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Appeal No. LXVI of 1949. Appeal from the High Court of judicature Bombay in a reference under section 66 of the Indian Income tax Act 1022. K.M. Munshi (N. P. Nathvani with him) for the appel lant. ' M.C. Setalvad Attorney General for India (H. J. Umrigar with him) for the respondent. 1950. May 26. The judgment of the Court was delivered by MEHR CHAND MAHAJAN J. This is an appeal against a judgment of the High Court of Judicature at Bombay in an income tax matter and it raises the question whether munici pal property tax and urban immoveable property tax payable under the relevant Bombay Acts are allowable deductions under section 9 (1) (iv) of the Indian Income tax Act. The assessee company is an investment company deriving its income from properties in the city of Bombay. For the assessment year 1940 41 the net income of the assessee under the head "property" was computed by the Income tax Officer in the sum of Rs. 6 21 764 after deducting from gross rents certain payments. The company had paid during the relevant year Rs. 1 22 675 as municipal property tax and Rs. 32 760 as urban property tax. Deduction of these two sums was claimed under the provisions of section 9 the Act. Out of the first item a deduction in the sum of Rs. 48 572 was allowed on the ground that this item represented tenants ' burdens paid by the assessee otherwise the claim was disal lowed. The appeals of the assessee to the Appellate As sistant Commissioner and to the Income tax Appellate Tribu nal were unsuccessful. The Tribunal however agreed to refer two questions of law to the High Court of Judicature at Bombay namely (1) Whether the municipal taxes paid by the applicant company are an allowable deduction under 555 the provisions of section 9 (1) (iv) of the Indian Income tax Act; (2) Whether the urban immoveable property taxes paid by the applicant company are an allowable deduction under section 9 (1) (iv) or under section 9 (1) (v) of the Indian Income tax Act. A supplementary reference was made covering a third question which was not raised before us and it is not there fore necessary to refer to it. The High Court answered all the three questions in the negative and hence this appeal. The question for our determination is whether the munic ipal property tax and urban immoveable property tax can be deducted as an allowance under clause (iv) of sub section (1) of section 9 of the Act. The decision of the point depends firstly on the construction of the language employed in sub clause (iv) of sub section (1) of section 9 of the Act and secondly on a finding as to the true nature and character of the liability of the owner under the relevant Bombay Acts for the payment of these taxes. Section 9 along with the relevant clause runs thus: (1) The tax shall be payable by an assessee under the head ' income from property ' in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of Which he is the owner . . subject to the following allowances namely : (iv) where the property is subject to a mortgage or other capital charge the amount of any interest on such mortgage or charge; where the property is subject to an annual charge not being a capital charge the. amount of such charge; where the property is subject to a ground rent the amount of such ground rent; and where the property has been acquired constructed repaired renewed or recon structed with borrowed capital the amount of any interest payable on such capital; . . . " It will be seen that clause (iv) consists of four sub clauses corresponding to the four deductions allowed 556 under the clause. Before the amending Act of 1939 clause (iv) contained only the first third and fourth sub clauses. Under the first sub clause interest is deductible whether the amount borrowed on the security of the property was spent on the property or not. There is no question of any capital or other expenditure on the property. The expression "capital charge" in the sub clause cannot connote a charge on the capital that is the property assessed. That would be a redundancy as the opening words themselves clearly indicate that the charge is on the property. We are therefore of opinion that capital charge here could only mean a charge created for a capital sum i.e. a charge to secure the discharge of a liability of a capital nature. In 1933 the Privy Council decided the case of Bijoy Singh. Dudhuria vs Commissioner of Income tax Calcutta (1 ). It was not an assessment under section 9 but an assess ment on the general income of an assessee who was liable to pay maintenance for his step mother which had been charged on all his assets by a decree of Court. It was not a li ability voluntarily incurred by him but one cast on him by law. The Privy Council held that the amount paid by him in discharge of that liability formed no part of his real income and so should not be included in his assessment. Though the decision proceeded on the principle that the outgoings were not part of the assessee 's income at all the framers of the amending Act of 1939 wanted apparently to extend the principle so far as the assessment of property was concerned even to cases where obligatory payments had to be made out of the assessee 's income from the property charged with such payments and the second sub clause namely "where the property is subject to an annual charge not being a capital charge the amount of such charge" was added. It is this sub clause which the appellant invokes in support of its claim to deduction of the municipal and urban property taxes in the present case. In view of the opening words of the newly added sub clause the expression "capital charge" also used therein cannot have reference to a charge on the property and we think it must (1) I.L.R. 60 cal. 557 be understood in the same sense as in sub clause (1); that is to say the first sub clause having provided for deduc tion of interest where a capital sum is charged on the property this sub clause provides for a deduction of annual sums so charged such sums not being capital sums the limiting words being intended to exclude cases where capital raised on the security of the property is made repayable in instalments. In Commissioner of Income tax Bombay vs Mahomedbhoy Rowji (1) a Bench of the Bombay High Court considered the meaning of these words. As regards "annual charge Beau mont C.J. observed as follows : The words I think would cover a charge to secure an annual liability." Kania J. as he then was said as follows : "I do not see how a charge can be annual unless it means a charge in respect of a payment to be made annually." This construction of the words has been followed in the judgment under appeal. In Gappumal Kanhaiya Lal vs Commissioner of Income tax (2) (the connected appeal before us) the Bench of the Allahabad High Court agreed with the construction placed on these words in the Bombay case i.e. the words "annual charge" mean a charge to secure an annual liability. It is therefore clear that there is no conflict of judicial deci sions as to the meaning of the phrase "annual charge" occur ring in section 3 (1) (iv) and the meaning given is the natural meaning of these words. As to the phrase "capital charge" Beaumont C.J. in the case above referred to took the view that the words mean a charge on capital. Kania J. however took a different view and observed that he was not prepared to accept the sugges tion that a document which provides for a certain payment to be made monthly or annually and charged on immoveable property or the estate of an individual becomes a capital charge. In the Allahabad judgment under appeal these (1) I.L.R. (2) I.L.R. 1944 All. 558 words were considered as not meaning a charge on capital. It was said that if an annual charge means a charge to secure the discharge of an annual liability then capital charge means a charge to secure the discharge of a liability of a capital nature. We think this construction is a natu ral construction of the section and is right. The determination of the point whether the taxes in dispute fall within the ambit of the phrase "annual charge not being a capital charge" depends on the provisions of the statutes under which they are levied. Section 143 of the City of Bombay Municipal Act 1888 authorises the levy of a general tax on all buildings and lands in the city. The primary responsibility to pay this property tax is on the lessor (vide section 146 of the Act). In order to assess the tax provision has been made for the determination of the annual rateable value of the building in section 154. Section 156 provides for the maintenance of an assessment book in which entries have to be made every official year of all buildings in the city their rateable value the names of persons primarily liable for payment of the property tax on such buildings and of the amount for which each building has been assessed. Section 167 lays down that the assess ment book need not be prepared every official year but public notices shall be given in accordance with sections 160 to 162 every year and the provisions o+ the said sec tions and of sections 163 and 167 shall be applicable each year. These sections lay down a procedure for hearing objections