The State of Madhya Pradesh & ANR
Vs. Baldeo Prasad  INSC 163 (3 October 1960)
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
CITATION: 1961 AIR 293 1961 SCR (1) 970
CITATOR INFO :
RF 1962 SC1371 (42) R 1971 SC 481 (47) R 1971
SC1667 (29) RF 1982 SC 710 (60)
Goondas, Control and Exclusive
of--Constitutional validity of enactment--Test--Central Provinces and Berar
Goondas Act, 1946 (X Of 1946) as amended by Act XLIX of 1950, ss. 4,
4-A--Constitution of India, Arts. 19(1)(d) & (e), 13.
By an order passed under s. 4-A of the
Central Provinces and Berar Goondas Act, 1946 (X of 1946), as amended by the
Madhya Pradesh Act XLIX of 950, the State of Madhya Pradesh directed the
respondent to leave the district of Chhindwara, which had been specified as a
proclaimed area under the Act, and the District Magistrate by another order
communicated the same to the respondent. The respondent challenged the said
orders under Art. 226 of the Constitution on the ground that the Act violated
his fundamental rights under Art.
i9(i)(d) and (e) of the Constitution and was,
therefore, invalidated by Art. 13 Of the Constitution. The High Court held that
ss. 4 and 4-A of the impugned Act were invalid and since they were the 971 main
operative provisions of the Act, the whole Act was invalid.
Held, that when a statute authorises
preventive action against the citizens, it is essential that it must expressly
provide that the specified authorities should satisfy themselves that the
conditions precedent laid down by the statute existed before they acted there
under. If the statute fails to do so in respect of any such condition
precedent, that is an infirmity sufficient to take the statute out of Art.
19(5) Of the Constitution.
Although there can be no doubt that ss. 4 and
4-A of the impugned Act clearly contemplated as the primary condition precedent
to any action there under that the person sought to be proceeded against must
be a goonda, they fail to provide that the District Magistrate should first
find that the person sought to be proceeded against was a goonda or provide any
guidance whatsoever in that regard or afford any opportunity to the person
proceeded against to show that he was not a goonda. The definition of a goonda
laid down by the Act, which is of an inclusive character, indicated no tests
for deciding whether the person fell within the first part of the definition.
Gurbachan Singh v. The State of Bombay,
 S.C.R. 737, Bhagubhai Dullabhabhai Bhandari v. The District' Magistrate,
Thana,  S.C.R. 533 and Hari Khenu Gawali v. The Deputy Commissioner of
Police, Bombay,  S.C.R. 506, referred to.
Although the object of the impugned Act was
beyond reproach and might well attract Art. 19(5) of the Constitution, since
the Act itself failed to provide sufficient safeguards for the protection of
the fundamental rights and the operative sections were thus rendered invalid,
the entire Act must fail.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 271 of 1956.
Appeal from the judgment and order dated
August 2, 1955, of the former Nagpur High Court in Misc. Petition No. 249 of
M. Adhikari, Advocate-General for the State
of Madhya Pradesh, B. K. B. Naidu and I. N. Shroff, for the appellants.
R. Patnaik, for the respondent.
1960. October 3. The Judgment of the Court
was delivered by GAJENDRAGADKAR. J.-This appeal with a certificate issued by
the Nagpur High Court under Art. 132(1) of the Constitution raises a question
about the validity of the Central Provinces and Berar Goondas 972 Act X of 1946
as amended by Madhya Pradesh Act XLIX of 1950.
It appears that against the respondent Baldeo
Prasad the State of Madhya Pradesh, appellant 1, passed an order on June 16,
1955, under s. 4-A of the Act. Subsequently the District Magistrate,
Chhindwara, appellant 2, passed another order dated June 22, 1955,
communicating to the respondent the first externment order passed against him.
