EMPEROR Vs. ABDUL MAJID ABDUL AZIZ

JUDGEMENT

(1.) This is an appeal against an order of the Presidency Magistrate, 20 Court, acquitting the accused who was charged under Section 2(6) of the Bombay Public Security Measures Act (Bom. VI of 1947).

(2.) This appeal raises rather an important question of principle. An order was made against the accused on June 24, 1947, by the Commissioner of Police under Section 2(1)(b) of Bombay Act VI of 1947. The accused complied with the order and left the jurisdiction of the City of Bombay. But. he came back to Bombay in November and thereby contravened the order. He was arrested on November 22, 1947, and he was prosecuted under Sub-section (6) of Section 2 for contravening the order made by the Commissioner of Police. The learned Magistrate took the view that the prosecution had failed to establish the conditions laid down, by the Legislature for the making of a valid order under Section 2(1)(b), and, therefore, the accused was entitled to an acquittal. The Advocate General has contended before us that the judgment of the learned Magistrate is wrong and that the prosecution had established all that was incumbent upon it to establish by merely tendering the order passed by the Commissioner of Police and it was the duty of the Court to accept the order ex facie as valid, and, if it was satisfied that the accused had contravened the terms of the order, to proceed to convict the accused and pass the proper sentence.

(3.) Now, turning to the Act, it is perfectly true that before an order under Sub-clause (b) can be made, the Provincial Government or an officer to whom the power has been delegated under the Act has to be satisfied that any person was acting, is acting or is likely to act in a manner prejudicial to the public safety, the maintenance of public order or the tranquillity of the Province or any part thereof. The making of a valid order is made conditional by the Legislature upon the satisfaction of the Provincial Government. It is a condition precedent to the making of the order, and, therefore, before the Court can convict an accused person for contravening an order under Section 6 evidence has got to be led in order to establish that the Provincial Government was satisfied in the manner indicated in Sub-section (1) of Section 2. Section 6 speaks of contravening an order made under this section. It is only a valid order made under the section, the contravention of which constitutes an offence. It is not any order made under the section which requires obedience on the part of the person to whom the order is addressed. It must be an order which satisfies the condition laid down in Sub-section (1) of Section 2, and as we have pointed out the condition which the Legislature requires and which it has imposed upon the executive authority is that it should be satisfied in a particular manner. Now, the Advocate General has argued that as soon as an order made by the Commissioner of Police is tendered and the order on the face of it says that the Commissioner of Police was satisfied as required by Sub-section (1), nothing further is to be proved by the prosecution, and the condition laid down under Sub-section (1) has been satisfied. In our opinion that is not the correct position in law. Section 60 inasmuch as it provides for a conviction at the hands of a Court, presupposes a judicial determination by the Court. Although the order to be made is an executive order, the determination that it is a valid order is a judicial determination, and for the purpose of a judicial determination all the principles underlying the Evidence Act and all principles underlying criminal jurisprudence must be complied with. And the most fundamental of these principles is that the burden of proving the guilt of the accused is upon the prosecution and the prosecution must establish by evidence all the ingredients which go to constitute an offence, and when an accused person is charged with the contravention of an order, and lie pleads not guilty by challenging the validity of the order, one of the most important ingredients to be proved is that the Provincial Government has been satisfied on materials placed before it that the accused is acting in a manner which is prejudicial to the public safety, the maintenance of public order or the tranquillity of the Province or any part thereof, and that ingredient, in our opinion, cannot be said to have been proved merely by the prosecution flourishing in Court an order made by the Police Commissioner. The Advocate General has given the instance of proceedings under Section 491 where a detained person under the Public Security Measures Act comes to Court complaining of his detention and challenging the order of detention. The position, in proceedings under Section 491 and the position that obtains when a person is charged in a Court of law for the commission of an offence are by no means identical and no analogs can be drawn between the two. In the case of habeas corpus proceedings the petitioner comes to Court on a petition and he has got to make out, and he has got to state, that the order under which he is detained is a bad order on any of the grounds on which it is open to him to attack or assail the order. On that if the Court is satisfied that a prima facie case is made out, it calls upon the detaining authority to justify the order and to meet the challenge made to it by the petitioner. In the case of a criminal trial it is the prosecution that initiates the proceedings. It is the prosecution that has got to prove the guilt of the accused, and not merely make out a prima facie case. The accused is under no obligation to open his mouth, and the Court can only convict the accused if it is satisfied that the prosecution has established that an offence was committed by the accused. Therefore, it would not be proper for us to accept the suggestion of the Advocate General and to lay down that as in habeas corpus proceedings the Court must in every case be satisfied by the mere production of the order by treating it as ex facie valid unless it is challenged on some ground by the accused. To accept this contention would tend to undermine the basic principles of a criminal trial and virtually to throw the burden upon the accused, which burden should and must always lie upon the prosecution.