Section 57 Bombay Police Act: A Legal Analysis

An Exposition of Section 57 of the Bombay Police Act, 1951: Balancing Preventive Action and Fundamental Freedoms

Introduction

Section 57 of the Bombay Police Act, 1951 (now the Maharashtra Police Act, 1951, hereinafter referred to as "the Act"), is a preventive provision empowering specified police authorities to issue externment orders against individuals who have been previously convicted of certain offences. The underlying legislative intent is to protect the public from the activities of persons deemed likely to re-engage in criminal conduct, thereby maintaining peace and order. This measure, while aimed at societal protection, significantly impinges upon the fundamental rights of individuals, particularly the right to freedom of movement and residence guaranteed under Article 19(1)(d) and (e) of the Constitution of India. This article undertakes a comprehensive analysis of Section 57, examining its legislative framework, constitutional validity, essential ingredients for its invocation, procedural safeguards, and the scope of judicial review. The analysis draws heavily upon the provided reference materials, including seminal judicial pronouncements that have shaped the interpretation and application of this provision.

Legislative Framework and Purpose of Section 57

Section 57 of the Act provides for the removal of persons convicted of certain offences. It typically states that if a person has been convicted of an offence under specified chapters of the Indian Penal Code, 1860 (IPC) (e.g., Chapters XII, XVI, or XVII), or under other specific statutes, and the competent authority has reason to believe that such person is likely again to engage in the commission of an offence similar to that for which they were previously convicted, an order of externment may be passed directing them to remove themselves outside a specified area.

The Supreme Court, in State Of Bombay (Now Maharashtra) v. Vishnu Ramchandra (1961 AIR SC 307), elucidated the nature of Section 57, observing that it "does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons who have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition of such activities." This protective, rather than punitive, nature of Section 57 was also highlighted by the Delhi High Court in Raj Pal Petitioner v. Union Of India & Others (Delhi High Court, 1969), which contrasted it with Section 56 of the Act (dealing with removal of persons about to commit offences).

The distinction between Section 56 and Section 57 is crucial. While Section 56 focuses on individuals whose present movements or acts are causing alarm or who are reasonably believed to be engaged or about to be engaged in certain offences, Section 57 targets individuals with a history of specific convictions and a perceived likelihood of recidivism in similar offences (Hari Khemu Gawali v. Deputy Commissioner Of Police, Bombay And Another, Supreme Court Of India, 1956, snippet providing text of S.56 and S.57). The Supreme Court's analysis in Deepak v. State Of Maharashtra And Others (2022 SCC ONLINE SC 99), though concerning Section 56, underscores the extraordinary nature of externment orders and the need for strict compliance with legal standards, principles equally applicable to Section 57.

Constitutional Scrutiny and Fundamental Rights

Externment orders under Section 57 directly curtail the fundamental rights guaranteed under Article 19(1)(d) (to move freely throughout the territory of India) and Article 19(1)(e) (to reside and settle in any part of the territory of India) of the Constitution. The constitutional validity of such provisions rests on their being "reasonable restrictions" imposed "in the interests of the general public" under Article 19(5).

The Supreme Court has had multiple occasions to examine the constitutionality of externment provisions. In Hari Khemu Gawali v. Deputy Commissioner Of Police, Bombay And Another (1956 AIR SC 559), the constitutional validity of Section 57 itself was challenged. The majority upheld the provision, deeming the restrictions it imposed to be reasonable and in the public interest. The Court reasoned that targeting individuals with a history of specific offenses to prevent future crime was a legitimate legislative objective. This view was also supported by earlier decisions like Gurbachan Singh v. State Of Bombay And Another (1952 AIR SC 221), which upheld Section 27(1) of the precursor City of Bombay Police Act, 1902, establishing that such restrictions could be reasonable if aimed at protecting the community.

However, the dissenting opinion in Hari Khemu Gawali (1956) by Justice Jagannadhdas raised concerns about the lack of safeguards, such as an advisory board, and the potential for arbitrary enforcement. This highlights the perpetual tension between state authority to maintain public order and the imperative to protect individual liberties. The case of State Of Madhya Pradesh And Anr v. Baldeo Prasad (1960 AIR SC 293) is instructive by contrast; the Court struck down provisions of the C.P. & Berar Goondas Act for vagueness and lack of clear criteria, while noting that the corresponding Bombay Police Act provisions (including S.57) had been upheld, implying that the latter contained (or were interpreted to contain) sufficient, albeit minimal, safeguards.