and complaints against entries in the assessment book. From these provisions it is clear ' that the liabil ity for the tax is determined at the beginning of each official year and the tax is an annual one. It recurs from year to year. Sections 143to 168 concern themselves with the imposition liability and assessment of the tax for the year. The amount of the tax for the year and the liability for its payment having been determined the Act then pre scribes for its collection in the chapter "The collection of taxes. " Section 197 provides that each of the property taxes shall be payable in 559 advance in half yearly instalments on each first day of April and each first day of October. The provision as to half yearly instalment necessarily connotes an annual li ability. In other words it means that the annual liability can be discharged by half yearly payments. Procedure has also been prescribed for recovery of the instalments by presentment of a bill a notice of demand and then distress and sale. Finally section 212 provides as follows : "Property taxes due under this Act in respect of any building or land shall subject to the prior payment of the land revenue if any due to the provincial Government thereupon be a first charge . . upon the said build ing or land . " It creates a statutory charge on the building. Urban immove able property tax is leviable under section 22 of Part VI of the Bombay Finance Act 1932 on the annual letting value of the property. The duty to collect the tax is laid on the municipality and it does so in the same manner as in the case of the municipal property tax. Section 24 (2) (b) is in terms similar to section 212 of the Bombay Municipal Act. It makes the land or the building security for the payment of this tax also. For the purposes of section 9 of the Indian Income tax Act both these taxes namely the munici pal property tax as well as the urban immoveable property tax are of the same character and stand on the same foot ing. Mr. Munshi the learned counsel for the appellant con tended that both the taxes are assessed on the annual value of the land or the building and are annual taxes although it may be that they are collected at intervals of six months for the sake of convenience that the income tax itself is assessed on an annual basis that in allowing deductions all payments made or all liabilities incurred during the previ ous year of assessment should be allowed and that the taxes in question fell clearly within the language of section 9 (1) (iv). The learned Attorney General on the other hand argued that although the taxes are assessed for the year the liability to pay them arises at the beginning 560 of each half year and unless a notice of demand is issued and a bill presented there is no liability to pay them and that till then no charge under section 212 of the Act could possibly arise and that the liability to pay being half yearly in advance the charge is not an annual charge. It was also suggested that the taxes were a capital charge in the sense of the property being security for the payment. We are satisfied that the contentions raised by the learned Attorney General are not sound. It is apparent from the whole tenor of the two Bombay Acts that the taxes are in the nature of an annual levy on the property ' and are assessed on the annual value of the property each year. The annual liability can be discharged by half yearly instalments. The liability being an annual one and the property having been subjected to it the provisions of clause (iv) of sub sec tion (1) of section 9 are immediately attracted. Great emphasis was laid on the word"due" used in section 212 of the Municipal Act and it was said that as the taxes do not become due under the Act unless the time for the payment arrives no charge comes into existence till then and that the charge is not an annual charge. We do not think that this is a correct construction of section 212. The words "property taxes due under this Act" mean property taxes for which a person is liable under the Act. Taxes payable during the year have been made a charge on the property. The liability and the charge both co exist and are co exten sive. The provisions of the Act affording facilities for the discharge of the liability do not in any way affect their true nature and character. If the annual liability is not discharged in the manner laid down by section 197 can it be said that the property cannot be sold for recovery of the whole amount due for the year ? The answer to this query can only be in the affirmative i.e. that the proper ty is liable to sale. In Commissioner of Income tax Bombay vs Mahomedbhoy Rowji(1) Beaumont C.J. while rejecting the claim for the deduction of the taxes placed reliance on (1) I.L.R. 561 section 9 (1) (v) which allows a deduction in respect of any sums paid on account of land revenue. It was observed that land revenue stands on the same footing as municipal taxes and that as the legislature made a special provision for deduction of sums payable in regard to land revenue but not in respect of sums paid on account of municipal taxes that circumstance indicated that the deduction was not allowable. For the same purpose reference was also made to the provi sions of section 10 which deal with business allowances and wherein deduction of any sum paid on account of land reve nue local rates or municipal taxes has been allowed. In the concluding part of his judgment the learned Chief Jus tice said that it was not necessary for him to consider what the exact meaning of the words was and that it was suffi cient for him to say that it did not cover municipal taxes which are made a charge on the property under section 212 of the Bombay Municipal Act. Without determining the exact meaning of the words used by the statute it seems to us it was not possible to arrive at the conclusion that the taxes were not within the ambit of the clause. It is elementary that the primary duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid tO find that intention. Again reference to clause (v) of the section is not very helpful because land revenue is a charge of a paramount nature on all buildings and lands and that being so a deduction in respect of the amount was mentioned in express terms. Municipal taxes on the other hand do not stand on the same footing as land revenue. The law as to them varies from province to province and they may not be necessarily a charge on property in all cases. The legis lature seems to have thought that so far as municipal taxes on property are concerned if they fall within the ambit of clause (iv) deduction will be claimable in respect of them but not otherwise. The deductions allowed in section 10 under the head "Income from business" proceed on a different footing and a construction of section 9 with the aid of section 10 is apt to mislead. 562 Kania J. in the above case in arriving at his conclusion was influenced by the consideration that these taxes were of a variable character i.e. liable to be increased or re duced under the various provisions of the Municipal Act and that the charge was in the nature of a contingent charge. With great respect it may be pointed out that all charges in a way may be or are of a variable and contingent na ture. If no default is made no charge is ever enforceable and whenever there is a charge it can be increased or reduced during the year either by payment or by additional borrowing. In Moss Empires Ltd. vs Inland Revenue Commissioners (1) it was held by the House of Lords that the fact that certain payments were contingent and variable in amount did not affect their character of being annual payments and that the word "annual" must be taken to have the quality of being recurrent or being capable of recurrence. In Cunard 's Trustees vs Inland Revenue Commissioners (2) it was held that the payments were capable of being recur rent and were therefore annual payments within the meaning of schedule D case III rule 1 (1) even though they were not necessarily recurrent year by year and the fact that they varied in amount was immaterial. The learned Attorney General in view of these decisions did not support the view expressed by Kania J. Reliance was placed on a decision of the High Court of Madras in Mamad Keyi vs Commissioner of Income tax Madras(3) in which moneys paid as urban immoveable property tax under the Bombay Finance Act were disallowed as inadmis sible under section 9 (1) (iv) or 9 (1) (v) of the Indian Income tax Act. 'This decision merely followed the view expressed in Commissioner of income tax Bombay vs Mahomedb hoy Rowji (4)and was not arrived at on any independent or fresh reasoning and is not of much assistance in the deci sion of the case. The Allahabad High Court (1) (2) [1948] 1 A.E.R. 150. (3) I.L.R. (4) I.L.R. 563 in Gappumal Kanhaiya Lal vs Commissioner of Incometax (1) (the connected appeal) took a correct view of this matter and the reasoning given therein has our approval. The result is that this appeal is allowed and the two questions which were referred to the High Court by the Income tax Tribunal and cited above are answered in the affirmative. The appellants will have their costs in the appeal. Appeal allowed.

