individual in any sphere of life whatsoever. The section authorises even the passing of an order prohibiting the person against whom the order is made, the use of any article that may be mentioned in the order. 17. The section authorises even the passing of an order prohibiting the person against whom the order is made, the use of any article that may be mentioned in the order. 17. The far-reaching and almost unlimited character of the restrictions that may be imposed on the individual under the powers conferred by Section 3 will be seen in clear relief if we take a concrete instance. Suppose the majority of the residents of a village consists of Brahmins and Kshtriyas who object to the wearing of 'Janeoo' by Pasis or Chamars. Some members of any of the two last mentioned classes insist upon wearing the sacred thread. The Government, the District Magistrate or the authority to whom the power to act under S. 3 has been delegated is of opinion that the wearing of the sacred thread by a Chamar or a Pasi of that village is likely to result in a breach of peace. The authority concerned may in these circumstances make an order under Section 3 against the Pasi or the Chamar who insists on wearing a 'Janeoo' directing him to confine himself to his house for a period of three months if he wears the sacred thread; or an order may be passed that he when appearing in public must cover his body with cloth in such a manner that the 'Janeoo' round his neck is not visible or the authority concerned may even make an order that he should leave the village for three, months. All such orders would be well covered by the language of Section 3. It is thus clear that the restrictions which can be imposed on the right to reside and settle in any part of India and the right to move freely throughout the territory of India are heavily restricted by the provisions of this section. 18. The manner in and the means by which obedience to the order passed under Section 3 may be enforced are drastic and of a character so as to make the restrictions imposed on the rights conferred by Article 19 (1) (d) and (e) unreasonable. A person against whom an order under Section 3 (1) is made may, as already pointed out, be required to execute a bond with or without sureties for due performance of the instructions or the conditions specified in the order. A person against whom an order under Section 3 (1) is made may, as already pointed out, be required to execute a bond with or without sureties for due performance of the instructions or the conditions specified in the order. In case of a person against whom a detention order is passed if there is reason to believe that such a person has absconded or is concealing himself so that the order cannot be executed he may not only be treated as an absconder and steps taken against him under Sections 87 and 88 of the Code of Criminal Procedure but he may further, by an order notified in the official gazette, be directed to appear at a specified place within a specified time. In case he fails to do so, and is unable to satisfy the officer concerned that it was impossible for him to comply with this order and further that he had within the specified time informed the officer concerned of the reasons which rendered compliance of the order impossible, he is guilty of an offence and makes himself liable to punishment for a term which may extend to one year or with fine or with both. Under S. 3(7), if a person against whom action is taken under S. 3 (1), contravenes any other order (an order other than the one for detention) made under S. 3 (1) he can similarly be punished with imprisonment for one year or with fine or with both. Thus it will be seen that with a view to prevent persons from doing any act prejudicial to public safety or maintenance of public order S. 3 imposes not only extraordinarily wide and heavy restrictions on the rights conferred upon the citizens by Art. 19 (1) (d) and (e), but the disobedience of any such order is made a penal offence punishable with a sentence of one year or with fine or with both. The unreasonableness of the restrictions imposed by the statute under consideration does not result merely from unusually wide character of the restrictions that may be imposed upon the rights of the citizens but also flows from the manner in which the power conferred may be exercised. Under S. 11, the Government is empowered to delegate the powers or duty which is conferred or imposed on the Government, 'to any officer or authority'. Under S. 11, the Government is empowered to delegate the powers or duty which is conferred or imposed on the Government, 'to any officer or authority'. This it will 'be seen is in marked contrast with the analogous provisions of the Preventive Detention Act No. 4 of 1950, (an Act passed by the Parliament) where the power to make an order of detention is granted either to the Central Government or to the State Government or to the District Magistrate or to an Additional District Magistrate specially empowered in this behalf, the Commissioners of Police of Bombay, Madras, Calcutta or Hyderabad or to Collectors in Hyderabad in certain specified circumstances; while under our Act, there are no such safeguards and the powers may be delegated to a Naib Tehsildar or to a Sub-Inspector of Police or may be even to a Head Constable. From the onerous character of the restrictions imposed, the penalties attached to the disobedience of any order passed under this law and in the absence of any safeguard against the delegation of the powers to the Subordinate Officials, however so low in rank, I am clear that the restrictions which the law permits to be imposed cannot be called reasonable. 19. This is not all. The unreasonableness of restrictions becomes evident when we find that except in the case of an order of detention (see S. 5) the person against whom any other of the various orders which it is permissible to make under S. 3 (1) is passed, the person affected thereby is not given any right of representation. The authority making the order may have acted on wrong information or under a mistaken belief as to the existence of a set of circumstances which really do not exist, yet the person against whom an order is made, if it is an order other than one for his detention, is without a remedy. There cannot be a slightest doubt that such restrictions as are permitted to be imposed on two of the Fundamental Rights of the citizen under the impugned statute cannot be said to be reasonable restrictions as contemplated by Art. 19 (5) of the Constitution. The result, therefore, is that the provisions of Ss. 3 and 11 read with S. 5 of the Act, render the Fundamental Rights conferred by Art. 19 (1) (d) and (e) of the Constitution practically valueless. The result, therefore, is that the provisions of Ss. 3 and 11 read with S. 5 of the Act, render the Fundamental Rights conferred by Art. 19 (1) (d) and (e) of the Constitution practically valueless. The provisions of S. 3 are of such a far-reaching character that they may restrict and abridge even Fundamental Rights other than those to which reference has just been made, but in the view that I take of the matter it is unnecessary to go into that question. I hold accordingly that the cumulative effect of Sections 3, 5 and 11 of Act 7 of 1949, is to impose restrictions on the Fundamental Rights conferred by Art. 19 (1) (d) and (e) which cannot be called reasonable. The restrictions which it is permissible to impose under those sections must, therefore, be held to be 'ultra vires' of the powers of the State Legislature. 20. The result, therefore, is that the order passed by the District Magistrate of Jhabua against Motilal Bhandari must be held to be an order which was illegal and his acquittal by the trial Court must, therefore, be upheld. 21. The appeal preferred by the State is accordingly dismissed. 22. CHATURVEDI, J. :- I agree. Appeal dismissed.