Essential Ingredients for Invoking Section 57

For an externment order under Section 57 to be valid, certain conditions must be met:

Prior Conviction(s)

The individual must have been convicted of offences specified within Section 57. These typically include serious offences under the IPC (Chapters XII, XVI, XVII) or other enumerated statutes. The phrase "has been convicted" has been interpreted to mean that convictions predating the enactment of the 1951 Act can also form the basis for an externment order, provided the externment order itself is passed after the Act came into force. This was clarified in State Of Bombay (Now Maharashtra) v. Vishnu Ramchandra (1961 AIR SC 307) and reiterated in Workmen Of M/S Firestone Tyre And Rubber Co. Of India (P.) Ltd. v. Management And Others (1973 SCC 1 813).

"Reason to Believe" of Likelihood to Re-engage

Mere prior conviction is insufficient. The competent authority must have a "reason to believe" that the person is likely to re-engage in the commission of an offence similar to that for which they were previously convicted. This "reason to believe" involves the subjective satisfaction of the authority, but such satisfaction must be based on objective material and not be arbitrary, capricious, or based on mere suspicion. As held in Agostinho Fernandes, Shiroda-Goa. v. Chief Secretary And Anr. (Bombay High Court, 2003), citing Dhondiram Appa Hatkar v. State of Maharashtra & Ors. (1987 Mh.L.J. 1046), the competent authority must apply its mind to this likelihood. The principles of "application of mind" discussed in Deepak v. State Of Maharashtra (2022) concerning Section 56 are analogously relevant here.

Nexus between Past Convictions and Future Likelihood

A crucial element is the nexus between the past convictions and the anticipated future criminal activity. The authority must be satisfied that the individual is likely to commit offences similar in nature to their past crimes. This requires a careful assessment of the individual's antecedents and current disposition.

Procedural Safeguards and Natural Justice

Given the serious consequences of an externment order, procedural fairness is paramount. Section 59 of the Act typically outlines the procedure, requiring that before an order of externment is passed, the proposed externee must be informed in writing of the general nature of the material allegations against them and be given a reasonable opportunity of tendering an explanation and examining witnesses, if any.

The Supreme Court in Pandharinath Shridhar Rangnekar v. Dy. Commr Of Police, State Of Maharashtra (1973 SCC 1 372), while dealing with Section 56 and 59, held that the notice must convey the "general nature" of allegations sufficiently to enable the person to offer an explanation. However, what constitutes sufficient detail can be contentious. In Karan Ramesh Ghuge v. Dy. Commissioner Of Police (2013 SCC ONLINE BOM 747), an externment order under Section 57 was challenged because, inter alia, the show-cause notice allegedly lacked specific details about in-camera statements, such as dates of recording and specific places of occurrence, thereby prejudicing the petitioner's defence. Similarly, in Aswin Chandulal Jaiswal v. Deputy Commissioner Of Police, Vadodara And Another (1989 SCC ONLINE GUJ 39), the Gujarat High Court emphasized that if statements are relied upon, the person affected should be given an opportunity to explain the general nature of allegations in those statements, even without disclosing witness names.

The adequacy of these safeguards, particularly the absence of a judicial or quasi-judicial advisory board to review the merits of the proposed externment (a point noted in Justice Jagannadhdas's dissent in Hari Khemu Gawali (1956)), remains a subject of debate.

Judicial Review of Externment Orders under Section 57

The judiciary plays a vital role in ensuring that the power of externment is exercised in conformity with the law and constitutional principles. While courts do not substitute their own satisfaction for that of the executive authority, they can review externment orders on several grounds. These include:

  • Non-application of mind by the externing authority.
  • The order being passed on vague, extraneous, or irrelevant material.
  • Mala fides or improper purpose.
  • Violation of principles of natural justice or non-compliance with mandatory procedural requirements under Section 59.
  • The order being patently unreasonable or perverse.
  • Exceeding the jurisdiction conferred by the Act.