The charge created in respect of municipal property tax by section 212 of the City of Bombay Municipal Act 1888 is an "annual charge not being a capital charge" within the mean ing of section 9 (1) (iv) of the Indian Income tax Act 199.2 and the amount of such charge should therefore be deducted in computing the income from such property for the purposes of section 9 of the Indian Income tax Act. The charge in respect of urban immoveable property tax created by the Bombay Finance Act 1939 is similar in character and the amount of such charge should also be deducted. The expression "capital charge" in s.9(1) (iv) means a charge created for a capital sum that is to say a charge created to. ' secure the discharge of a liability of a capi tal nature; and an "annual charge" means a charge to secure an annual liabili ty. 554

XXIX of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are stated in the judgment. N.C. Chatterjee (B. Banerji with him) for the petition er. M.C. Setalvad Attorney General for India (section M. Sikri with him) for the respondent. May 26. The judgment of Kania C.J. Patanjali Sastri Mehr Chand Mahajan Mukherjea and Das JJ. was deliv ered by Patanjali Sastri J. Fazl Ali J. delivered a separate dissenting judgment 607 PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent the Chief Commissioner of Delhi with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the Organizer of which the first applicant is the printer and publisher and the second is the editor. On 2nd March 1950 the respondent in exercise of powers conferred on him by section 7 (1) (c) of the East Punjab Public Safety Act 1949 which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act issued the following order: "Whereas the Chief Commissioner Delhi is satisfied that Organizer an English weekly of Delhi has been pub lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order. Now there more in exercise of the powers conferred by section 7 (1)(c) of the East Punjab Public Safety Act 1949 as extended to the Delhi Province I Shankar Prasad Chief Commissioner Delhi do by this order require you Shri Brij Bhushan Printer and Publisher and Shri K.R. Halkani Editor of the aforesaid paper to submit for scrutiny in duplicate before publication till further orders all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies viz. Press Trust of India United Press of India and United Press of America to the Provincial Press Officer or in his absence to Superintend ent of Press Branch at his office at 5 Alipur Road Civil Lines Delhi between the hours 10 a.m. and 5 p.m. on work ing days. " The only point argued before us relates to the consti tutional validity of section 7 (1) (c) of the impugned Act which as appears from its preamble was passed "to provide special measures to ensure public safety 608 and maintenance of public order. " Section 7 (1) (c) under which the aforesaid order purports to have been made reads (so far as material here) as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may by order in writing addressed to a print er publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny." The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19 (1) (a) of the Constitu tion inasmuch as it authorises the imposition of a restric tion on the publication of the journal which is not justi fied under clause (2) of that article. There can be little doubt that the imposition of precen sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). As pointed out by Blackstone in his Commentaries "the liberty of the press consists in laying no previous restraint upon publications and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press(1). The only question therefore is whether section 7 (1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19. As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950(2) was based our judgment in that case concludes the present case also. Accordingly for the reasons indicated in that judgment we allow this petition and hereby quash the impugned order of the Chief Commission er Delhi dated the 2nd March 1950. (1) Blackstone 's Commentaries Vol. IV pp. 151 152. (2) Romesh Thappar vs The State of Madras supra p. 594. 609 FAZL ALI J. The question raised in this case relates to the validity of 'section 7 (1) (c) of the East Punjab Public Safety Act 1949 (as extended to the Province of Delhi) which runs as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may by order in writing addressed to a print er publisher or editor * * * * (c) require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny;" It should be noted that the provisions of sub clause (c) arc not in general terms but are confined to a "particular subject or class of subjects and that having regard to the context in which these words are used, they must be connect ed with public safety or the maintenance of public order. " The petitioners on whose behalf this provision is assailed are respectively the printer (and publisher) and editor of an English weekly of Delhi called Organizer and they pray for the issue of writs of certiorari and prohibi tion to the Chief Commissioner Delhi with a view ' 'to examine and review the legality" of and "restrain the operation" of and "quash" the order made by him on the 2nd March 1950 under the impugned section directing them "to submit for scrutiny in duplicate before publication till further orders all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies. " The order in question recites among other things that the Chief Commissioner is satisfied that the Organizer has been publishing highly objectionable matter constituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or combating activities 610 prejudicial to the public safety or the maintenance of public order. It is contended on behalf of the petitioners that notwithstanding these recitals the order complained against is liable to be quashed because it amounts to an infringement of the right of freedom of speech and expres sion guaranteed by article 19 (1) (a) of the Constitution. Articles 19 (1) (a) and (2) which are to be read together run as follows : 19 (1) All citizens shall have the right (a) to freedom of speech and expression; * * * * (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to libel slander defamation contempt of Court or any matter which offends against decency or morality or which under mines the security of or tends to overthrow the State. " It is contended that section 7 (1)(c) of the Act under which the impugned order has been made cannot be saved by clause (2) of article 19 of the Constitution because it does not relate to any matter which undermines the security of or tends to overthrow the State. Thus the main ground of attack is that the impugned law is an infringement of a fundamental right and is not saved by the so called saving clause to which reference has been made. There can be no doubt that to impose pre censorship on a journal such as has been ordered by the Chief Commissioner in this case is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitu tion and the only question which we have therefore to decide is whether clause (2) of article 19 stands in the way of the petitioners. The East Punjab Public Safety Act 1949 of which sec tion 7 is a part was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act 1935 is 611 read with Entry 1 of List II of the Seventh Schedule to that Act which includes among other matters "public order." This expression in the general sense may be construed to have reference to the maintenance of what is generally known as law and order in the Province and this is confirmed by the words which follow it in Entry 1 of List II and which have been put within brackets viz. "but not including the use of naval military or air forces or any other armed forces of the Union in aid of the civil power. " It is clear that anything which affects public tranquillity within the State or the Province will also affect public order and the State Legislature is therefore competent to frame laws on matters relating to public tranquillity and public order. It was not disputed that under the Government of India Act 1935 (under which the impugned Act was passed) it was the responsibility of each Province to deal with all internal disorders whatever their magnitude may be and to preserve public tranquillity and order within the Province. At this stage it will be convenient to consider the meaning of another expression "public safety" which is used throughout the impugned Act and which is also chosen by its framers for its title. This expression though it has been variously used in different contexts (see the Indian Penal Code Ch. XIV) has now acquired a well recognized meaning in relation to an Act like the impugned Act as a result of a long course of legislative practice and may be taken to denote safety or security of the State. In this sense it was used in the Defence of the Realm (Consolidation) Act 1914 as well as the Defence of India Act. and this is how it was judicially interpreted in Rex vs Governor of Wormwood Scrubbs Prison(1). The headnote of this case runs as follows "By section 1 of the Defence of the Realm (Consolidation) Act 1914 power was given to His Majesty in Council 'during the continuance of the present war to issue regula tions . for securing the public safety and the de fence of the realm ' : (1) 612 Held that the regulations thereby authorized were not limited to regulations for the protection of the country against foreign enemies but included regulations designed for the prevention of internal disorder and rebellion " Thus 'public order ' and 'public safety ' are allied matters but in order to appreciate how they stand in relation to each other it seems best to direct our atten tion to the opposite concepts which we may for convenience of reference respectively label as 'public disorder ' and 'public unsafety '. If 'public safety ' is as we have seen equivalent to 'security of the State ' what I have designat ed as public unsafety may be regarded as equivalent to 'insecurity of the State '. When we approach the matter in this way we find that while 'public disorder ' iS wide enough to cover a small riot or an affray and other cases where peace is disturbed by or affects a small group of persons 'public unsafety ' (or insecurity of the State) will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State. In order to understand the scope of the Act it will be necessary to note that in the Act "maintenance of public order" always occurs in juxtaposition with "public safety" and the Act itself is called "The East Punjab Public Safety Act. " The prominence thus given to 'public safety ' strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the State or cases in which owing to some kind of emergency or a grave situation having arisen even public disorders of comparatively small dimensions may have far reaching effects on the security of the State. It is to be noted that the Act purports to provide "special measures to ensure public safety and maintenance of public order. " The words "special measures" are rather important because they show that the Act was not intended for ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal Code and other existing laws and 613 with these the Act which purports to be of a temporary Act is not apparently concerned. It is concerned with special measures which would presumably be required for special cases or special situations. Once this important fact is grasped and the Act is viewed in the proper perspective much of the confusion which has been created in the course of the arguments will disappear. The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression "public order used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insig nificant breaches or those of a grave or serious nature. This is, in my opinion, approaching the case from a wrong angle. The Act is a piece of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures. It was argued that public safety" and "maintenance of public order" are used in the Act disjunctively and they are separated by the word "or" and not "and and therefore we cannot rule out the possibility of the Act providing for ordinary as well as serious cases of disturbance of public order and tranquillity. This, as I have already indicated, is a somewhat narrow and technical approach to the question. In construing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so construed as to bear a reasonable meaning consistent with its validity. We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should not be confused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order, 614 In my opinion, the word or" is used here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used almost inter changeably in the context. I think that "public order" may well be paraphrased in the context as public tranquillity and the words "public safety" and "public order" may be read as equivalent to "security of the State" and "public tran quillity. " I will now advert once more to clause (2) of article 19 and state what I consider to be the reason for inserting in it the words "matter which undermines the security of or tends to overthrow the State. " It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous obscene or seditious words or writings: (see Halsbury 's Laws of England 2nd Edition Vol. II page 391). This is prac tically what has been said in clause (2) of article 19 with this difference only that instead of using the words "law relating to sedition the framers of the Constitution have used the words mentioned above. It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be. The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in