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  • G.C O'Gorman, with A.R Gadhari and S.K Ambedkar, for the accused. The object of s. 27 of the City of Bombay Police Act, 1902, is to empower the Commissioner of Police to remove a gang of badmashes out of Bombay. There must be first of all “movements or encampment”, secondly, the movements or encampment must be “of any gang or body of persons”, and such movements or encampment should be shown to be “causing or calculated to cause danger or alarm, or a reasonable suspicion that unlawful designs are entertained by such gang or body or by any member or members thereof”. The movements or encampment should be shown to be such as might cause alarm to the city. Even where it is shown that all or some of the members of a gang cause alarm, you can only turn out the whole gang. The section places extraordinary powers in the hands of one individual. It should, therefore, be construed very strictly. If the Commissioner of Police can of his own motion deport a British subject from one province to another, the order passed by him should be covered by the section.
  • The present order is not within the scope of s. 27. It is an order which the Police Commissioner had no power to make under the section. There is nothing to show that the requirements of the section were complied with in this case. The Commissioner of Police probably gave the semblance of a hearing to the accused, and had the blanks in a readymade cyclostyled form filled in and served on the accused. Refers to Emperor v. Anna Vithoba(1) and Emperor v. Gulabdin Pathan.(2)
  • The accused here was never put up before the Court. He did not defy the order. He first applied through his advocate to the Commissioner of Police to permit him to return. He did not succeed. With a view to test the order, he returned to Bombay, and walked straight to the police-station.
  • M.C Setalvad, Advocate General, with P.B Shingne, Government Pleader, and C.M Eastley, Public Prosecutor, for the Crown. Section 27 of the City of Bombay Police Act, 1902, makes the Commissioner of Police the sole judge of certain facts to enable him to make the order. This is clear from the opening words of the section “Whenever it shall appear to the Commissioner of Police”. The Commissioner of Police is a public officer and may be expected to act reasonably. He has above him officers of superior rank. It is necessary to give wide powers to an individual. He is the sole arbiter of the facts justifying the order. On any other view, whenever an order is passed by the Commissioner of Police the Court will peer into the order and the materials behind it.
Judges
  • Sir John Beaumont, C.J
  • Mr. Rangnekar
  • Mr. N.J Wadia
  • Mr. Wassoodew, JJ.
Acts
  • s. 72 of the Government of India Act, 1915 (5 & 6 Geo. V c. 61).
  • s. 27 the provisions of s. 46 of Bombay Act IV of 1890
  • s. 128.Section 27(1) of the City of Bombay Police Act
  • 201. Section 128 of the City of Bombay Police Act
  • s. 128 of the City of Bombay Police Act, 1902,
  • s. 17 of Bombay District Municipal Act, 1873.
  • s. 72 of the Government of India Act, 1915,
  • s. 3(20) of the General Clauses Act, 1897,
  • s. 128 of the City of Bombay Police Act,
  • s. 28 of the City of Bombay Police Act,
  • s. 27 of the City of Bombay Police Act,
  • s. 72 of the Government of India Act
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Attorney(S)
  • G.C O'Gorman, with A.R Gadhari and S.K Ambedkar, for the accused. The object of s. 27 of the City of Bombay Police Act, 1902, is to empower the Commissioner of Police to remove a gang of badmashes out of Bombay. There must be first of all “movements or encampment”, secondly, the movements or encampment must be “of any gang or body of persons”, and such movements or encampment should be shown to be “causing or calculated to cause danger or alarm, or a reasonable suspicion that unlawful designs are entertained by such gang or body or by any member or members thereof”. The movements or encampment should be shown to be such as might cause alarm to the city. Even where it is shown that all or some of the members of a gang cause alarm, you can only turn out the whole gang. The section places extraordinary powers in the hands of one individual. It should, therefore, be construed very strictly. If the Commissioner of Police can of his own motion deport a British subject from one province to another, the order passed by him should be covered by the section.
  • The present order is not within the scope of s. 27. It is an order which the Police Commissioner had no power to make under the section. There is nothing to show that the requirements of the section were complied with in this case. The Commissioner of Police probably gave the semblance of a hearing to the accused, and had the blanks in a readymade cyclostyled form filled in and served on the accused. Refers to Emperor v. Anna Vithoba(1) and Emperor v. Gulabdin Pathan.(2)
  • The accused here was never put up before the Court. He did not defy the order. He first applied through his advocate to the Commissioner of Police to permit him to return. He did not succeed. With a view to test the order, he returned to Bombay, and walked straight to the police-station.
  • M.C Setalvad, Advocate General, with P.B Shingne, Government Pleader, and C.M Eastley, Public Prosecutor, for the Crown. Section 27 of the City of Bombay Police Act, 1902, makes the Commissioner of Police the sole judge of certain facts to enable him to make the order. This is clear from the opening words of the section “Whenever it shall appear to the Commissioner of Police”. The Commissioner of Police is a public officer and may be expected to act reasonably. He has above him officers of superior rank. It is necessary to give wide powers to an individual. He is the sole arbiter of the facts justifying the order. On any other view, whenever an order is passed by the Commissioner of Police the Court will peer into the order and the materials behind it.
Judges
  • Sir John Beaumont, C.J
  • Mr. Rangnekar
  • Mr. N.J Wadia
  • Mr. Wassoodew, JJ.
Acts
  • s. 72 of the Government of India Act, 1915 (5 & 6 Geo. V c. 61).
  • s. 27 the provisions of s. 46 of Bombay Act IV of 1890
  • s. 128.Section 27(1) of the City of Bombay Police Act
  • 201. Section 128 of the City of Bombay Police Act
  • s. 128 of the City of Bombay Police Act, 1902,
  • s. 17 of Bombay District Municipal Act, 1873.
  • s. 72 of the Government of India Act, 1915,
  • s. 3(20) of the General Clauses Act, 1897,
  • s. 128 of the City of Bombay Police Act,
  • s. 28 of the City of Bombay Police Act,
  • s. 27 of the City of Bombay Police Act,
  • s. 72 of the Government of India Act
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an appeal against the conviction of the appellant under s. 128 of the City of Bombay Police Act, 1902, for returning to Bombay within two years of removal under s. 27. The Chief Presidency Magistrate convicted the appellant and imposed a fine of Rs. 201.