The respondent then filed'a writ petition in the High Court (No. 249 of 1955)
under Art. 226 challenging the validity of the said orders, inter alia, on the
ground that the Act under which the said orders were passed was itself ultra
The appellants disputed the respondent's
contention about the vires of the Act. The High Court, however, has upheld the
respondent's plea and has held that ss. 4 and 4-A of the Act are invalid, and
since the two sections contain the main operative provisions of the Act,
according to the High Court, the whole Act became invalid. It is the
correctness of this conclusion which is challenged before us by the appellants.
It would be convenient at this stage to refer
briefly to the scheme of the Act and its relevant provisions. The Act was
passed in 1946 and came into force on September 7, 1946. It was subsequently
amended and the amended Act came into force on November 24, 1950. As the
preamble shows the Act was passed because it was thought expedient to provide
for the control of goondas and for their removal in certain circumstances from
one place to another. Section 2 defines a goonda as meaning a hooligan, rough
or a vagabond and as including a, person who is dangerous to public peace or
tranquillity. It would thus be seen that the definition of the word " goonda
" is an inclusive definition, and it includes even persons who may not be
hooligans, roughs or vagabonds if they are otherwise dangerous to public peace
or tranquillity. Section 3(1) empowers the State Government to issue a
proclamation that disturbed conditions exist or are likely to arise in the
areas specified in such proclamations if the State Government is satisfied that
public peace or tranquillity in any area is disturbed or is 973 likely to be
disturbed. The area in respect of which a proclamation is thus issued is
described in the Act as the proclaimed area. Section 3(2) limits the operation
of the proclamation to three months from its date and provides that it may be
renewed by notification from time to time for a period of three months at a
time. The first step to be taken in enforcing the operative provisions of the
Act thus is that a proclamation has to be issued specifying the proclaimed
areas, and the limitation on the power of the State Government to issue such a
proclamation is that the proclamation can be issued only after it is satisfied
as required by s. 3(1), and its life will not be longer than three months at a
stretch. Section 4 reads thus:
" 4(1). During the period the
proclamation of emergency issued or renewed under Section 3 is in operation,
the District Magistrate having jurisdiction in or in any part of the proclaimed
area, if satisfied that there are reasonable grounds for believing that the
presence, movements or acts of any goonda in the proclaimed area is prejudicial
to the interests of the general public or that a reasonable suspicion exists
that any goonda is committing or is likely to commit acts calculated to disturb
the public peace or tranquillity may make an order(i) directing such goonda to
notify his residence and any change of or absence from such residence during
the term specified and to report his movements in such manner and to such
authority as may be specified ;
(ii) directing that he shall not remain in
the proclaimed area within his jurisdiction or any specified part thereof and
shall not enter such area; and (iii) directing him so to conduct himself during
the period specified as the District Magistrate shall deem necessary in the
interests of public order: Provided that no order under clause (ii) which directs
the exclusion of any goonda from a place in which he ordinarily resides shall
be made except with the previous approval of the State Government:
Provided further that no such order shall be
124 974 made directing exclusion of any goonda from the district in which he
(2) No order under sub-section (1) shall be
made by a District Magistrate in respect of a goonda without giving to such
goonda a copy of the grounds on which the order is proposed to be made and
without giving an opportunity to be heard :
Provided that where the District Magistrate
is of opinion that it is necessary to make an order without any delay he may
for reasons to be recorded in writing, make the order and shall, as soon as may
be within ten days from the date on which the order is served on the goonda
concerned, give such goonda a copy of the grounds and an opportunity to be
(3) After hearing the goonda, the District
Magistrate may cancel or modify the order as he thinks fit. " This section
confers on the District Magistrate jurisdiction to make an order against a
goonda if there are reasonable grounds for believing that his presence,
movements or acts in any proclaimed area is likely to be prejudicial to the
interests of the general public, or it there is a reasonable suspicion that a
goonda is committing or is likely to commit prejudicial acts. Sub-clauses (i),
(ii) and (iii) indicate the nature of the directions and the extent of the
restrictions which can be placed upon a goonda by an order passed under s. 4.