Niharendu Dutt Majumdar vs The King(1) which has been quoted again and again and in which Gwyer C.J. laid down that public disor der, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and the acts or words complained of must either incite to disorder or (1) 615 must be such as to satisfy reasonable men that is their intention or tendency. " For this view the learned Chief Justice relied on certain observations of Fitzgerald J. in R.v. Sullivan (1) and he also added that he was content to adopt "the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law. " There is no doubt that what Gwyer C.J. has stated in that case represents the view of a number of Judges and authors and was also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury in a case relating to the law of sedition JR. vs Burns(2) said : "The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by Stephen J. who has undoubtedly a greater knowledge of crimi nal law than any other Judge who sits upon the Bench and what he has said upon the subject of sedition was submitted to the other Judges who sometime back were engaged with him in drafting a criminal code and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present. " The decision of Gwyer C.J. held the field for several years until the Privy Council dealing with a case under the Defence of India Rules expressed the view in King Emper or vs Sadhashiv Narayan Bhalerao(3) that the test laid down by the learned Chief Justice was not applicable in India where the offence under section 124A of the Indian Penal Code should be construed with reference to the words used in that section. They also added : "The word 'sedition ' does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A and is not an operative part of the section but merely provides the name by which the crime defined in the section will be known. (1) [1868] 11 Cox c.c. 44. (2) [1886] 16 cox 855. (8) 74 I.A. 616 There can be no justification for restricting the contents of the section by the marginal note. In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions some of which are referred to by the Chief Justice but these decisions are not relevant when you have a statutory definition of that which is termed sedition as we have in the present case. Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that 'the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency. " The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19 (2) and if it was to be used in what sense it was to be used. On the one hand they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquil lity and was connected in some way or other with public disorder; and on the other hand there was the pronounce ment of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any inten tion or tendency to incite disorder. In these circumstances it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedi tion such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State. 617 It will not be out of place to quote here the following passage from Stephen 's Criminal Law of England (Vol. II pp. 242 and 243) : "It often happens however that the public peace is disturbed by offences which without tending to the subver sion of the existing political constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind. No definite line can be drawn between insur rections of this sort ordinary riots and unlawful assem blies. The difference between a meeting stormy enough to cause well founded fear of a breach of the peace and a civil war the result of which may determine the course of a nation 's history for centuries is a difference of degree. Unlawful assemblies riots insurrections rebellions levying of war are offences which run into each other and are not capable of being marked off by perfectly definite boundaries All of them have in common one feature namely that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Another class of offences against public tranquillity are those in which no actual force is either employed or displayed but in which steps are taken tending to cause it. These are the formation of secret societies seditious conspiracies libels or words spoken. Under these two heads all offences against the internal public tranquillity of the State may be arranged. " This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which 618 affect tranquillity of a considerable number of persons or an extensive local area and (b) those not accompanied by violence but tending to cause it such as seditious utter ances seditious conspiracies etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked and as I have tried to point out there is a good deal of authorita tive opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State. In principle then it would not have been logical to refer to sedition in clause (2) of article 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the State. It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matters which are as detrimental to the security of the State as sedition. If the Act is to be viewed as I have suggested it is difficult to hold that section 7 (1) (c) falls outside the ambit of article 19 (2). That clause clearly states that nothing in clause (1) (a) shall affect the operation of any existing law relating to any matter which undermines the security of or tends to overthrow the State. I have tried to show that public disorders and disturbance of public tranquillity do undermine the security of the State and if the Act is a law aimed at preventing such disorders it fulfils the requirement of the Constitution. It is needless to add that the word "State" has been defined in article 12 of the Constitution to include "the Government and Parlia ment of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. " I find that section 20 of the impugned Act provides that the Provincial Government may by notification 619 declare that the whole or any part of the Province as may be specified in the notification is a dangerously disturbed area. This provision has some bearing on the aim and object of the Act and we cannot overlook it when considering its scope. It may be incidentally mentioned that we have been informed that under this section Delhi Province has been notified to be a "dangerously disturbed area. " It must be recognized that freedom of speech and expres sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard ed by the Courts. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government and the tendency of modern jurists is to deprecate censorship though they all agree that "liberty of the press" is not to be confused with its "licentiousness. " But the Constitution itself has pre scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case comes within those limits. In my opinion the law which is impugned is fully saved by article 19 (2) and if it cannot be successfully assailed it is not possible to grant the remedy which the petitioners are seeking here. As has been stated already the order which is impugned in this case recites that the weekly Organizer has been publishing highly objectionable matter constituting a threat to public law and order" and that the action which it is proposed to take against the petitioners "is necessary for the purpose of preventing or combating activities prejudi cial to public safety or the maintenance of public order. " These facts are supported by an affidavit sworn by the Home Secretary to the Chief Commissioner who also states among other things that the order in question was passed by the Chief Commissioner in consultation with the Central Press Advisory Committee which is an independent body elected by the All India Newspaper Editors ' Conference and is composed of 620 representatives of some of the leading papers such as The Hindustan Times Statesman etc. In my opinion there can be no doubt that the Chief Commissioner has purported to act in this case within the sphere within which he is permitted to act under the law and it is beyond the power of this Court to grant the reliefs claimed by the petitioners. In these circumstances I would dismiss the petitioners ' application. Petition allowed. Agent for the petitioners: Ganpat Rai.

Section 7 (1) (c) of the East Punjab Public Safety Act 1949 as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may by order in writing addressed to a a printer publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J. PATANJALI SASTRI MEHR CHAND MAHAJAN MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order it was not a law relating to "a matter which undermines the security of or tends to overthrow the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet prominence given in the Act to public safety the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al show that preservation of public safety is the dominant purpose of the Act and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.

XXXVII of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are set out in the judgment. B. Banerji for the petitioner. M.C. Setalvad Attorney General for India (Gyan Chand with him) for the opposite party. 522 1950. May 26. The following judgments were delivered: KANIA C.J. This is an application for a writ of 'certiorari and prohibition under article 32 of the Constitution of India. The petitioner who is the President of the All India Hindu Mahasabha since December 1949 was served with an order of externment dated the gist of March 1950 that night. By that order he is directed by the District Magis trate Delhi not to remain in the Delhi District and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act 1949 under which the order was made is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India. He further contends that the grounds of the order served on him are vague insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate Delhi was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950 Brij nandan vs The State of Bihar and of the High Court of Bombay in Criminal Application No. 114 of 1950 re Jai singhbhai Ishwarlal Modi. It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article. There is no doubt that by the order of extern 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows: "19. (5) Nothing in subclauses (d) (e) and (f) of the said clause shall affect the operation of any exist ing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. " It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub clause (d)in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable the Court has not to consider whether the law imposing the restrictions is rea sonable. The other interpretation is that while the Consti tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub clause 19 (1) (d) the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions on the exercise of the right are reasonable the Court has to decide not only on the extent and nature of the restric tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts although the impugned Acts of the State Legislatures before them were materially different on cer tain important points have given clause (5) of article 19 the latter meaning. 524 In my opinion clause (5) must be given its full mean ing. The question which the Court has to consider is wheth er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the 'clause. The Court on either inter pretation will be entitled to consider whether the re strictions on the right to move throughout India i.e both as regards the territory and the duration are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment the question whether such period of externment is reasonable being the substan tive part is necessarily for the consideration of the Court under clause (5). Similarly if the law provides the proce dure under which the exercise of the right may be restrict ed the same is also for the consideration of the Court as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right is in any way unjustifiably enlarged. it seems that the narrow construc tion sought to be put on the expression to restrict the Court 's power to consider only the substantive law on the point is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not con cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful. 525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate whose satisfaction was final. That decision was not open to review by the Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen 's right. In my opinion this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an offi cer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unrea sonable restriction on the exercise of the citizen 's right. So far as the Bombay High Court is concerned Chagla C.J. appears to have decided this point against the contention of the petitioner. It was next urged that under section 4 (3) the order made by the District Magistrate shall not unless the Pro vincial Government by special order otherwise direct remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the ex ternee had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citi zen 's right. In this connection it may be pointed out that in respect of preventive detention which is a more severe restriction on the right of the citizen the Constitution itself under article 22 (4) to (7) permits preventive deten tion for three months without any remedy. The period of three months therefore prima facie does not appear unreason able. Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province and similarly 526 the District Magistrate is not permitted to order the exclu sion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period but in that connec tion the fact that the whole Act is to remain in force only up to the 14th August 1951 cannot be overlooked. More over this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec tion. In my opinion it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion therefore this contention of the petitioner cannot be accepted. was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen. Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4). While the word "may" ordinarily conveys the idea of a discretion and not compulsion reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him. Therefore that right has to be read as given under the first part of section 4 (6). That can be done only by reading the word "may" for that purpose as having the mean ing of "shall" If the word "may" has to be so read for that purpose it appears to be against the well recognised canons of construction to 527 read the same "may" as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of "shall" on "may" in the clause I am unduly straining the language used in the clause. So read this argument must fail. It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board neces sarily implies a consideration of the case by such board. The absence of an express statement to that effect in the impugned Act does not invalidate the Act. It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague insufficient and incomplete. The grounds are stated as follows : "Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order it is considered necessary to order you to leave Delhi. " These grounds cannot be described as vague insufficient or incomplete. It is expressly stated that the activities of the petitioner who is the President of the Hindu Maha sabha since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi ties. It is further stated that having regard to the recent disturbance in Delhi the population of which is composed of both these communities the excitement of such hatred is likely to be dangerous to the peace and maintenance of law and order. Apart from being vague I think that these grounds are specific and if honestly be lieved can support the order. The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate. I therefore think that this contention of the petitioner must be rejected. The result is that the petition fails and is dismissed. FAZL ALI J. I agree. PATANJALI SASTRI J. I agree that this application must fail. As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt ed I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article and I hold myself free to deal with that point when it becomes necessary to do so. MAHAJAN J. I concur in the judgment which my brother Mukh erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment. MUKHERJEA J. This is an application under article 32 of the Constitution praying for quashing of an externment order made by the District Magistrate of Delhi against the petitioner Dr. N.B. Khare on 31st March 1950 by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis sion of the District Magistrate of that place. This order of the Government of Madhya Bharat we are told has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding. The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act 1949 under which the District Magistrate of Delhi purported to make the externment order became void and ceased to be operative after the new Consti tution came into force by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law. In order to appreciate the merits of this contention it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution upon which reliance has been placed by the learned counsel for the petitioner. The East Punjab Public Safety Act came into force on 29th March 1949 and its object as stated in the preamble is to provide for special measures to ensure public safety and maintenance of public order. Section 4 (1) of the Act provides: "The Provincial Government or the District Magistrate if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi cial to the public safety or the maintenance of public order it is necessary so to do may by order in writing give anyone or more of the following directions namely that such person . . . . . . . . . (c) shall remove himself from and shall not return to any area that may be specified in the order." 530 Sub section (3) of the section lays down that "An order under sub section (1) made by the District Magistrate shall not unless the Provincial Government by special order otherwise directs remain in force for more than three months from the making thereof." The contention of the petitioner is that the restrictive provisions mentioned above under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India. " This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows: "Nothing in sub clauses (d) (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." Thus the primary question which requires consideration is whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court. If the Courts 'hold the restrictions imposed by the law to be reasonable the petitioner would certainly have no remedy. If on the other hand they are held to be unreasonable article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution. 531 It has been urged though somewhat faintly by the learned Attorney General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter State restrictions which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind it is said cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpreta tion is in my opinion not at all warranted by the language of the sub clause. What article 19 (1) (d) of the Constitu tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4 (1) of the East Punjab Public Safety Act 1949 authorises the Provin cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision repre sents an interference with the. fundamental right guaran teed by article 19 (1) (d) of the Constitution. The contro versy therefore narrows down to this whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19. With regard to clause (5) the learned AttorneyGeneral points out at the outset that the word "reasonable" occur ring in the clause qualifies "restrictions" and not "law '". It is argued that in applying the clause all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged ' according to the learned Attorney General from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry. I do agree that in clause (5) the adjective 'reasonable ' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric tions we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant cir cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restric tions imposed by a law may arise as much from the substan tive part of the law as from its procedural portion. Thus although I agree with the learned Attorney General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement. Coming now to the provisions of the impugned Act, Mr. Baner jee 's main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre requisite for imposition of the restrictions is the personal satisfaction of certain indi viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination. It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order. Under section 4 (1) (c) of the Act, the Provincial Govern ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi bility of maintaining order and public peace in any particu lar district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle. In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac tion and not on materials which satisfy certain objective tests. But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag grieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub section (3) of section 4 which deals with duration of the orders made under the various clauses of sub section (1). It will be seen from this sub section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all. I have no hesi tation in holding that the provision of sub section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground. One could understand that the exigen cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their ' own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub section (6) of section 4 and it runs as follows: When an order has been made in respect of any person under any of the clauses under section 4 sub section (1) or sub section (2) the grounds of it may be communicated to him by the authority making the order and in any case when the order is to be in force for more than three months he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under section 3 sub section (4). " It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi cate the grounds upon which the order is made to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub section seems to imply that when the order is to remain in force for more than three months the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3 sub section (4) of the Act. The right however is purely illusory as would appear from the fact that even in cases where the order is to be opera tive for more than three months there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation if he is not told on what grounds the order was passed. In my opinion this is an equally unreasonable provision and neither sub section (3) nor sub section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter ests of the general public. My conclusion therefore is that under article 13 (1) of the Indian Constitution these provisions of the Act became void and inoperative after the Constitution came into 536 force and consequently the order made by the District Magistrate in the present case cannot stand. I would therefore allow the application and quash the externment order that has been passed against the petition er. Petition dismissed. Agent for the petitioner: Ganpat Rai. Agent for the opposite party: P.A. Mehta.

Section 4 sub section (1) (c) of the East Punjab Public Safety Act of 1949 which was passed on the 29th March 1949 and was to be in force until the 14th August 1951 provided that "The Provincial Government or the District Magistrate if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so may by order in writing give a direction that such person shall remove himself from and shall not return to any area that may be specified in the order. " Sub section (3) of section 4 provided that "an order under sub section (1) made by the District Magistrate shall not unless the Provincial Goverment by special order otherwise directs remain in force for more than three months from the making thereof and sub section (6) laid down that when an order has been made in respect of any person under any of the clauses under section 4 sub section (1) or sub section (9.) the grounds of it may be communicated to him by the authority making the order and in any case when the order is to be in force for more then three months he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under section 3 sub section " The petitioner against whom an order under (1) (c) of the Act was passed applied to the Court under article 39 of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo ry of India which was guaranteed by article 19 (1) (d) of the Constitution and were accordingly void under article 13 (1) of the Constitution: Held per KANIA C.J. FAZL ALl and PATANJALI SASTRI J3. (MAHAJAN and MUKHERJEA JJ. dissenting) (i) that there was nothing unreasonable in the provision contained in sub section (1) (c) empowering the Provincial Government or the Dis trict Magistrate to make an externment order and making their satisfaction as to the necessity of making such an order final or in the provisions contained in sub section (3) of section 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order or keep alive an order made by a District Magistrate for a period exceeding three months without fixing any time limit; (ii) with regard to sub section (6) the word "may" in the expression "may communicate" must in the context be read as meaning "shall" and under the sub sec tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric tions imposed by the above mentioned provisions of the Act upon the fundamental right guaranteed by article (19) (1) (d) were not therefore unreasonable restrictions within the meaning 01 article 19 (5) and the provisions of the Act were not void under article 13 (1) and the order of externment was not illegal. Per MUKHERJEA J. (MAHAJAN J. concurring) Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description and section 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov ernment or the District Magistrate on their own personal satisfaction and not on materials which satisfy certain objective tests yet the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor tunity to say what he has got to say against the order; and inasmuch as sub section (3) of section 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period the provisions of sub section (3) are manifestly unrea sonable. The provisions of sub section (6)of section 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected the grounds upon which the order is made. Neither sub section (3) nor sub section (6) of section 4 can therefore be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of article 19 (5) and these provisions of the Act were consequently void and inoperative under article 13 (1)of the Constitution and the externment order was illegal. Held also per KANIA C.J. FAZL ALI MAHAJAN and MUKH ERJEA JJ. Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by article 19 (1) (d) are reasonable within the meaning of article 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent. The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which and the manner in which the restrictions have been imposed. [PATANJALI SASLUP I J. did not express any opin ion on this point.]

