KISHORI LAL Vs. STATE

JUDGEMENT

(1.) THESE are two connected references made to the High Court by a Magistrate, 1st Class, ferozepore, under Section 432 (1) of the Code of Criminal Procedure, In Criminal Revision No. 103 of 1954 Kishori Lal, petitioner, is a resident of Ferozepore Cantonment, where he possesses ancestral property. It is admitted that between the 25th of April 1951 and the 3rd of March 1952, kishori Lal petitioner was convicted under the Gambling Act, on five occasions; and these five convictions resulted in imposition of flues varying from Rs. 10/- to Rs. 50/- Section 238 of the cantonments Act (II of 1924) contemplates removal and exclusion from the cantonments of disorderly persons. For facility of reference Section 238 of Act II of 1924 is reproduced below:--"238 (1) -A Magistrate of the first class, having, jurisdiction in a cantonment, on receiving information that any person residing in or frequenting the cantonment-- (a) is a disorderly person who has been convicted more than once of gaming or who keeps or frequents a common gaming house, a disorderly drinking shop or a disorderly house of any other description, or (b) has been convicted more than once, either within the cantonment or elsewhere, of an offence punishable under Chapter XVII of the Indian Penal Code, or (c) has been convicted, either within the cantonment or elsewhere, of any offence punishable under Section 156 of the Army Act, or (d) has been ordered under Chapter VIII of the Code of Criminal Procedure, 1898, either within the cantonment or elsewhere, to execute a bond for his good behavior. May record in writing the substance of the information received, and may issue a summons to such person requiring such person to appear and show cause why he should not be required to remove from the cantonment and be prohibit ed from re-entering it. (2) Every summons issued under Sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the summons on the person against whom the summons is issued. (3) The Magistrate shall, when the person so summoned appears before him, proceed to inquire into the truth of the information received and take such further evidence as he thinks fit, and if, upon such inquiry, it appears to him that such person is a person of any kind described in sub-section (1) and that it is necessary or the maintenance of good order in the cantonment that such person should be required to remove therefrom and be prohibited from re-entering the cantonment, the Magistrate shall report the matter to the Officer Commanding the station, and, if the Officer Commanding the station, so directs, shall cause to be served on such person an order in writing requiring him to remove from the cantonment within such time as may be specified in the order and prohibiting him from re-entering it without the permission in writing of the Officer commanding ' the station. " on receipt of information, that the petitioner Kishori Lal was a disorderly person, having been convicted more than once of gaming, the Magistrate at Ferozepore, instituted an inquiry, and summoned Kishori Lal, to appear and show cause, why he should not be removed from the cantonment and be prohibited from re-entering it. The inquiry did not proceed to its termination, as the petitioner raised an objection, that the provisions of Section 238 of Act II of 1924 were in derogation of the fundamental rights as bestowed upon the petitioner as a citizen of India by article 19 (1) (d) and (e) of the Constitution of India. The petitioner maintains that under Article 19 (5), what is saved is the operation of any existing law, in so far as, it imposes a reasonable restriction on the exercise of any of the fundamental rights conferred by Article 19 (1), either in the interests of the general public, or, for the protection of the interests of any Scheduled Tribe. He maintains that Section 238 of the Cantonments Act transgresses the limits imposed by Article 19 (5), of the Constitution. The Magistrate in his order of reference has expressed the view, that section 238 of the Cantonments Act, is void, to the extent to which it permits the passing of an internment order on the category of person in which the petitioner falls, and it is in contravention of Article 13 (1) of the Constitution.

(2.) THE question which we are called upon to decide is, whether Section 238 of the Cantonments act of 1924 is yiolative of the constitutional guarantee contained in Article 19 (1) (d); and (e) and therefore deserves to be struck down.

(3.) BEFORE analysing the arguments, and examining the authorities, cited by the learned counsel in this case, in support of their respective contentions, it is proper, first to scrutinise, the provisions of Section 238 of the impugned Act. Before a citizen residing in any cantonment area, can be removed or excluded the following procedure has to be adopted:--Firstly,' it is necessary that an information is received by a Magistrate of the first class, to the effect, that any person residing in, or frequenting the cantonment, is a disorderly person, who has been convicted more than once of gaming or who keeps or frequents a common gaming house, etc. , etc. Secondly, the Magistrate, then, proceeds to record in writing; the substance of the information he has received to the above effect; thirdly, it is then for the Magistrate, to decide to issue a summons to such a person, with respect to whom the information has been received, requiring him to appear and show cause why he should not be removed from the cantonment and be prohibited from re-entering it; fourthly, along with the summons issued to such a person a copy of the record of the information received has also to be served on him; fifthly, when such a person so summoned appears before the Magistrate, he proceeds to inquire into the truth of the information, and he takes such evidence, as he may think fit; sixthly, the Magistrate has then to decide if such person falls within the definition of a disorderly person mentioned in Sub-section (1) of Section 238; seventhly, and if so he has further to determine,, whether it is necessary for the maintenance of good order in the cantonment, that such a person should be required to remove therefrom and be prohibited from re-entering the cantonment: eighthly, if on both questions he is of the view that such a person deserves to be removed or excluded from cantonment area, he then submits a report to the Officer Commanding the station making his recommendation; ninthly, it is then for the Officer Commanding the station to give directions on the report and if he so directs, then; tenthly, the Magistrate shall cause to be served on such person an order in writing requiring him to remove from the cantonment within such time as may be specified in the order, and further prohibiting him from reentering the cantonment without the permission in writing of the Officer commanding the station.