RAMESHCHANDRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal against the order passed by the learned Presidency Magistrate 16th Court, Esplanade, directing that the appellant should be bound over in the sum of Rs. 100 for six months. This order came to be passed in this way. On 7-71954, an order was passed against the appellant externing him from the limits of Greater Bombay. This order was passed under Section 57, Bombay Police Act, 22 of 1951. Contrary to this order, and in violation of it the appellant returned to Greater Bombay on 4-11-1954. Thereupon he was arrested and for committing the breach of the order he was charged before the learned Magistrate under Section 142 of the main Act. The appellant urged before the learned Magistrate that he had deliberately violated the order because he wanted to test the validity of the externment order. The validity of the order was challenged by him on several grounds. The learned Magistrate was not disposed to accept any of those grounds. That is why he convicted the appellant of the offence under Section 143; but in view of the fact that the appellant had returned to Bombay solely for the purpose of testing the validity of the externment order, the learned Magistrate took a lenient view of his conduct and directed that he should be bound over in the sum of Rs. 100 for six months.

(2.) The main ground on which the validity of this order had been challenged before us by Mr. Dalal on behalf of the appellant is that the order purports to subject the appellant to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence and thus is inconsistent with the provisions of Article 20, Clause (1), of the Constitution of India. When the present order of externment was passed against the appellant, notice had been issued to him as required by Section 59, Bombay Police Act, 1951, and in this notice his attention was pointedly invited to his eight previous convictions. The last of these convictions was recorded against the appellant on 8-5-1952, and it appears that this conviction was recorded against him in Case General Branch C.I.D. No. 248 of 1950. Mr. Dalal contends that these dates show that the offence for which he was convicted last had been committed in 1950. In 1950 the City of Bombay Police Act which was in force was Bombay Act 4 of 1902. Section 27 in the said Act corresponds to Section 57 in the present Act, and under Section 27, Sub-section (2A), it was provided that an order of externment could be passed in respect of persons convicted of certain offences. But the power to pass an order of externment in respect of offenders mentioned in Sub-section (2A) of Section 27 was not available where the offenders happened to be persons who were born in Creator Bombay. In other words, it is clear that, for the offences which have been held proved against the appellant in all the eight cases to which I have just referred, Section 27 of Bombay Act 4 of 1902 could not have been invoked and the appellant could not have been externed from Greater Bombay. The provision excepting persons born in Greater Bombay from the operation of Section 27 came to be included in Section 27 itself by the amending Act 21 of 1933 and it was in force at the time when the last offence was committed by the appellant in 1950, In 1951, however, the Bombay Police Act 22 of 1951 was enacted and it came into force on 1-8-1951. Section 57 under which proceedings were taken against the appellant corresponds substantially with Section 27 of the earlier Act; but the distinction which Section 27 of the earlier Act sought to make between persons born in Greater Bombay and others has been removed while enacting Section 57 in the present Act. The result is that, if a person is convicted of the offences mentioned in Section 57, Sub-sections (a), (b) and (c), and if the further requirements of the said section are satisfied, art order of externment can be passed against him even though he may be born in Greater Bombay. That is how the order of externment was passed against the appellant by the Commissioner of Police, Greater Bombay. The argument on, which the validity of the externment order is challenged is based on this change of the law. The appellant could not have been externed despite his record of eight previous convictions under the provisions of Section 27 (2A) of the earlier Police Act. The penalty of externment could not have been imposed on the appellant under the provisions of the said Act, and if that is so, the said penalty cannot be imposed against him because that would be contrary to the provisions of Article 20, Clause (1), of the Constitution of India. That, in short, is the nature of the attack against the validity of the order of externment.

(3.) Article 20, Clause (1), of the Constitution of India, provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. In the present case, we are concerned with the latter part of Clause (1). The learned Magistrate has held that the order of externment cannot be said to constitute a penalty within the meaning of this clause and in support of his conclusion he has referred to the dictionary meaning of the word "penalty" found in Ballentine's Law Dictionary. According to this dictionary, "penalty" has been defined as