No. XVI of 1950. Appli cation under article 32 of the Constitution for a writ of prohibition and certiorari. The facts are set out in the judgment. C.R.Pattabhi Raman for the petitioner. K. Rajah Ayyar Advocate General of MadraS (Ganapathi Ayyar with him) for the opposite party. May 26. The Judgment of Kania C.J. Mehr Chand Mahajan Mukherjea and Das JJ. was delivered by Patanjali Sastri J. Fazl Ali J. delivered a separate judgment. PATANJALI SASTRI J. The petitioner is the printer publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay. The Government of Madras the respondents herein in exer cise of their powers under section 9 (1 A) of the Madras Maintenance of Public Order Act 1949 (hereinafter referred to as the impugned Act) purported to issue an order No. MS. 1333 dated 1st March 1950 whereby they imposed a ban upon the entry and circulation of the journal in that State. The order was published in the Fort St. George Gazette and the notification ran as follows : "In exercise of the powers conferred by section 9 (I A) of the Madras Maintenance of Public Order Act 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras being satisfied that for the purpose of securing the public safety and the maintenance of public order it is necessary so to do hereby prohibits with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay. " The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan vs The State of Delhi p. 605 infra. 596 speech and expression conferred on him by article 19 (1) (a) of the Constitution and he challenges the validity of section 9 (1 A) of the impugned Act as being void under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate General of Madras appearing on be half of the respondents raised a preliminary objection not indeed to the jurisdiction of this Court to entertain the application under article 32 but to the petitioner resort ing to this Court directly for such relief in the first instance. He contended that as a matter of orderly proce dure the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Crimi nal Procedure Code applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor vs Bisheswar Prasad Sinha (1) where such a rule of practice was enforced in a criminal revision case and called our attention also to certain American decisions Urquhart vs Brown (2) and Hooney vs Kolohan (3) as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the appli cant in Federal and State Courts should be exhausted before the remedy in the Supreme Court be it habeas corpus or certiorari would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court as article 226 does on the (1) I.L.R. 56 All. (2) ; (3) ; 597 High Courts to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part 1II. This Court is thus constituted the protector and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point. Turning now to the merits there can be no doubt that freedom of speech and expression includes freedom of propa gation of ideas and that freedom is ensured by the freedom of circulation. "Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed without circulation the publication would be of little value ": Ex parte Jackson(1). See also LoveIl vs City of Griffin(s). It is therefore perfectly clear that the order of the Gov ernment of Madras would be a violation of the petitioner 's fundamental right under article 19 (1) (a) unless section 9 (1 A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel slander etc. with which we are not concerned in this case) saves the operation of any "existinglaw in so far as it relates to any matter which undermines the security of or tends to overthrow the State. " The question accord ingly arises whether the impugned Act in so far as it purports by section 9 (1 A) to authorise the Provincial Government "for the purpose of securing the public safety or the maintenance of public order to prohibit or regulate the entry into (1) ; (2) ; 598 or the circulation sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State." The impugned Act was passed by the Provincial Legisla ture in exercise of the power conferred upon it by section 100 of the Government of India Act 1935 read with Entry 1 of List II of the Seventh Schedule to that Act which com prises among other matters "public order. " Now "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula tions enforced by the government which they have estab lished. Although section 9 (I A) refers to "securing the public safety" and "the maintenance of public order" as distinct purposes it must be taken that "public safety" is used as a part of the wider concept of public order for if public safety were intended to signify any 'matter distinct from and outside the content of the expression "public order it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety. This indeed was not disputed on behalf of the respondents. But it was urged that the expression public safety" in the impugned Act which is a statute relating to law and order means the security of the Province and therefore ' 'the security of the State" with the meaning of article 19 (2)as "the State" has been defined in article 12 as including among other things the Government and the Legislature of each of the erstwhile Provinces. Much reli ance was placed in support of this view on Rex vs Wormwood Scrubbs Prison(1) where it was held that the phrase "for securing the public safety and the ' defence of. the realm" in section 1 of the Defence of the Realm (Consolidation) Act 1914 was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context in (1) 599 which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety nor does it appear that the words have acquired any technical signification as words of article Public safety" ordinarily means security of the public or their freedom from danger. In that sense anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must however vary according to the context. In the classification of offenCes in the Indian Penal Code for instance Chapter XIV enumerates the "offences affecting the public health safety convenience decency and morals" and it includes rash driving or riding on a public way (section 279) and rash navigation of a vessel (section 280) among others as offences against public safety while Chapter VI lists waging war against the Queen (section 121) sedition (section 124 A) etc. as "offences against the State" because they are calculated to undermine or affect the security of the State and Chapter VIII defines "of fences against the public tranquillity" which include unlaw ful assembly (section 141) rioting (section 146) promot ing enmity between classes (section 153 A) affray (sec tion 159) etc. Although in the context of a statute relat ing to law and order "securing public safety" may not in clude the securing of public health it may well mean secur ing the public against rash driving on a public way and the like and not necessarily the security of the State. It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving or an affray. But whatever ends the impugned Act may have been intended to subserve and whatever aims its framers may have had in view its application and scope cannot in the ab sence of limiting words in the statute itself be restricted to those aggravated forms of prejudicial activity which are calculated to 600 endanger the security of the State. Nor is there any guar antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do not. The Government of India Act 1935 nowhere used the expression" security of the State" though it made provision under section 57 for dealing with crimes of violence intend ed to overthrow the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people the Governor was entrusted with the responsibility of combating the operations of persons who "endangered the peace or tranquillity of the Province" by committing or attempting to commit "crimes of violence intended to overthrow the Govern ment. " Similarly article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the "security of India or any part of the territory thereof is threatened by war or by external ag gression or by internal disturbance. " These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi ty of the State. As Stephen in his 'Criminal Law of England(1) observes: ' ' Unlawful assemblies riots insurrections rebellions levying of war are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature namely that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. " Though all these offences thus involve disturbances of public tranquil lity and are in theory offences against public order the difference between them being only a difference ' of degree yet for the purpose of grading the punishment to be inflict ed in respect of them they may be classified into different minor categories as has been done by (1) Vol. II p. 242. 601 the Indian Penal Code. Similarly the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 (1) has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridge ment of freedom of speech and expression that is to say nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression while the right of peaceable assembly "sub clause (b)" and the right of association "sub clause (c)" may be restricted under clauses (3) and (4) of article 19 in the interests of" public order which in those clauses includes the security of the State. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Sched ule, which refers to the security of a State" and "mainte nance of public order" as distinct subjects of.legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off may be roughly the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differ ences in kind. It is also worthy of note that the word "sedition" which occurred in article 13 (2) of the Draft Constitution pre pared by the Drafting Committee was deleted before the article was finally. passed as article 19 (2). In this connection it may be recalled that the Federal Court had in defining sedition in Niharendu Dutt Majumdar vs The King Emperor (1) held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency" but the Privy Council overruled that 602 decision and emphatically reaffirmed the view expressed in Tilak 's case (1) to the effect that "the offence "consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small " King Emperor vs Sada shiv Narayan Bhalerao (2) Deletion of the word "sedition" from the draft article 13 (2) therefore shows that criticism of Government exciting disaffection or bad feel ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corre sponding Irish formula of "undermining the public order or the authority of the State" article 40 (6) (i) of the Constitution of Eire [1937] did not apparently find favour with the framers of the Indian Constitution. Thus very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that freedom of speech and of the press lay at the founda tion of all democratic organisations for without free political discussion no public education so essential for the proper functioning of the processes of popular govern ment is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution that it is better to leave a few of its noxious branches to their luxuriant growth than by pruning them away to injure the vigour of those yielding the proper fruits.": [Quoted in Near vs Minnesotta (3)]. We are therefore of opinion 'that unless a law restrict ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation under clause (2) of article 19 although the (1) (21 L.R. 74 I A. 89. (8) 282U.S 607 717 8. 603 restrictions which it seeks to impose may have been con ceived generally in the interests of public order. It fol lows that section 9 (1 A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2) and is there fore void and unconstitutional. It was however argued that section 9 (1 A) could not be considered wholly void as under article 13 (1) an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more. In so far as the securing of the public safety or the maintenance of public order would include the ' security of the State the impugned provision as applied to the latter purpose was covered by clause (2) of article 19 and must it was said be held to be valid. We are unable to accede to this contention. Where a law purports to authorise the imposi tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right it is not possible to uphold it even so far as it may be applied within the constitutional lim its as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out it must be held to be wholly unconstitutional and void. In other words clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be constitutional and valid to any extent. The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner 's journal in the State of Madras is hereby quashed. FAZL ALI J. For the reasons given by me in Brij Bhushan and Another vs The State(1) which practically 605. 604 involves the same question as is involved in this case I hold that the reliefs sought by the petitioner cannot be granted. In this view I would dismiss this petition but I should like to add a few observations to supplement what I have said in the other case. It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the peace and tranquillity of the Prov ince" and affecting "public safety" will be a matter which undermines the security of the State or not. I have bor rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative as I think it must be then the impugned law which prohibits entry into the State of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 (2)of the Constitution. From the trend of the arguments addressed to us it would appear that if a docu ment is seditious its entry could be validly prohibited because sedition is a matter which undermines the security of the State; but if on the other hand the document is calculated to disturb public tranquillity and affect public safety its entry cannot be prohibited because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. Speaking for myself I cannot understand this argument. In Brij Bhushan and Another vs The State(1) I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an of fence against public tranquillity. If so how could sedi tion be a matter which would undermine the security of the State and public disorders and disturbance of public safety will not be such a matter? It was argued that a small riot or an affray will not (1) ; 605 undermine the security of the State but to this line of argument there is a two fold answer : (1) The Act as its preamble shows is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province (2) There are de grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also from the layman 's point of view be a matter which undermines the security of the State but that would not affect the law which aims at checking sedition. It was also said that the law as it stands may be misused by the State executive but misuse of the law is one thing and its being unconstitutional is another. We are here concerned with the latter aspect only. I shall not pursue the matter further as I have said enough on the subject in the connected case. Petition allowed. Agent for the petitioner: K. J. Kale. Agent for the opposite party : P. A. Mehta.