Sub-section (2) requires the District Magistrate to give the goonda a copy of
the grounds on which an order is proposed to be made, and to give him an
opportunity to be heard why such an order should not be passed against him. The
proviso to the section deals with an emergency which needs immediate action.
After hearing the goonda the District Magistrate may under sub-s. (3) either
cancel or modify the order as he thinks fit.
Section 4-A reads thus:
" (1) Where the District Magistrate
considers that with a view to maintain the peace and tranquillity of the
proclaimed area in his district it is necessary to direct a goonda to remove
himself outside the district in which the proclaimed area is comprised or 975
to require him to reside or remain in any place or within any area outside such
district, the District Magistrate may, after giving the goonda an opportunity
as required by subsection (2) of Section 4 forward to the State Government a
report together with connected papers with a recommendation in that behalf (2)
On receipt of such report the State Government may, if it is satisfied that the
recommendation made by the District Magistrate is in the interests of the
general public, make an order directing such goonda(a) that except in so far as
he may be permitted by the provisions of the order, or by such authority or
person as may be specified therein, he shall not remain in any such area or
place in Madhya Pradesh as may be specified in the order;
(b) to reside or remain in such place or within
such area in Madhya Pradesh as may be specified in the order and if he is not
already there to proceed to that place or area within such time as may by
specified in the order :
Provided that no order shall be made
directing the exclusion or removal from the State of any person ordinarily
resident in the State." Thus an order more stringent in character can be
passed under this section. The safeguard provided by the section, however, is
that the District Magistrate is required to give the goonda an opportunity to
be heard and further required to make a report to the State Government and
forward to the State Government papers connected with the recommendation which
the District Magistrate makes. Sub-section (2) of s. 4-A then requires the
State Government to consider the matter and empowers it to make an order either
under cl. (a) or cl. (b) of the said sub-section. The proviso to this section
lays down that Do order shall be made by which the goonda would be excluded or
removed from the State where he ordinarily resides. The last section to which
reference may be made is s. 6. It gives a goonda aggrieved by an order made
against him, inter alia, under s. 4 or s. 4-A to make a representation to the
State Government within the 976 time prescribed, and it requires the State
Government to consider the representation and make such orders thereon as it
may deem fit. That in brief is the scheme of the Act.
At this stage it would be material to state
the relevant facts leading to the writ petition filed by the respondent.
Appellant 1 issued a proclamation under S. 3
on August 10, 1954, specifying the limits of Police Stations Parasia and Jamai
and Chhindwara Town as proclaimed area. This proclamation was renewed in
November, 1954 and February, 1955. Thereafter on May 9, 1955, appellant 1
issued afresh proclamation specifying the whole of the Chhindwara District as
the proclaimed area. This proclamation was to remain in force till August 8,
Whilst the second proclamation was in force
the second appellant received reports from the District Superintendent of
Police, Chhindwara, against the respondent, and he ordered the issue of a
notice to him to show cause why action should not be taken against him under s.
4; this notice required the respondent to appear before the second appellant on
April 29, 1955. The respondent, though served, did not appear before the second
appellant. Thereupon the second appellant sent a report to appellant 1 on April
30, 1955, and submitted the case against him with a draft order for the
approval of the said appellant under the first proviso to s. 4(1). In the
meantime the third notification was issued by appellant 1. The second appellant
then issued a fresh notice against the respondent under s. 4 on May 24, 1955.
The respondent appeared in person on May 30, 1955, and was given time to file
his written statement which he did on June 4, 1955. The case was then fixed for
hearing on June 22, 1955. Meanwhile the State Government passed an order on
June 16, 1955, directing that the respondent shall, except in so far as he may
be permitted by the second appellant from time to time, not remain in any place
in Chhindwara District. This order was to remain in force until August 8, 1955.
On June 22, 1955, the second appellant communicated the said order to the
respondent and directed him to leave the District 977 before 10 a. m. on June
23, 1955. The respondent appealed to appellant 1 to cancel the order passed
against him. The first appellant treated the appeal as a representation made by
the respondent under s. 6 and rejected it on July 9, 1955. A day before this
order was passed the respondent filed his writ petition in the High Court from
which the present appeal, arises.
