If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the provisions of Art.

Case number:1961 AIR 293 1961 SCR (1) 970
Decided on:03/10/1960
Relevant Act/Sections:Central Provinces and Berar Goondas Act, 1946 Constitution of India
  • By an order passed under s. 4-A of the Central Provinces and Berar Goondas Act, 1946 (X of 1946), as amended by the Madhya Pradesh Act XLIX of 950, the State of Madhya Pradesh directed the respondent to leave the district of Chhindwara, which had 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 ground that the Act violated his fundamental rights under Art. i9(i)(d) and (e) of the Constitution and was, therefore, invalidated by Art. 13 Of the Constitution.
  • The High Court held that ss. 4 and 4-A of the impugned Act were invalid and since they were the main operative provisions of the Act, the whole Act was invalid. Appellant 1 issued a proclamation under S. 3 on August 10, 1954, specifying the limits of Police Stations Parasia and Jamai and Chhindwara Town as proclaimed area. This proclamation was renewed in November, 1954 and February, 1955. Thereafter on May 9, 1955, appellant 1 issued afresh proclamation specifying the whole of the Chhindwara District as the proclaimed area. 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 a notice to him to show cause 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 appellant. Thereupon the second appellant sent a report to appellant 1 on April 30, 1955, and submitted the case against him with a 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 appellant 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 was 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. Meanwhile the State Government passed an order on June 16, 1955, directing that the respondent shall, except in so far as he may be permitted by the second appellant from time to time, not remain in any place in Chhindwara District. This order was to remain in force until August 8, 1955. On June 22, 1955, the second appellant communicated the said order to the respondent and directed him to leave the District before 10 a. m. on June 23, 1955. The respondent appealed to appellant 1 to cancel the order passed against him. The first appellant treated the appeal as a representation made by the respondent under s. 6 and rejected it on July 9, 1955. A day before this order was passed the respondent filed his writ petition in the High Court from which the present appeal, arises.
  • The respondent challenged the validity of the Act on the ground that it invades his fundamental rights under Art. 19(1)(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. It is the correctness of this conclusion which is challenged before us by the appellants.

The High Court’s decision of  upholding that ss. 4 and 4-A of the Act are invalid, and since the two sections contain the main operative provisions of the Act, the whole Act became invalid is in question.

  • The court viewed that when a statute authorises preventive action against the citizens, it is essential that it must expressly provide that the specified authorities should satisfy themselves that the conditions 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 and 4-A of the impugned Act clearly contemplated as the primary condition precedent 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 or 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.
  • Section 27 of the City of Bombay Police Act, 1902 (4 of 1902), which provides for the dispersal of gangs and bodies of persons has been upheld by this Court in Gurbachan Singh v. The State of Bombay wherein It would be  noticed that the relevant provisions in the latter Act the validity of which has been upheld by this Court indicate how the mischief apprehended from the activities of undesirable characters can be effectively checked by making clear and specific provisions in that behalf, and how even in meeting the challenge to public peace and order sufficient safeguards can be included in the statute for the protection of innocent’ 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 an opportunity has, however, been provided by s. 59(1) of the Bombay Act of 1951.
  • Although the object of the impugned Act was beyond reproach and might well attract Art. 19(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.

The court decided that the infirmities in the operative sections of the Act are so serious that it would be impossible to hold that the Act is saved under Art. 19(5) of the Constitution. There is no doubt that if the operative sections are invalid the whole Act must fall. In the result the order passed by the High Court is confirmed and the appeal is dismissed with costs. Appeal dismissed.

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