Relevant factual chronology (as stated in the opinion):

  • The appellant lived in Bombay 1910–1920 and then again associated with Pathan groups in the 1920s–1930s.
  • An order under s. 27 expelled the appellant from Bombay on July 31, 1930, for two years. He returned after expiry and a serious assault occurred in 1934 (no offence proved against appellant), and a further expulsion order was made on March 8, 1934 for two years (validity not challenged).
  • In March 1936 the appellant returned to Bombay and was warned to be of good behaviour and then returned to his native place. In April 1936 he returned again and sought appointment as sarang; disputes about leadership ensued.
  • On November 2, 1936 a further order under s. 27 expelled the appellant and two others from Bombay; it is this order whose breach formed the basis of the prosecution resulting in the conviction now on appeal.

The principal procedural question raised on appeal was whether the Magistrate (or Court) hearing a prosecution for breach of an order under s. 27 can inquire into the validity of that order and, if so, what party bears the burden of proof and what standard applies.

Legal Issues Presented

  1. Whether, when a prosecution is brought for breach of an order purportedly made under s. 27 of the City of Bombay Police Act, a Court may inquire into the validity of the order and the materials on which the Commissioner of Police acted.
  2. What is the proper allocation of burden of proof in such prosecutions — whether the prosecution must prove that there was material before the Commissioner to justify the order, or whether the accused must show the order was invalid.
  3. What procedural safeguards are required before an order under s. 27 is treated as valid for the purpose of imposing penal liability under s. 128 (in particular, whether the accused must be informed with sufficient particularity and given opportunity to answer).
  4. Whether s. 27 confers upon the Commissioner of Police an absolute, non-justiciable discretion (i.e., the Commissioner as sole judge) or whether the Court may review for absence of evidence, caprice or arbitrary exercise.

Arguments of the Parties

Advocate General / Prosecution

  • Argued that under s. 27 the Commissioner of Police alone is to be satisfied; if the Commissioner affirms satisfaction and makes an order under s. 27, no Court can question such order.
  • Accepted that an order under s. 27 is executive and not subject to appeal or revision, but argued that the Commissioner must be the final judge of satisfaction under the section.
  • Contended that, if a Court may inquire, then once the Commissioner produces an order which on its face purports to be under s. 27, the burden shifts to the accused to show the order was invalid.
  • Maintained that, if burden rests on prosecution, it had been discharged in this case by the evidence called (in particular, testimony from the inquiring officer and the Commissioner that he was satisfied).

Appellant

  • Contended that the order dated November 2, 1936, purportedly made under s. 27, was not justified by the terms of that section and therefore the appellant's removal was not under s. 27, absolving him of liability under s. 128.
  • Challenged whether there was any material before the Commissioner on which he could reasonably be satisfied that the case fell within s. 27.