The respondent challenged the validity of the
Act on the ground that it invades his fundamental rights under Art.
19(1)(d) and (e) and as such it becomes
invalid having regard to the provisions of Art. 13 of the Constitution.
This plea has been upheld by the High Court.
On behalf of the appellants the learned Advocate-General of Madhya Pradesh
contends that the High Court was in error in coming to the conclusion that the
restrictions imposed by the Act did not attract the provisions of Art. 19(5).
The legislative competence of the State Legislature to pass the Act cannot be disputed.
The Act relates to public order which was Entry I in List II of the Seventh
Schedule to the Constitution Act of 1935. There can also be no doubt that the
State Legislature would be competent to pass an act protecting the interests of
the general public against the commission of prejudicial acts which disturb
public peace and order. Section 3 of the Act indicates that it is only where
the public peace or tranquillity is threatened in any 'given area of the State
that the State Government is authorised to issue a proclamation, and as we have
already noticed, it is in respect of such proclaimed areas and for the limited
duration prescribed by s. 3(2) that orders can be passed against goondas whose
prejudicial activities add to the disturbance in the proclaimed areas.
Therefore, broadly stated the purpose of the Act is to safeguard individual
rights and protect innocent and peaceful citizens against the prejudicial
activities of goondas, and in that sense the Act may prima facie claim the
benefit of Art.
19(5). This position is not seriously
The argument against the validity of the Act
is, however, based on one serious infirmity in s. 4 and 978 s.4-A which contain
the operative provisions of the Act.
This infirmity is common to both the sections,
and so what we will say about s. 4 will apply with equal force to s. 4A. It is
clear that s. 4 contemplates preventive action being taken provided two
conditions are satisfied ; first, that the presence, movements or acts of any
person sought to be proceeded against should appear to the District Magistrate
to be prejudicial to the interests of the general public, or that a reasonable
suspicion should exist that such a person is committing or is likely to commit
acts calculated to disturb public peace or tranquillity ; and second that the
person concerned must be a goonda. It would thus be clear that it is only where
prejudicial acts can be attributed to a goonda that s. 4 can come into
In other words, the satisfaction of the first
condition alone would not be enough ; both the conditions must be satisfied
before action can be taken against any person.
That clearly means that the primary condition
precedent for taking action under s. 4 is that the person against whom action
is proposed to be taken is a goonda; and it is precisely in regard to this
condition that the section suffers from a serious infirmity.
The section does not provide that the
District Magistrate must first come to a decision that the person against whom
he proposes to take action is a goonda, and gives him no guidance or assistance
in the said matter. It is true that under s. 4 a goonda is entitled to have an
opportunity to be heard after he is given a copy of the grounds on which the
order is proposed to be made against him; but there is no doubt that all that
the goonda is entitled to show in response to the notice is to challenge the
correctness of the grounds alleged against him. The enquiry does not
contemplate an investigation into the question as to whether a person is a
goonda or not. The position, therefore, is that the District Magistrate can
proceed against a person without being required to come to a formal decision as
to whether the said person is a goonda or not; and in any event no opportunity
is intended to be given to the person to show 979 that he is not a goonda. The
failure of the section to make a provision in that behalf undoubtedly
constitutes a serious infirmity in its scheme.
Incidentally it would also be relevant to
point out that the definition of the word " goonda " affords no
assistance in deciding which citizen can be put under that category. It is an
inclusive definition and it does not indicate which tests have to be applied in
deciding whether a person falls in the first part of the definition. Recourse
to the dictionary meaning of the word would hardly be of any assistance in this
matter. After all it must be borne in mind that the Act authorises the District
Magistrate to deprive a citizen of his fundamental right under Art.
19(1)(d) and (e), and though the object of
the Act and its purpose would undoubtedly attract the provisions of Art.