Held by the Full Court (i) (overruling a preliminary objection) Under the Constitution the Supreme Court is constituted the protector and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringement of such rights although such applications are made to the Court in the first in stance without resort to a High Court having concurrent jurisdiction in the matter. Urquhart vs Brown ; and Hooney vs Kolohan ; distinguished. (ii) Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation. Ex parte Jackson ; and Lovell vs City of Griffin ; referred to. Held per KANIA C.J. PATANJALI SASTRI MEHR CHAND MAHAJAN MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting): (i) Apart from libel slander etc. unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the over throw of it such law cannot fall within the reservation under cl. (2) of article 19 of the Constitution although the restrictions which it seeks to impose may have been con ceived generally in the interests of public order. Section 9 (1 A) of the Madras Maintenance of Public Order Act XXXIII of 1949 which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte nance of public order falls outside the scope of authorised restrictions under cl. (2) and is therefore void and uncon stitutional; (ii) Where a law purports to authorise the imposition of restrictions on a fundamental right in lan guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla tive action affecting such right it is not possible to uphold it even so far as it may be applied within the constitutional limits as it is not severable. So long as the possibilitY of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void. Section 9 (1 A) is therefore wholly unconstitutional and void. Per FAZL ALI J. Restrictions which section 9 (1 A) autho rised are within the provisions of cl. (2) of article 19 of the Constitution and section 9 (1 A)is not therefore unconstitutional or void.(1) Brij Bhushan and Another vs The State ; referred to.

Civil Appeal No. 8 of 1951. Appeal from the judgment and decree dated 12th October 1944 of the High Court of Judicature at Allahabad (Allsop and Malik JJ.)in First Appeal No. 374 of 1941 arising out of a Decree dated 31st July 1941 of the Court of the Civil Judge Moradabad in Original Suit No. 9 of 1941. Bakshi Tek Chand (section K. Kapoor with him) for the appel lant. Achhru Ram (Jwala Prasad with him) for the respondent. February 22. The judgment of the Court was deliv ered by BoSE J. This is a litigation between two branches of a family whose common ancestor was one Megh Raj Singh The family tree is as follows: Megh Raj Singh Jawahar Singh Madan Singh Shankar Lal(d 1884) Brijlal (d. 1889 or (1890) Daughter: Met. Mohan Dei (d. Oct 1929) Kishan Lal Mahabir Prasad Husband: Narain Das (d. 21 5 1940) (d. 1921) Shri Kishan Das Mst. Deoki Jugal Kishore Amar Nath (d.march 1929) (d. 1894) Plff. 1 Plff.2. Dhiyan Singh Jai Bhagwan Singh Deft. 1 Deft. 2 Ghas Ram Onkar Prasad The dispute is about property which according to the plaintiffs formed part of Shanker Lal 's estate. The plain tiffs state that the two branches of the family were sepa rate at all material times; that on 480 Shanker Lal 's death in 1884 his daughter Mst. Mohan Dei (the defendants ' grandmother) succeeded to a limited estate. The reversion opened out on her death in October 1929 and the plaintiffs are entitled as the next reversioners for Mst. Mohan Dei 's son Shri Kishan Das predeceased her. The defendants admit that Shanker Lal was separate from the other branch of the family. They divide the property which their grandmother Mst. Mohan Dei possessed into two categories. First there was property which they say be longed to her. These are properties which according to them she purchased or obtained under mortgages in her own right. Next there were properties which belonged exclu sively to her father and to which she succeeded as daughter. On Shanker Lal 's death disputes arose between Shanker Lal 's father 's brother 's son Brijlal (the plaintiffs ' grandfa ther) and the defendants ' grandmother Mst. Mohan Dei. Brijlal claimed the entire estate by survivorship his allegation being that Shanker Lal died in a state of joint ness with him and that all the properties were joint family properties. This dispute was referred to arbitration and an award was delivered. Under it Mst. Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal A division was ef fected accordingly and ever since that is to say from 21 12 1884 the date of the award down to 26 3 1941 the date of the suit each branch has been in separate and uninter rupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner. The defendants claim that the plaintiffs are bound by this award and are in any event estopped. The plaintiffs lost in the first Court but won in the High Court. The defendants appeal. The first question is about the nature of the award. The defendants say that it gave Mst. Mohan Dei an absolute estate. The plaintiffs deny this and say she obtained only a limited estate. In our opinion the defendants are right. 481 The question at issue is a simple one of construction. The award is exhibit A 1. The operative portion runs thus: "Having regard to the specifications give above Brij Lal first party and Musammat Mohan Devi the deceased 's female issue second party have been held entitled to shares worth Rs. 28 500 and Rs. 42 482 10 0 respective ly in the said properties; and accordingly. two lots have been made and the first lot is allotted to the first party and the second lot to the second party; and henceforth the parties shall have no claim or liability against each other; and each party has become permanent owner (malikmustaqil) of his or her share; and each party should enter in proprietary possession and occupation of his or her respective share. " The underlining is ours. We do not think the words admit of any doubt particu larly as the words "malik mustaqil" have been used: see Ram Gopal vs Nand Lal and Others (1) and Bishunath Prasad Singh vs Chandika Prasad Kumari (2). But it was argued that the award must be viewed as a whole and that certain earlier passages show that this could not have been the intention. ]he passages relied on are these. First the finding that the properties claimed by Mst. Mohan Dei as her own really belonged to Shanker Lal. He had purchased some and acquired others through mortgages in her name but she was only a benamidar and had no title to them. Second that some of the properties in dispute were ancestral and the rest sell acquired though whether with the help of ances tral funds or not the arbitrator was unable to determine. Third the arbitrator 's view of the Hindu law namely that "the brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self acquired property. " And lastly this passage (1) ; at 773.(2)(1933) 60 I.A. 56 at 61 & 62. 482 "Furthermore when the 2nd party (Mohan Dei) has inher ited no property from her husband she in case of getting this share will certainly settle down in Amroha and will make her father 's haveli as her abode and thus the haveli shall remain a bad as heretofore and in this way the de ceased 's name will be perpetuated; and it is positive that after the Musammat this property shall devolve on her son who will be the malik (owner) thereof and later the de scendant of this son will become the owner thereof. " We do not think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do. In our opinion the arbitrator was confused in his mind both as regards the facts as well as regards the law. His view of the law may have been wrong but the words used are in our opinion clear and in the absence of anything which would unambiguously qualify them we must interpret them in their usual sense. Some cases were cited in which the word "malik" and in one case the words "malik mustaqil" were held to import a limited estate because of qualifying circumstances. We think it would be pointless to examine them because we are concerned here with the document before us and even if it be conceded that words which would ordinarily mean one thing can be qualified by other words and circumstances appearing in the same document we are of opinion that the passages and circumstances relied on in this case do not qualify the strong clear and unambiguous words used in this document. The learned counsel for the plaintiffs respondents had to search diligently for the meaning for which he contended in other passages and had to make several assumptions which do not appear on the face of the award as to what the arbitra tor must have thought and must have intended. We are not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made to coincide with either view by calling in aid assumptions of fact about whose existence we can only guess 483 The award was attacked on other grounds also. It was urged among other things that the arbitrator had travelled beyond the terms of his reference in awarding Mst. Mohan Dei an absolute interest. It was also urged that even if Brij lal was bound his son Kishan Lal who did not claim through him but who had an independent title as reversioner to Shanker Lal would not be bound and it was contended that if Kishan Lal was not bound the plaintiffs would not be either. But we need not examine these points because we do not need to proceed on the binding nature of the award. Even if the award be invalid we are of opinion that the plaintiffs ' claim is completely answered by the plea of estoppel. Now it can be conceded that before an estoppel can arise there must be first