Rajkumar Bhagwatsaran vs Commissioner of Police

P. Ramakrishnan, J.—Petitioner Rajakumar Bhagwatsaran has filed this writ petition under Article 226 of the Constitution praying for the

issue of a writ of certiorari quashing the notice issued to him by the Deputy Commissioner of Police, Crimes Madras City, dated 3rd August. 1964

u/s 51A of the Madras City Police Act. The notice is in the following terms:

Whereas information containing the allegations set out below for taking action u/s 51-A, Madras City Police Act, has been laid before me by Sri

Siva sankaran, Detective Sub-Inspector of Police, Royapuram, P.S. Madras City in exercise of the powers conferred on me u/s 51-A, City Police

Act, 1888, I Sri S. Palaniappan, Deputy Commissioner of Police (Crimes), Madras City, call upon you to show cause within seven days from the

date of receipt of this notice as to why you should not be directed to remove yourself out of Madras City or why you should not be directed to

conduct yourself in the manner as may be necessary to prevent causing any alarm, danger, harm to persons or property or commission of any

offences, and that, in order to give an opportunity of tendering your explanation regarding the allegations, I have appointed 11 hours on the eighth

day following your receipt of this notice, at the office of the Commissioner of Police Madras, to receive your explanation and to hear you or your

Advocate and to peruse your written representation if any, and to hear your witnesses if any, in regard to the said allegations, failing which it will be

construed that you have no explanation to offer and orders will be passed on the date specified for receiving your explanation. Take note.

Allegations.--You were not born in Madras City or Chingleput District or North Arcot District. On 3rd July, 1963 you were arrested in X. Cr.

No. 266 of 1963 u/s 55 Criminal Procedure Code and investigation disclosed that 8 months prior to 18th October, 1963 at Petty Munuswamy

Chetty Street, you falsely represented to Sri W.R. Kadirvelu Mudaliar, S.H.P.M., Madras that you were an Advocate running a journal called

Who is Who"" and that you would publish about the City S.H.P.Ms. and induced the witness to part with his photo and a sum of Re. 1 and thus

cheated him.

Similarly about 8 months prior to 29th October, 1963 you cheated one Sri Ramachandra Mudaliar S.H.P.M. at No. 10, Flowers Road,

Kilpauk by falsely representing to him that you were an Advocate running a journal called ""Who is Who"" and that you would ""publish about the

City S.H.P.Ms. and induced the witness to part with his photo and a sum of Rs. 5 and thus cheated him.

Similarly on 27th February, 1963 you cheated one Sri K.V. Ganapathy Iyer at No. 21, 2nd Cross Street, Kodambakkam by falsely

representing to him that you were an Advocate holding B.A.B.L., Degree, journalist running a magazine called ""Who is Who"" and that you were

the author of the film review in the Film Magazine. You also wanted to make a publication about the City S.H.P.Ms. and induced the witness to

part with his photo and a sum of Rs. 5 and thus cheated him. Hence you were charged and convicted in H-3, Tondiarpet P.S. Cr. No. 1293 of

1963 Section 420 Indian Penal Code to one year R.I. by the II Presidency Magistrate, George Town, Madras in C.C. No. 15606 of 1963, dated

31st March, 1964. Thus you have proved yourself addicted to commission of offence punishable under Chapter XVII of the Indian Penal Code.

Your presence and stay in Madras City is a menace to the society.

The Petitioner urges that the three allegations involving offences of cheating mentioned in the above notice were the subject-matter of a Criminal

Prosecution against him in C.C. No. 15606 of 1963 on the file of the Second Presidency Magistrate, George Town, Madras, in which he was

convicted. He filed an Appeal before this Court, and the appeal was pending when the aforesaid notice was issued. He has alleged that the notice

dealt with a matter which was pending consideration by this Court, regarding his commission of the above offences, and that to that extent it is

illegal. The Petitioner has also contended that Section 51-A of the Madras City Police Act, under which the above notice was issued, is

unconstitutional, because it discriminates between persons who are born in the City of Madras or in the District of Chingleput or North Arcot on

the one hand and other persons on the other, and that therefore, it should be struck down as unconstitutional.

It is not necessary to deal in this writ petition about the unconstitutionality of the provisions. That apart, prima jack, the Section is intended to

deal with violent persons. The first limb of Section 51-A(1)(a) refers to persons whose movements or acts are causing or are calculated to cause

alarm, danger or harm to person or property. As alternative, the second limb of Section 51-A(1)(a) refers to person who on reasonable grounds

can be believed to engage or about to be engaged in the commission of any offence involving force or violence or punishable under certain

specified chapters of the Indian Penal Code which includes Chapter XVII. Cheating; which is the offence involved in the three allegations

mentioned in the notice comes under Chapter XVII of the Indian Penal Code, and is therefore included within the second limb of this section. But

Section 51-A(1)(h) proceeds to lay down a further requirement Applica Die to either of the above two limbs of Section 51-A(1)(a) namely that

witnesses are not willing to come forward to give evidence in public against such persons by reason of apprehension on their part regarding the

safety of their person, or property. Because of the use of the word ''and'' between Section 51-A(1)(a), and (b), it is reasonable to assume that this

requiretnesses to prevent them from deposing to the three allegations mentioned in the notice. In actual fact, the three allegations have been the

subject-matter of a criminal prosecution, at which the witnesses have already deposed and the petitioner had been convicted on their evidence.

Subsequent to the notice, in the appeal of the petitioner in this Court, his conviction was confirmed but the sentence was rement is also essential,

before proceedings are instituted against persons under the above section. But in the present notice, there is no allegation that the petitioner is using

force or threat to widuced. There can, therefore, be no question of witnesses to speak to the three allegations mentioned in the notice being

prevented by the petitioner by force from giving evidence against him, when in actual fact they had given evidence and the petitioner had been

convicted on their evidence. On this short ground, it appears to me that the present notice against the petitioner should be struck down, as it is not

in accordance with the requirement of Section 51-A of the Madras City Police Act.

The petitioner appears before me in person and is not assisted by any Advocate. He is not able to produce necessary authorities as well as

decisions of Courts for the purpose of examining the constitutionality of the provision u/s 51-A of the City Police Act and giving a decision thereon.

In view of that circumstance, I am not entering into the constitutionality of the provision, in this petition.

For the reasons mentioned above, the writ petition is allowed and the notice dated 3rd August, 1964 of the Deputy Commissioner of Police,

Crimes, Madras City is quashed. But nothing mentioned in this order will prevent the authorities from proceeding against the petitioner, if other

grounds are made out to justify proceeding under other appropriate provisions of the City Police Act. There will be no order as to costs.