Other Relevant Positions / Judicial Comment

  • One judicial voice (Rangnekar, J.) maintained that the Commissioner as executive officer is the sole judge under s. 27 and that the Court should not substitute its view for that of the Commissioner; he treated prior case law (Anna Vithoba) as wrongly decided and placed the onus on the accused to show the order was arbitrary or beyond the section.
  • Another judicial voice (Beaumont, C.J.) held that while the Commissioner must be the person satisfied in substance, when penal consequences follow a breach, it is incumbent upon the Magistrate to be satisfied (a) that the accused was informed with sufficient particularity and given an opportunity to answer and (b) that there was material before the Commissioner on which he could properly have held that s. 27 conditions were met; Beaumont, C.J. placed the burden of proof on the prosecution to satisfy the Court as to the order's validity.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bhagat Singh v. The King-Emperor Viscount Dunedin's statement that where statute says the Governor-General "may" in emergency promulgate ordinances, the Governor-General is the judge of emergency and alone can promulgate. Used by Rangnekar, J. to analogize s.72 (Govt. of India Act) to s.27: to support the proposition that s.27 makes the Commissioner the sole judge whose opinion is a sufficient basis for action.
Emperor v. Chanappa Shantirappa Held under s.72 that Courts can inquire whether there was evidence upon which the Governor-General might reasonably conclude an emergency existed. Cited to contrast with s.27: Rangnekar, J. noted Chanappa Shantirappa allowed Court inquiry into existence of evidence, but said s.27's wording is stronger and not open to such examination.
Emperor v. Anna Vithoba…Accused Held that when an executive officer makes an order and penalty is sought to be enforced for breach, it becomes the duty of judicial authority to consider whether the order is properly made; suggested Court may examine whether sufficient evidence supported the executive order. Rangnekar, J. criticized this decision as incorrect and said it wrongly substitutes the Court's decision for the Commissioner's; Beaumont, C.J. however relied on it as authority that Magistrates must be satisfied the conditions of s.27 were observed.
In re Tarabai Decision under s.28 of the City of Bombay Police Act (different wording from s.27). Rangnekar, J. said this decision is a correct exposition of s.28 but not a guide to s.27 and thus wrongly relied upon in Anna Vithoba's case for s.27 matters.
Emperor v. Bhalchandra Trimbak Ranadive Case arising under s.23(3) of the Act — a provision conferring discretion (i.e., different statutory language and scheme from s.27). Rangnekar, J. observed the case dealt with a discretionary provision and therefore does not support propositions about s.27 being non-justiciable.
Nagar Valab Narsi v. The Municipality of Dhandhuka Principle that public bodies are generally to be judges of matters, but Courts may intervene if there is manifest abuse of power (applied with reference to interpretation of municipal statute). Rangnekar, J. said that principle applies to public bodies but not where statute makes a high functionary the sole arbiter; thus it was not applicable to s.27.
Duke of Bedford v. Dawson Case relating to acquisition of lands and Lands Clauses Act; used for the principle about public bodies' judgments and court intervention for manifest abuse. Rangnekar, J. noted it concerned public bodies and had no application to the special sole-arbiter context of s.27.
Emperor v. Gulbadin Pathan Division bench discussion that s.27 has a limited application; s.23–s.29 are "Special Orders" for temporary emergencies. Beaumont, C.J. relied on that division-bench observation to stress that s.27 is of limited scope and its foundation is the movements or encampment of a gang or body of persons.

Court's Reasoning and Analysis

The opinion records two approaches by two judges and synthesizes statutory language, precedents and the evidence presented at trial.

Rangnekar, J. — Reasoning (as recorded)

  • Emphasized the literal and purposive force of the phrase in s.27: "Whenever it shall appear to the Commissioner of Police …" — this wording makes the Commissioner the sole judge whose opinion suffices for action under the section.
  • Compared the wording with other sections (s.23–s.29) where the Commissioner "may" do things (discretion), and with s.72 of the Government of India Act and Bhagat Singh case to show analogy with an executive sole-judgment power.
  • Criticized Emperor v. Anna Vithoba as wrongly decided for treating judicial authority as substitutable for the Commissioner's decision; contended the proper interpretation places the burden on an accused challenging the order to show it's beyond the scope of the section or that the statutory standard has not been reached.
  • Held that once the prosecution produced the order and proved it was under s.27, the accused must show arbitrariness or caprice; Rangnekar, J. accepted the production of evidence by way of testimony from the inquiring officer and the Commissioner that the Commissioner was satisfied.
  • Concluded there was sufficient evidence (in his view) — including the Commissioner’s oath and the inquiring officer's testimony — and that the term "movements" encompassed "actions, activities or doings" so that the record showed activities; therefore the exercise of power was not arbitrary.