19(5) care must always be taken in passing
such acts that they provide sufficient safeguards against casual, capricious or
even malicious exercise of the powers conferred by them. It is well known that
the relevant provisions of the Act are initially put in motion against a person
at a lower level than the District Magistrate, and so it is always necessary
that sufficient safeguards should be provided by the Act to protect the
fundamental rights of innocent citizens and to save them from unnecessary
harassment. That is why we think the definition of the word " goonda
" should have given necessary assistance to the District Magistrate in
deciding whether a particular citizen falls under the category of goonda or
not; that is another infirmity in the Act. As we have already pointed out s.
4-A suffers from the same infirmities as s. 4.
Having regard to the two infirmities in ss.
4, 4-A respectively we do not think it would be possible to accede to the
argument of the learned Advocate-General that the operative portion of the Act
can fall under Art. 19(5) of the Constitution. The person against whom action
can be taken under the Act is not entitled to know the source of the
information received by the District Magistrate; be is only told about his
prejudicial activities on which the satisfaction of the District Magistrate is
based that action 980 should be taken against him under s. 4 or s. 4-A. In such
a case it is-absolutely essential that the Act must clearly indicate by a
proper definition or otherwise when and under what circumstances a person can
be called a goonda, and it must impose an obligation on the District Magistrate
to apply his mind to the question as to whether the person against whom
complaints are received is such a goonda or not. It has been urged before us
that such an obligation is implicit in ss. 4 and 4-A. We are, however, not
impressed by this argument. Where a statute empowers the specified authorities
to take preventive action against the citizens it is essential that it should
expressly make it a part of the duty of the said authorities to satisfy
themselves about the existence of what the statute regards as conditions
precedent to the exercise of the said authority. If the statute is silent in
respect of one of such conditions precedent it undoubtedly constitutes a
serious infirmity which would inevitably take it out of the provisions of Art.
19(5). The result of this infirmity is that
it has left to the unguided and unfettered discretion of the authority
concerned to treat any citizen as a goonda. In other words, the restrictions
which it allows to be imposed on the exercise of the fundamental right of a
citizen guaranteed by Art. 19(1)(d) and (e) must in the circumstances be held
to be unreasonable. That is the view taken by the High Court and we see no
reason to differ from it.
In this connection we may refer to the
corresponding Bombay statute the material provisions of which have been
examined and upheld by this Court. Section 27 of the City of Bombay Police Act,
1902 (4 of 1902), which provides for the dispersal of gangs and bodies of
persons has been upheld by this Court in Gurbachan Singh v. The State of Bombay
(1) whereas s. 56 and s. 57 of the subsequent Bombay Police Act, 1951 (22 of
1951), have been confirmed respectively in Bhagubhai Dullabhabhai Bhandari v.
The District Magistrate, Thana (2) and Hari Khemu Gawali v. The Deputy
Commissioner of Police, Bombay (3). It would be (1)  S.C.R. 737. (2)
 S.C.R. 533.
(3)  S.C.R. 506.
981 noticed that the relevant provisions in
the latter Act the validity of which has been upheld by this Court indicate how
the mischief apprehended from the activities of undesirable characters can be
effectively checked by making clear and specific provisions in that behalf, and
how even in meeting the challenge to public peace and order sufficient
safeguards can be included in the statute for the protection of innocent'
citizens. It is not clear whether the opportunity to be heard which is provided
for by s. 4(2) would include an opportunity to the person concerned to lead
evidence. Such an opportunity has, however, been provided by s. 59(1) of the
Bombay Act of 1951. As we have already mentioned there can be no doubt that the
purpose and object of the Act are above reproach and that it is the duty of the
State Legislature to ensure that public peace and tranquillity is not disturbed
by the prejudicial activities of criminals and undesirable characters in
society. That, however, cannot help the appellants' case because, as we have
indicated, the infirmities in the operative sections of the Act are so serious
that it would be impossible to hold that the Act is saved under Art. 19(5) of the
There is no doubt that if the operative
sections are invalid the whole Act must fall.
In the result the order passed by the High
Court is confirmed and the appeal is dismissed with costs.