STATE OF MAHARASHTRA Vs. FUNDAN LAKHANMAL

JUDGEMENT

(1.) These two matters raise a common question about the validity of S. 124 of the Bombay Police Act, 1951, and the question arises in this way.

(2.) On the 10th of June, 1955 at about 6-30 P. M. four accused persons were believed to be in possession of "takas" of 251 1/2 yards of cloth worth in all Rs. 503/- on a public thoroughfare near barrack No. 826, Section No. 17, Kalyan Camp No. 3, Ulhasnagar. The Police became suspicious, and when they saw the accused persons, they approached them. On being approached, the accused failed to account for their possession. It was alleged that under those circumstances, they had contravened S. 124 of the Bombay Police Act, 1951. The facts were explained to the accused and they were asked as to what they had to say about the facts alleged against them. In reply, they stated that they did not admit the facts as alleged against them. At this stage, their Advocate intervened and he contended that the did not admit the facts as alleged against them. At this stage, their Advocate intervened and he contended that the prosecution under S. 124 was ultra vires the Indian Constitution. The learned Magistrate, before whom the accused persons were put up for trial, was of the opinion that the case, he was dealing with, raised a question about the validity of S. 124, which, according to him, militated against Art. 20 (3) of the Indian Constitution. He said that the determination of the question was necessary for the disposal of the case. He was of the opinion that S. 124 of the Bombay Police Act was void, invalid and inoperative, and, as according to him, the question had not been previously raised before this Court, he was inclined to make a reference to this Court through the Sessions Judge, Thana. The learned Sessions Judge, accordingly, has therefore submitted the record and proceedings in the case in order that this Court may decide the question.

(3.) In Criminal Application No. 496 of 1957, the facts are these. Two persons including one Saduram, who is the applicant in this application, were charge-sheeted, the allegation against them being that they, at Bombay on the 18th of June, 1956, were found in possession of two gunny bags containing scrap, lead, copper wire, white wire and scrap brass collectively valued at Rs. 300/-, which was reasonably believed to be stolen property and for which they could not account satisfactorily and so they had committed an offence punishable under Section 124. Saduram has, therefore, applied under Article 226 of the Constitution challenging the legality of his prosecution for an offence under Section 124.