Beaumont, C.J. — Reasoning (as recorded)

  • Accepted that s.27 confers executive power on the Commissioner and that the Commissioner must be the person satisfied, but rejected the proposition that the order is immune from judicial inquiry when breach is prosecuted.
  • Found the proposition that the Commissioner could banish anyone without evidence or hearing to be unacceptable; relied on statutory context and the limited purpose of the "Special Orders" (s.23–s.29) to show s.27 has limited application (foundation is movements or encampment of a gang or body).
  • Held it is incumbent upon the Magistrate (when a prosecution for breach is heard) to be satisfied on two points: (a) that the accused was informed with sufficient particularity of the charge and given an opportunity to answer, and (b) that there was material before the Commissioner on which he could properly hold that s.27 conditions were satisfied.
  • Placed the burden of proof on the prosecution to satisfy the Court that the order alleged to have been disobeyed was valid.
  • Analyzed the evidence: the inquiring officer (Inspector) reported complaints and made a report which was placed before the Deputy Commissioner and then the acting Commissioner (Mr. Rowland), but the report itself was not produced; the Commissioner testified that he told the accused the general nature of the charge and examined him but did not read the evidence aloud.
  • Concluded that while procedure before the Commissioner was not unfair, there was no evidence before the Magistrate to show the accused had been removed under s.27: the Commissioner did not produce the report, did not describe the material before him, and the order's recital suggested membership of a larger gang though the Commissioner’s testimony suggested only the three accused were put up before him.
  • Accordingly, Beaumont, C.J. found the prosecution had not shown that a valid order under s.27 had been made and that conviction could not stand.

Holding and Implications

Holding: The appeal was allowed; the conviction of the accused was set aside and the fine (if paid) ordered to be refunded. The formal statement in the opinion reads: "Conviction set aside."

Implications and direct consequences (as expressed in the opinion):

  • The Magistrate hearing a prosecution for breach of an order under s.27 must be satisfied (a) that the accused was informed with sufficient particularity of the charge and given an opportunity to answer, and (b) that there was material before the Commissioner on which he could properly have held that the conditions of s.27 were met.
  • The Court is entitled to inquire into the validity of an order when penal consequences follow; the prosecution bears the burden of proving that the order was valid and that there was material before the Commissioner to justify it.
  • On the facts of this case the prosecution failed to discharge that burden because the report on which the Commissioner purportedly acted was not produced and the Commissioner did not describe the nature of the material before him; therefore the conviction could not be sustained.
  • This decision directly affects the parties: the appellant's conviction was quashed and any fine refunded. The Court articulated procedural safeguards but did not purport to lay down an abstruse new doctrine beyond requiring judicial scrutiny in prosecutions for breach of executive orders under s.27.
Order: Conviction set aside. Fine refunded if paid.

Note: This summary is confined to the materials and statements contained within the provided opinion and does not add facts or inferences beyond what the opinion explicitly records.

Prepared from the opinion as reported in the supplied text (Rangnekar, J. and Beaumont, C.J. opinions, with references to earlier authorities and to the relevant sections of the City of Bombay Police Act, 1902).

Show full summary ...

    Emperor v. Yarmahomed Ahmedkhan

    [Rangnekar, J.:—

    The moment some one challenges the order the Court has jurisdiction to look into the order.]

    The Court then is doing something which the section does not entitle it to do. The Court will be substituting its own view in the place of the view of the Police Commissioner.

    The order complained of opens with a solemn statement: “Whereas it appears to me … Commissioner of Police,” i.e as the executive or administrative officer. The requirement of the section is that the Commissioner of Police should be satisfied, not that the Court should be satisfied. If the Commissioner is satisfied, his judgment is final and is not open to inspection by the Court.

    The plain intendment of s. 27 becomes clear when its language is contrasted with the language employed in other sections of the same chapter. The Commissioner “may” do one thing or the other in giving directions to the public under s. 23, or for prevention of riot, etc., under s. 24, or for maintenance of order at religious ceremonials under s. 25, or to prevent disorder at places of public amusement under s. 26, or for destruction of stray dogs under s. 29 or of suffering and unfit animals under s. 29A. In these cases, discretion is given to the Commissioner of Police. The language of s. 27 shows that the Commissioner is made the sole judge.

