Case Note & Summary
The appeal before the Supreme Court of India arose from a criminal prosecution under Section 142 of the Bombay Police Act, 1951, for contravention of an externment order passed under Section 56 of the same Act. The appellant, Nawabkhan Abbaskhan, was externed by the Police Commissioner on September 5, 1967, on grounds that his movements or acts were causing alarm and danger. On September 17, 1967, he allegedly re-entered the forbidden area in violation of that order. The trial court acquitted him of the offence. The State of Gujarat appealed to the Gujarat High Court, which convicted the appellant. During the pendency of the criminal proceedings, the High Court, in a separate writ petition under Article 226 of the Constitution, quashed the externment order on July 16, 1968, on the ground that the appellant had not been given an adequate opportunity to show cause against the specific allegations of areas where acts were alleged to have been committed, thereby violating Section 59 of the Bombay Police Act and the principles of natural justice. The criminal appellate High Court, however, held that the quashing of the externment order did not render it void ab initio but only invalidated it prospectively from the date of the writ, and therefore the contravention while the order was in force constituted an offence. The appellant then appealed to the Supreme Court. The core legal issue before the Supreme Court was whether an externment order quashed by a High Court for violation of natural justice became void ab initio, leaving no valid order to contravene. The appellant argued that once the order was quashed, it was void from inception and there was no offence. The State argued that the order was valid until quashed, a citizen could not judge its legality and disobey it with impunity, and holding otherwise would create anomalous results depending on the outcome of a writ petition. The Supreme Court examined Sections 56 and 59 of the Bombay Police Act, 1951, and Article 19 of the Constitution. Section 56 confers power on the Police Commissioner to extern undesirable persons, while Section 59 imposes a mandatory duty to inform the person of the general nature of the material allegations and give a reasonable opportunity of tendering an explanation before passing an externment order. This duty to hear is a condition on the exercise of jurisdiction. The Court held that an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. Such an order is void ab initio and of no legal efficacy. The duty to hear menacles the jurisdictional exercise, and any act is in its inception void except when performed in accordance with the conditions laid down regarding hearing. A void order may be directly and collaterally challenged in legal proceedings. When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, that is, the impugned act or order was never valid. Since the externment order was passed without due hearing in violation of natural justice, it was void from the beginning. Consequently, the accused was never guilty of flouting an order which never legally existed. The Supreme Court allowed the appeal and set aside the conviction. It did not express any final opinion on the many wide-ranging problems in public law of illegal orders and violation thereof by citizens beyond the specific facts of this case.
Headnote
A) Constitutional Law - Fundamental Rights - Article 19, Constitution of India - Externment order under Section 56 of Bombay Police Act, 1951 must comply with procedural safeguards under Section 59 including notice and opportunity to be heard; non-compliance infringes fundamental right - The appellant was externed without being given adequate opportunity to show cause regarding specific areas of alleged acts, violating Section 59 and Article 19 - High Court quashed the externment order; Supreme Court held that the order encroached on fundamental right without due hearing and was void (Paras Not mentioned). B) Administrative Law - Natural Justice - Audi Alteram Partem - An order passed in violation of natural justice affecting a fundamental right is a nullity, void ab initio, and not merely voidable; the duty to hear conditions jurisdictional exercise - The Supreme Court held that an order which infringes a fundamental freedom passed in violation of audi alteram partem rule is a nullity; any order made without hearing party affected is void and ineffectual to bind parties from beginning if injury is to constitutionally guaranteed right (Paras Not mentioned). C) Criminal Law - Offence of Contravening Externment Order - Section 142 Bombay Police Act, 1951 - Contravention of an externment order that is void ab initio constitutes no offence because there is no valid order to flout - The appellant was prosecuted for re-entering forbidden area during currency of externment order which was subsequently quashed; Supreme Court held that the legal result was that accused was never guilty of flouting an order which never legally existed (Paras Not mentioned). D) Writ Jurisdiction - Effect of Quashing under Article 226 - Constitution of India, Article 226 - When a competent court holds an official act or order invalid, it operates from nativity, meaning the order was never valid; void orders can be collaterally challenged - The Supreme Court rejected the High Court's view that quashing was prospective; it held that an order is null and void if statute conditions power with obligation to hear, and when set aside, operates from inception (Paras Not mentioned).
Issue of Consideration
Whether an externment order passed under Section 56 of Bombay Police Act, 1951, quashed by High Court under Article 226 of the Constitution for violation of natural justice, is void ab initio and its contravention constitutes no offence under Section 142 of the Act.
Final Decision
Supreme Court allowed the appeal, setting aside the conviction. It held that the externment order was void ab initio because it was passed in violation of the audi alteram partem rule, which is mandated by Section 59 of the Bombay Police Act, 1951 and necessary to protect fundamental rights under Article 19 of the Constitution. Consequently, there was no valid order to contravene, and the accused was not guilty of an offence under Section 142 of the Act.
Law Points
- An order infringing a fundamental freedom passed in violation of audi alteram partem is a nullity
- void ab initio
- duty to hear conditions jurisdictional exercise
- void order may be collaterally challenged
- quashing operates from nativity
- contravention of void order is no offence