The Supreme Court in Deepak v. State Of Maharashtra (2022), reiterated that externment orders are an extraordinary measure and must demonstrate substantive reasoning and necessity. While State Of Maharashtra And Others v. Bhaurao Punjabrao Gawande (2008 SCC 3 613) dealt with preventive detention and emphasized the limited scope of judicial review at the pre-execution stage, the general principles regarding judicial oversight post-execution to check for arbitrariness are pertinent to externment orders as well. The court's role is to ensure that the subjective satisfaction of the authority is genuinely reached and based on materials that have a rational probative value.

Consideration of Other Reference Materials

Several other provided reference materials, while not directly focused on Section 57, offer contextual insights or highlight broader legal principles:

  • Ratansinh Dalsukhbhai Nayak v. State Of Gujarat (2004 SCC 1 64): This case primarily concerns the evidentiary value of child witness testimony in a murder trial (Section 302 IPC). Its direct relevance to the procedural or substantive aspects of Section 57 (a preventive measure) is minimal. It underscores the distinct judicial function in punitive proceedings, focusing on proof beyond reasonable doubt based on admissible evidence, as opposed to the subjective satisfaction required for preventive externment.
  • Abdul Rashid Ibrahim Mansuri v. State Of Gujarat (2000 SCC CRI 496): This judgment deals with procedural safeguards under the NDPS Act, 1985 (Sections 35, 42, 50), particularly the recording of intelligence and its impact on the presumption of culpable mental state. While the statutory context is different, the underlying principle of strict adherence to procedural mandates in laws that have severe consequences for individual liberty can be seen as a general tenet of Indian criminal and quasi-criminal jurisprudence, resonating with the need for procedural fairness in externment proceedings.
  • Manohar Ramchandra Manapure And Others v. State Of Maharashtra And Another (1989 SCC ONLINE BOM 247): This case concerns the limitation period for revisional proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. Its legal principles are specific to that statute and do not directly translate to the procedural framework or timelines governing externment orders under the Bombay Police Act.
  • Cases on Arrest (Shri Bihari & Anr. v. State Of U.P., Allahabad HC, 2019; Amareesh & Anr. v. State Of U.P., Allahabad HC, 2019; Mohd.Faisal v. State Of U.P., Allahabad HC, 2019; and the principles discussed in VAIBHAV DATTARAM SHINDE v. STATE OF MAHARASHTRA AND ANR, Bombay High Court, referencing Md. Asfak Alam v. The State of Jharkhand & Anr., 2023 SCC Online SC 892 and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273): These cases pertain to the power of arrest under Section 41 of the CrPC, emphasizing the need for police officers to record reasons and satisfy themselves of the necessity of arrest. Externment is distinct from arrest in a criminal case. However, the broader constitutional expectation that any state action curtailing personal liberty must be based on reasoned belief and necessity, as highlighted in these judgments, finds a parallel in the requirement for "application of mind" and "reason to believe" under Section 57.
  • Marry Kutty Thomas v. State Of Maharashtra And Others (Bombay High Court, 1987) provides an example of a notice under Section 56 and the procedural framework of Section 59, which is common to externment proceedings, thus offering a practical illustration of the notice format.
  • Gazi Saduddin v. State Of Maharashtra And Another (Supreme Court Of India, 2003) provides the text of Section 56, useful for comparative understanding with Section 57.
  • Koli Bharatbhai Ukabhai Vegad v. District Magistrate (Gujarat High Court, 2001) discusses whether externment under Section 57 is a less drastic action that must be considered before preventive detention under PASA. It concludes it is not obligatory, thereby situating Section 57 within the broader spectrum of preventive state actions.

Conclusion

Section 57 of the Bombay Police Act, 1951, represents a significant legislative tool for preventive policing, aimed at incapacitating individuals with past criminal convictions who are deemed likely to relapse into similar criminal activities. The judiciary, through numerous pronouncements, has largely upheld its constitutional validity as a reasonable restriction in the interest of the general public, provided its application adheres strictly to the statutory requirements and principles of natural justice. The core challenge lies in ensuring that the "reason to believe" regarding future conduct is based on tangible material and is not a guise for arbitrary action. While the provision serves a legitimate state interest in maintaining public order and safety, its potential for misuse necessitates continuous judicial vigilance and scrupulous adherence to procedural safeguards by the executive authorities. The balance between safeguarding society and protecting individual fundamental freedoms remains a delicate one, and Section 57 continues to be a focal point of this intricate legal and constitutional interplay.