    This becomes clear when the section is compared with s. 72 of the Government of India Act, 1915 (5 & 6 Geo. V c. 61). The words of the section are: “The Governor-General may, in cases of emergency, make and promulgate ordinances.” In construing the above words Viscount Dunedin said in Bhagat Singh v. The King-Emperor (pp. 171-72): “That raises directly the question who is to be the judge of whether a state of emergency exists…. It connotes a state of matters calling for drastic action, which, is to be judged as such by some one. It is more than obvious that some one must be the Governor-General, and he alone. Any other view would render utterly inept the whole provision. Emergency demands immediate action, and that action is prescribed to be taken by the Governor-General. It is he alone who can promulgate the Ordinance.” Before the Privy Council decided Bhagat Singh's case, our High Court held in Emperor v. Chanappa Shantirappa that under s. 72 of the Government of India Act, 1915, the question whether an emergency exists or not to promulgate an ordinance is one of fact which the Courts can inquire into but all that the Courts can do is to enquire whether there was evidence upon which, the Governor-General might reasonably conclude that an emergency existed. The words employed in s. 27 are stronger: “Whenever it shall appear to the Commissioner of Police”. The opinion formed by the Commissioner is a sufficient basis for an action under the section. As the Governor-General is charged by s. 72 to judge of emergency as regards “peace and good government”, so s. 27 gives the Commissioner of Police, who is responsible for the peace of the city of Bombay, the absolute power to decide whether he should take action under the section. The legislature may have advisedly given him such powers. Under the wording of the section the judgment of the Commissioner is the sole basis of the order. He has to apply his mind to three points: (1) whether there is a gang or body of persons, (2) what are its movements or encampment; (3) whether it is causing or calculated to cause danger or alarm or a reasonable suspicion that unlawful designs are entertained by it. It is the Commissioner and he alone who has to form an opinion on the above points. That opinion is not open to examination by the Courts.

    [Rangnekar J. The Court has got to see whether the order is passed under s. 27 and the next question is whether there is evidence to support the order.]

    I submit that in the latter case the Commissioner of Police is entitled to rely on the order itself. The fact that here the question has arisen on a breach of the order makes no difference. Even in the cases on s. 72 of the Government of India Act the question arose on account of breaches of the order or law promulgated.

    I submit further that the case of Emperor v. Anna Vithoba…Accused. is incorrectly decided. It lays down that when an executive officer makes an order or issues a notification and an attempt is made to enforce the exaction of a penalty against a person committing a breach of such order or notification, it becomes the duty of judicial authority to consider whether the order is properly made. This is entirely wrong. It is tantamount to saying that you should substitute the decision of the Court in place of the decision of the Police Commissioner. It must mean, whether there is sufficient evidence before the Magistrate to justify the order passed by the Commissioner. This is much beyond the section.

    [Beaumont C.J The point is that there must be some material before the Commissioner of Police to justify the order made by him.]

    There is no warrant for this intermediate position.

    The reasoning on which Anna Vithoba's case proceeded is erroneous. The cases referred to at p. 1166 really do not bear out the conclusion which Patkar, J. has drawn emperor from them. The first case of In re Tarabai was a case under s. 28 of the City of Bombay Police Act, the wording of which differs materially from that of s. 27. The decision is a perfectly good decision on s. 28, and is no guide to cases under s. 27. It is wrongly relied on by Patkar, J. The second case is that of Emperor v. Bhalchandra Trimbak Ranadive. It was a case arising under s. 23(3) of the Act, which again differs from s. 27. The case under s. 23(3) is one of discretion. The question is whether what is conferred by s. 27 is a matter of discretion or a power to be the sole judge. Under it, it must appear to the Commissioner of Police as an executive officer, and not as a judicial officer. The case of Nagar Valab Narsi v. The Municipality of Dhandhuka(3) is the third case referred to. It refers to the interpretation of the word “street” as used in s. 17 of Bombay District Municipal Act, 1873. The principle there laid down and derived from Duke of Bedford v. Dawson(4) is: “Public bodies are to be the judges, subject to this, that if they are manifestly abusing their power … the Court will say it is not a fair and honest judgment, and will not allow it.” This may be true of public bodies; but it does not apply where a high functionary is made the sole arbiter. The case of Duke of Bedford v. Dawson was next referred to. It was a case of acquisition of lands and dealt with the Lands Clauses Act. It also was a case of public bodies, and has no application to a case under s. 27.

