Case Analysis: Hari Khemu Gawali vs. The Deputy Commissioner of Police, Bombay and another
Case Details
Case name: Hari Khemu Gawali vs. The Deputy Commissioner of Police, Bombay and another
Court: Supreme Court of India
Judges: Bhuvneshwar P. Sinha, B. Jagannadhadas, Syed Jaffer Imam
Date of decision: 08 May 1956
Citation / citations: 1956 AIR 559, 1956 SCR 506
Case number / petition number: Petition No. 272 of 1955; Petition Nos. 439 and 440 of 1955
Proceeding type: Petition under Article 32 of the Constitution
Source Judgment: Read judgment
Factual and Procedural Background
The petitioner, Hari Khemu Gawali, was a citizen of India who was born and resided in Bombay and who engaged in the transport of bullock‑carts and the sale of milk. He had earlier been the subject of twelve prohibition proceedings, each of which had ended in discharge or acquittal, and he had been convicted in 1938 of an offence that fell within the categories specified in Clause (a) of Section 57 of the Bombay Police Act, 1951. An externment order had been passed against him in August 1950; that order was set aside in December 1950. A further detention order under the Preventive Detention Act, 1950, had been issued in December 1953, from which he was later released.
On 9 October 1954 the petitioner was arrested by the “Ghost Squad,” a special wing of the Crime Branch CID, on suspicion of possessing knives and other weapons. Pursuant to Section 57 read with Section 59 of the Bombay Police Act, 1951, he was served a notice requiring him to appear on 25 October 1954. He appeared before the authority on 8 November 1954, admitted the 1938 conviction and denied the newer allegations.
Following the hearing, the first respondent, the Deputy Commissioner of Police, Bombay, issued an externment order on 8 November 1954 directing the petitioner to remove himself from Greater Bombay for two years and to obtain written permission before returning. The petitioner appealed the order to the Government of Bombay; the appeal was dismissed.
Consequently, the petitioner filed Petition No. 272 of 1955 under Article 32 of the Constitution, seeking a declaration that Section 57 of the Bombay Police Act, 1951, was unconstitutional and that the externment order be set aside. The petition was heard by a three‑judge bench of the Supreme Court of India comprising B. P. Sinha J, Syed Jaffer Imam J and Jagannadhadas J (dissenting). The Court disposed of the petition in the same proceeding.
Issues, Contentions and Controversy
The Court was called upon to determine whether Section 57 of the Bombay Police Act, 1951, violated Articles 19(1)(d) and 19(1)(e) of the Constitution by imposing an unreasonable restriction on the petitioner’s right to move freely and reside anywhere in India, and whether the procedural scheme prescribed in Sections 59, 60 and 61 satisfied the due‑process requirements of Article 22. The petitioner contended that the statute vested the police with unlimited power to extern a person from the whole State of Bombay, that it lacked an Advisory Board, that the procedure was illusory because the police acted as both prosecutor and judge, and that the grouping of offences under Clause (a) was arbitrary. The State argued that the power was limited to the “local limits of his jurisdiction,” that the restriction was a reasonable measure aimed at public order, that the procedural safeguards of notice, hearing, right of appeal and limited judicial review were constitutionally adequate, and that Article 22(4) required an Advisory Board only for preventive detention statutes, not for police‑externment schemes.
Statutory Framework and Legal Principles
Section 57 of the Bombay Police Act, 1951, authorized the police to issue an externment order against a person who had been convicted of an offence listed in Chapters XII, XVI or XVII of the Indian Penal Code, or who fell within the other categories specified in Clauses (b) and (c). Sections 59, 60 and 61 prescribed the procedure: issuance of a notice stating the general nature of the material, an opportunity to be heard, a right of appeal to the State Government, and limited judicial review on grounds of procedural infirmity, lack of material or inability to call witnesses. The constitutional provisions engaged were Articles 19(1)(d) and 19(1)(e) (freedom of movement and residence), Article 22(4) (requirement of an Advisory Board for preventive detention laws), and Article 32 (the jurisdiction of the Supreme Court to enforce fundamental rights).
The Court applied the reasonableness test embedded in Article 19(1), requiring a rational nexus between the restriction and a legitimate state interest such as public order, and a proportionality assessment. For procedural adequacy, the Court examined whether the safeguards in Sections 59‑61 constituted a minimum due‑process requirement. The applicability of Article 22(4) was assessed in light of the distinction between preventive detention and police‑externment powers.
Court’s Reasoning and Application of Law
The majority held that Section 57 did not transgress Articles 19(1)(d) and ( e) because the restriction it imposed was reasonable, proportionate and confined to the “local limits of his jurisdiction.” The Court found a rational nexus between the petitioner’s prior conviction (1938) and the objective of preventing recurrence of serious criminal conduct. It concluded that the power to extern could not be used to remove a person from the entire State of Bombay, thereby limiting the scope of the restriction.
Regarding procedural safeguards, the majority observed that the notice, opportunity to be heard, right of appeal to the State Government and limited judicial review under Sections 59‑61 satisfied the constitutional requirement of due process, even though the scheme was less elaborate than that of preventive detention statutes. The Court ruled that the absence of an Advisory Board did not render the provision unconstitutional, holding that Article 22(4) mandated such a board only for preventive detention laws.
The Court also rejected the petitioner’s contention that reliance on prior convictions was impermissible, stating that the statute expressly permitted consideration of all material before the authority, and that a prior conviction satisfied the condition for invoking Section 57 irrespective of subsequent discharges or acquittals.
The dissenting judgment, delivered by Jagannadhadas J, argued that Section 57 imposed an unreasonable restriction on the petitioner’s fundamental rights, that the categorisation of offences lacked a rational nexus, and that the procedural scheme was illusory without an Advisory Board. However, the dissent did not form part of the binding judgment.
Final Relief and Conclusion
The Supreme Court dismissed the petition. No writ under Article 32 was issued, and the externment order dated 8 November 1954 remained in force. The Court’s majority affirmed the constitutionality of Section 57 of the Bombay Police Act, 1951, holding that the statutory restriction on the petitioner’s liberty was a reasonable and proportionate measure within the scope of police powers, and that the procedural safeguards provided were constitutionally sufficient.