NAWABKHAN ABBASKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appeal before us raises a thorny issue of some importance which may be epigramatically expressed as when has the citizen the discretion to disobey an order When is a determination not a determination This riddle has to be solved in the foggy legal right of conflicting decisions and academic opinions, Indian and Anglo-American. To appreciate the contention urged in the case a few facts must be narrated.

(2.) Section 56 of the Bombay Police Act, 1951 (the Act, for short) empowers a Police Commissioner to extern any un-desirable person on grounds set out therein and the petitioner fell victim to such a direction issued on September 5, 1967. On contravention of that order he has prosecuted under Section 142 of the Act but was acquitted by the trial Court. The State appealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is whether the externment order having been quashed by the High Court under Article 226 of the Constitution on July 16, 1968 -- during the pendency of the criminal trial - it had become void ab initio and there being thus no quit order in law ther was no offence. The learned Judge rejected this effect of the writ issued under Article 226 and convicted the accused. His reasoning, invigorated by surgical imagery flowed thus:

(3.) Violation of natural justice is the vice of the order which was defied by the accused. We will first set out the relevant porvision in the Act and the ground of decision in the writ petition, shorn of unnecessary portions, Section 56 reads:-