    Even assuming that Anna Vithoba's case(5) is correctly decided, the burden of proof that the order is wrongly made rests on the accused. It was laid down by Murphy, J. (p. 1168): “The expressions ‘it shall appear……are calculated’ and ‘a reasonable suspicion that unlawful designs are entertained’ obviously lay down a standard for the basis of such an order, far short of proof, though more than bare suspicion, and it must lie on anyone who challenges such an order to show, either that the order complained of was beyond the scope of the section, or that the standard laid down by the section has not been reached.” This burden of proof is not discharged by the accused here. There is no reason to assume that the Police Commissioner has not acted bona fide. The presumption is that he has acted in the bona fide discharge of his duties. The expression “good faith” is denned, in s. 3(20) of the General Clauses Act, 1897, as “a thing shall be deemed to be done in ‘good faith’ when it is in fact done honestly, whether it is done negligently or not”. The prosecution have proved that the order is passed under s. 27 by producing the order. It is then for the accused to show that it is arbitrary or capricious.

    Finally, assuming for a moment that it is on the prosecution to prove that there was evidence before the Commissioner of Police, we have discharged that onus by examining the inquiring officer as well as the Police Commissioner in Court. The Commissioner has stated on oath that he was satisfied on the three essential requisites of s. 27 before he made the order.

    The term “movements” according to Murray's Dictionary means “actions, activities or doings”. There is sufficient evidence on the record to show that there were activities. The Court has only to be satisfied whether there was material before the Police Commissioner on which he could take action. It is not for the Court to examine the validity of the materials. Taking the evidence of the inquiring officer and the Police Commissioner, it cannot be said that there has been an arbitrary exercise of the power.

    O'Gorman was not heard in reply.

    Beaumont, C.J:—This is an appeal against the conviction of the appellant under s. 128 of the City of Bombay Police Act, 1902, by the Chief Presidency Magistrate, who imposed a fine of Rs. 201. Section 128 of the City of Bombay Police Act provides:—

    “Whoever, within two years from the date of his removal under the provisions of s. 27, returns to any place within the City of Bombay, without the permission in writing of the Commissioner of Police, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”

    The appellant admits that on November 2, 1936, an order was made by the Commissioner of Police purporting to act under s. 27 of the City of Bombay Police Act, under which the appellant was removed from Bombay. He further admits that he returned to Bombay within two years from the date of such removal; but he contends that the order which the Commissioner of Police purported to pass under s. 27 of the Act was not justified by the terms of that section, that the appellant's removal was not, therefore, under the provisions of s. 27, and that he is not liable to punishment under s. 128.

    Section 27(1) of the City of Bombay Police Act is in these terms:—

    “Whenever it shall appear to the Commissioner of Police that the movements or encampment of any gang or body of persons in the City of Bombay are or is causing or calculated to cause danger or alarm, or a reasonable suspicion that unlawful designs are entertained by such gang or body or by any member or members thereof, or that an outbreak of epidemic disease is likely to result from the continued residence in the City of large numbers of pauper immigrants, the Commissioner of Police may, by beat of drum or otherwise as he thinks fit, direct the members of such gang or body or such immigrants, so to conduct themselves as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to disperse and remove themselves to such place or places, by such route or routes, and within such time, as the Commissioner of Police shall prescribe.”

    The scope of the power vested in the Commissioner under that section was discussed by a division bench of this Court in Emperor v. Gulbadin Pathan and it was there pointed out that the section is of very limited application. The section is one of a group of sections, extending from s. 23 to s. 29 (both inclusive), which are headed “Special Orders” and which confer upon the Commissioner of Police power to deal with various emergencies so as to secure the public safety, and the orders to be made by the Commissioner under those sections are mainly of a strictly temporary character. Apart from s. 27, the only power of externment which is given to the Commissioner is under s. 28, which has since been repealed and re-enacted in another Act, under which a prostitute may be expelled from Bombay, but any such order of expulsion is subject to the approval of the Governor-in-Council. It is clear from the language of s. 27 that the foundation for any order under the section is the movements or encampment of any gang or body of persons. Before any action can be taken under that section it must appear to the Commissioner that the movements or encampment of a gang or body of persons are or is causing or calculated to cause danger or alarm, or a reasonable suspicion that unlawful designs are entertained by such gang or body or by any member or members thereof; then only can the Commissioner give directions to the members of the gang or body. The Commissioner has no power under the section to deport anyone whom he regards dangerous or undesirable character apart from his actions as a member of a gang or body of persons moving or encamping in the city.

