EMPEROR Vs. ANNA VITHOBA

JUDGEMENT

(1.) The accused in this case was deported by the Commissioner of Police on December 15, 1926, The order expired in 1928. Again, on June 3, 1930, he was arrested and on June 4, another order for deportation wag passed by the Commissioner, Ex. A. The accused disobeyed the order and came within the limits of Bombay, and was arrested on September 9, 1930. He was tried before the Third Presidency Magistrate, and was acquitted. The learned Magistrate sent for the papers and documents which formed the basis of the order by the Commissioner of Police, and on failure to produce them he drew an inference that the order was not justified. He was also not prepared to place any reliance on the evidence of Mr. Tawade, the Sub-Inspector and Mr. Lyon, Inspector of Police, and on the evidence came to the conclusion that the matter relating to the deportation of the accused was rushed through, that the accused was working at a panshop and was not in the habit of extorting money from people, and he, therefore, acquitted the accused. The Government of Bombay has appealed against the order of acquittal.

(2.) It is urged on behalf of the Crown that once an order is passed by the Commissioner of Police under Section 27 of the Bombay City Police Act, IV of 1902, the order being an administrative order is final, and that it could not be questioned in a Court of law, and reliance is placed on the decision in In re Pandurang Shidrao , A similar contention was raised and was not accepted in the case of Emperor V/s. Bhalchandra Ranadive , where it was held that public authorities even acting within the defined limits of their powers must not conduct themselves arbitrarily or tyrannically, and that in the case of Duke of Bedford v. Dawson (1875) L.R. 20 Eq. 353 Sir George Jessel M.R. held that the public body are to be the judges subject to this that if they are manifestly abusing their powers the Court will say that it is not a fair and honest judgment and will not allow it. To the same effect is the decision of the case in Nagar Valab Narsi V/s. The Municipality of Dhandhuka (1887) I.L.R. 12 Bom. 490. The power of the Magistrate to go into the question, whether the order of the Commissioner was valid, has been recognized by Tyabji J. in In re Tarabai (1905) 7 Bom. L.R. 161. The order of an executive officer, not being an order of an inferior criminal Court, cannot be set aside in revision according to the decision in In re Pandurang Shidrao, but 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 the judicial authority to consider whether the order is properly made or not. See In the matter of the Petition of Surjanirain Dass (1880) I.L.R. 6 Cal. 88. The Magistrate was, therefore, right in considering the. question whether the order of the Commissioner of Police was justified on the evidence on the record. If the papers and documents which formed the basis of the order of the Commissioner of Police had been produced, they might have strengthened the case of the Crown. In the absence of these papers and documents we have to consider whether the evidence on the record is sufficient to show that the order passed by the Commissioner under Section 27 of the City of Bombay Police Act fell within the ambit of the section.

(3.) It appears that the accused was deported in the year 1925. There was an order of deportation against him which was in full force for two years. After the efflux of two years he was again suspected by the police, and Mr. Tawade in his examination says that in the course of investigation in connection with a riot case he got information that the accused and others were in the habit of extorting money from people and assaulting them, and that it was thought desirable to break up the gang and send them to their native places. After the investigation by Mr. Tawade, Mr. Lyon placed the accused before the Commissioner of Police, prepared the necessary papers, the Commissioner went through the evidence, and passed an order against the accused and one Narayan. From Exhibit A it appears that there was a report before the Commissioner of Police by Mr. Lyon, Inspector of Police, and the Commissioner of Police was satisfied that Babu Narayan and Anna Vithoba were members of a gang whose actions were calculated to cause danger and alarm, and that it was necessary to break up this, gang of bad characters as there was reasonable suspicion that they entertained unlawful designs.