    The facts established in this case are that the appellant was a resident in Bombay from 1910 to 1920, during which period he worked for the P. & O. Company. From 1920 to 1930 he was a sarang of the Chhachi Pathans, who were employed by the P. & O. Company and other shippers. In the year 1930, one Khan Saheb Abdul Kudus Khan was appointed by the P. & O. Company a sarang both of the Chhachi and Peshawari Pathans, and this appointment may well have annoyed the appellant. On July 31, 1930, an order was made by the Commissioner of Police purporting to act under s. 27 expelling the appellant from Bombay for a period of two years. After the expiration of such period the appellant returned to Bombay; and in the year 1934 a serious assault was committed on Khan Saheb Abdul Kudus Khan, but no offence in respect thereof was proved against the appellant. On March 8, 1934, a further order was made by the Commissioner of Police against the appellant under s. 27 expelling him from Bombay for a further period of two years. The validity of the orders of 1930 and 1934 was not challenged, and it is irrelevant to consider whether they were validly made. In March, 1936, the appellant again returned to Bombay, and the Commissioner warned him to be of good behaviour, and thereupon he again returned to his native place. In April, 1936, Kudus Khan resigned, and the Chhachi Pathans in Bombay elected the appellant as their leader, and he returned to Bombay and applied to the P. & O. Company to appoint him sarang of the Chhachi Pathans. However, the P. & O. Company appointed one Mahroopsha, a Peshawari, to be sarang both of the Peshawari and Chhachi Pathans. On November 2, 1936, a further order was made by the Commissioner under s. 27 expelling the appellant and two others from Bombay, and it is that order which is called in question. The appellant maintains that it is not shown that there was any material before the Commissioner of Police on which it was possible for him to be satisfied that the case fell within s. 27; and the main question on this appeal relates to the powers of the Court to deal with an order purporting to have been made under s. 27 of the City of Bombay Police Act.

    It is argued by the Advocate General in the first place that under s. 27 it is the Commissioner, and the Commissioner alone, who is to be satisfied, and that if the Commissioner affirms that he is satisfied as to the matters referred to in the section and thereupon makes an order under the section, no Court can question such order. It may be conceded that an order made under s. 27 is an order made by an executive officer, and is not subject to appeal or revision in any Court. But it is a very different matter to affirm that when an attempt is made to impose a penalty for breach of an order made under the section, the validity of the order cannot be impeached. The learned Advocate General admitted that the logical consequence of his argument must be that the Commissioner can banish anyone from Bombay, without a particle of evidence against him, without preferring any charge and without hearing him, merely by affirming that the Commissioner is satisfied that the case falls within s. 27. This is really a reductio ad absurdum. The Advocate General maintains that it is in the interests of the public that the Commissioner of Police should have wide powers of expelling persons whose actions are likely to be a danger to the public, and that the safeguard against any abuse of that absolute power lies in the sense of responsibility of the Commissioner. In relation to the latter argument it must be borne in mind that the Commissioner does not inquire into these cases himself; he deputes for such enquiry some subordinate police-officer, whose sense of responsibility may not be as high as his own; and whose impartiality may not be beyond question. In relation to the former argument the language of s. 27, as we have pointed out, shows that the legislature did not intend to give to the Commissioner of Police any general power to banish dangerous characters; and it is relevant to the argument of the Advocate General, though not to the construction of the Act, to point out that in the statement of objects and reasons for the Act published in the Bombay Government Gazette of January 31, 1902, it is stated that in s. 27 the provisions of s. 46 of Bombay Act IV of 1890 have been modified so as to give the Commissioner of Police power to control the influx of famine refugees or other immigrants whose presence may involve risk to health or property. The legislature has provided in Chapter VIII of the Criminal Procedure Code methods by which a dangerous character, who has not committed any actual offence, may be controlled, and it is open to the Commissioner of Police to initiate proceedings under that Chapter. We need hardly point that power to banish a person who has committed no offence from the city where he has been residing for many years, to break up his home and destroy his business, without any trial and solely at the discretion of an executive officer, is one which no civilised legislature is likely to grant. In our opinion, it is a well established principle that where an Act of Parliament confers upon an authority power to make an order in certain conditions, and it is sought to impose a penalty for breach of an order made by the authority, it is incumbent upon the Court hearing the charge to consider whether the order was properly made and to be satisfied on two points: first, that the authority has acted reasonably and not capriciously or oppressively; and, secondly, that the conditions imposed by the statute have been observed. This principle was acted upon by a division bench of this Court in relation to an order made under s. 27 of the City of Bombay Police Act in Emperor v. Anna Vithoba…Accused.. In all charges before a Magistrate under s. 128 of the City of Bombay Police Act, it is, in our judgment, incumbent upon the Magistrate to be satisfied, first, that the accused was informed by the Commissioner of the charge against him with sufficient particularity to enable him to answer the charge, and that he was given an opportunity of so answering; and, secondly, that there was material before the Commissioner of Police on which he could properly hold that the conditions of s. 27 had come into operation. It is quite true that it is for the Commissioner to be satisfied, and not for the Court. All that the Court can do is to see that there was material before the Commissioner on which he could properly be satisfied. If in any such proceedings the Commissioner claims privilege for any document on which he acted, the Court will have to consider such claims; but, in any event, we can see no reason why the Commissioner should not give evidence before the Court as to the general character of the material which he had before him.

    The second argument of the Advocate General was that, assuming that it was open to the Court to question the order, then as soon as the Commissioner produced an order purporting on the face of it to have been made under s. 27, the burden was on the accused to show that the order was invalid. This is to reach the same result by another route and to make it impossible to challenge the order, because the accused person cannot know what material the Commissioner had before him unless the Commissioner chooses to disclose the nature of such material. In our opinion, the burden is upon the prosecution to satisfy the Court that the order alleged to have been disobeyed was a valid one.

    The third argument of the Advocate General was that if the burden did rest upon the prosecution to prove that the order was valid, such burden was discharged. It is necessary, therefore, to notice the relevant evidence which was before the learned Chief Presidency Magistrate.

    The first witness called was Mahomed Hayat Mahomed Aslam, Police Inspector in charge of the Pathan Branch. He is a Peshawari, and it may be noted in passing that the accused questioned his impartiality in relation to any dispute between the Chhachis and the Peshawaris. The evidence of the witness was that after the return of the accused to Bombay in April 1936, complaints were received against the accused by the Commissioner of Police that he was stirring up trouble among the Chhachi Pathans and that he contemplated an assault on Mahroopsha. The witness was deputed to enquire into the matter, which he did, and he made a report against the accused and three others. The report was placed before the Deputy Commissioner and subsequently before Mr. Rowland, the then acting Commissioner of Police, who heard the accused in the presence of the witness. It is apparent from that evidence that all that the Commissioner of Police had before him was a report of the witness, and that report has not been produced. In the absence of that report it is impossible for the Court to say from the Inspector's evidence that the Commissioner of Police had any material before him on which he could have arrived at the conclusion that the conditions of s. 27 had been brought into play. On the face of it is difficult to suppose that a man who had lived in Bombay for twenty years was a member of a gang whose movements or encampment were causing alarm.

    The only other material witness was Mr. Rowland, the acting Commissioner, who was called as a witness by the Court. His evidence was that before passing the order he told the accused the general nature of the charge against him and asked him whether he had anything to say in answer, but he did not read to him the evidence. On the evidence of the Commissioner we think that there is no ground for holding that the procedure was unfair. The Commissioner in our opinion was not bound to disclose the evidence which he had. We think the expression used by the Commissioner “He was told generally what the allegations were” is rather vague. The accused should always be given as many particulars as possible. However, the Commissioner cannot be expected to remember exactly what he said on the occasion in question, and we accept his evidence that the appellant was told the charge and was examined in his defence.

    There is, however, nothing in the Commissioner's, evidence to suggest that the case was brought within s. 27. He did not produce the report on which he acted; nor did he give any evidence whatever as to the nature of the material which he had before him. His order recites that “the undermentioned persons” —that is, the accused and two others,— “are members of a gang whose movements are calculated to cause danger and alarm, or a reasonable suspicion that unlawful designs are entertained by such gang or body or by a member or members thereof.” That recital clearly suggests that the three accused persons were members of a larger gang, and not that they themselves constituted a gang. But the Commissioner in his evidence says: “This gang was put up before me,” referring apparently only to the three accused before him. In our judgment, there was no evidence before the Chief Presidency Magistrate that the accused had been removed under the provisions of s. 27, since the evidence failed to establish that any valid order had been made under that.

    The appeal, therefore, must be allowed, the conviction of the accused set aside, and the fine, if paid, refunded.

    Conviction set aside.
    J.G.R
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