a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other; second that the other party believing it must have been induced to act on the faith of it; and third that he must have so acted to his detriment. It will be necessary to deal with this in stages and first we will consider whether there was any estoppel against Brijlal. It is beyond dispute that he laid serious claim to the property in 1884. He claimed that he was joint with Shanker Lal and so on Shanker Lal 's death he became entitled to the whole of the estate and that Mst. Mohan Dei had only a right of maintenance. Whether he would have had difficulty in establishing such a claim or indeed whether it would have been impossible for him to do so is wholly immaterial. The fact remains that he pressed his claim and was serious about it so much so that he was able to per suade the arbitrator that he had an immediate right to part of the estate. Mohan Dei on the other hand resisted this claim and contended that she was entitled to separate and exclusive possession and in any event that she was entitled in absolute right to a part of the property. On the facts which now emerge it is evident that Brijlal had no right and that his hopes of one day succeeding as 484 reversioner were remote. Mohan Dei had a son Shri Kishan Das who was the next presumptive reversioner and as the boy was a good deal younger than Brijlal Brijlal 's chances were slim. Actually the boy survived Brijlal by nearly forty years. Brijlal died in 1889or 1890 and the boy did not die till March 1929. Had he lived another eight or nine months he would have succeeded and the plaintiffs would have been nowhere. Now this dispute seriously pressed by both sides was referred to arbitration. It is neither here nor there whether the award was valid whether the decision fell within the scope of the reference or whether it had any binding character in itself. Even if it was wholly invalid it was still open to the parties to say: Never mind whether the arbitrator was right or wrong his decision is fair and sensible so instead of wasting further time and money in useless litigation we will accept it and divide the estate in accordance with his findings. That would have been a perfectly right and proper settlement of the dispute and whether it bound third parties or not it would certainly bind the immediate parties; and that in effect is what they did. By his conduct Brijlal induced Mst. Mohan Dei to be lieve that this would be the case and on the faith of that representation namely the acceptance of the award he induced Mst. Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciable portion of the estate and he himself obtained a substantial advantage to which he would not otherwise have been entitled and enjoyed the benefit of it for the rest of his life; and to his credit be it said he never attempted to go behind his decision. In any event we are clear that that created an estoppel as against Brijlal. In our opinion the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal vs Brij Lal (1). There also there was a dispute between a limited owner and a person who but for an un proved claim (adoption) which he (1) (1919) 45 I.A. 118. 485 put forward had no right to the estate. The dispute was taken to the courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years. Later the succession opened out and the other party to the compromise who by then had stepped into the reversion claimed the rest of the estate which had been assigned to the limited owner against her personal heirs. The Judicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit namely as reversioner he having been a party to the compro mise and having acted on it and induced the other side to alter her position to her detriment was estopped. We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitra tor. makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions are correct. It is true that in one sense a question of title is one of law and it is equally true that there can be no estoppel on a question of law. But every question of law must be grounded on facts and when Brijlal 's conduct is analysed it will be found to entail an assertion by him that he admitted and recognised facts which would in law give Mst. Mohan Dei an absolute interest in the lands awarded to her. It was because of that assertion of fact namely his recognition and admission of the existence of facts which would give Mst. Mohan Dei an absolute interest that she was induced to part with about one third of the property to which Brijlal on a true estimate of the facts as now known had no right. There can be no doubt that she acted to her detriment and there can we think be equally no doubt that she was in duced to do so on the faith of Brijlal 's statements and conduct which induced her to believe that he accepted all the implications of the 63 486 award. But in any event we are clear that Brijlal would have been estopped. The nature of the dispute and the de scription of it given in the award show that there was considerable doubt and certainly much dispute about the true state of affairs. Even if the arbitrator was wholly wrong and even if he had no power to decide as he did it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide. That in our opinion is a representation of an existing fact or set of facts. Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst. Mohan Dei an absolute interest in the suit property. We turn next to his son Kishan Lal. Brijlal died in 1889 or 1890. At that date Mst. Mohan Dei 's son Shri Kishan Das was alive and was the next presumptive reversioner. Brijlal 's sons therefore had no more right to that portion of his estate which was assigned to Brijlal than Brijlal himself. But they took possession and claimed through their father. ]hey did not claim an independent title in them selves and as we know they had no other title at that date. They were therefore in no better position than Brij lal and as Brijlal would have been estopped the estoppel descended to them also because they stepped into his shoes. This would be so even if Brijlal had claimed the property independently for himself which he did not; but much more so as he claimed in joint family rights and evidently acted as karta or manager on behalf of his family. But apart from this there was also an independent estoppel in Kishan Lal. We have said he had no right to this part of the estate when his father died apart from the award. But nevertheless he took possession along with his brother and the two of them treated the property as their own and derived benefit 487 from it. They partitioned the estate between themselves and sold away parts of it to third parties. Kishan Lal knew of the award. He knew that mutation had been effected in accordance with it and possession taken by Brijlal under it and that the rest had been retained by Mst. Mohan Dei. His retention of the property therefore and his continuing to deal with it on the basis of the award indicated his own acceptance of the award and therefore by his acts and conduct he represented that he also like his father admitted the existence of facts which would in law give Mst. Mohan Dei an absolute estate; and further he allowed Mst. Mohan Dei to deal with the estate as her own for she on her part. also acted on the award and claimed absolute rights in the property assigned to her. She dealt with it on that footing and gifted it in that right to her grand sons the contesting defendants on 4th April 1929. Muta tion was effected and Kishan Lal raised no objection. We see then that Brijlal retained possession of property to which he was not entitled for a period of five or six years from 1884 to 1889 or 1890 and induced Mst. Mohan Dei to part with it by representing that he accepted the award and her abso lute title to the rest and after him Kishan Lal and his brother between them enjoyed the benefit of it from 1889 or 1890 down to October 1929 when Mst. Mohan Dei died that is for a further forty years and led Mst. Mohan Dei to believe that they also acknowledged her title to an absolute estate. We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above. Had he questioned the award and reopened the dispute Mst. Mohan Dei would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlal 's asser tion that he too accepted it. Kishan Lal 's inaction over these years with full knowledge of the facts as is evident from the deposition of D.W. 2 Dhiyan Singh whose testimony is uncontradicted and his acceptance of the estate with all its consequential benefits unquestionably creates an estoppel in him. This witness tells us that 488 "Kishanlal always accepted this award and acted upon it. " He qualifies this in cross examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mst. Mohan Dei 's death. The documents filed show it was after so there is no reason why the main portion of his statement which is uncontradicted and which could have been contradicted should not be accepted. In March 1929 Mst. Mohan Dei 's son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner and in October 1929 when the reversion opened out the estate vested in him or rather would have vested in him but for the estoppel. The question therefore is did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion ? We have no doubt he did. The decision of the Judicial Committee which we have just cited Kanhai Lal vs Brijlal(1) is we think clear on that point. Although other reversioners who do not claim through the one who has consented are not bound. the consenting reversioner is estopped. This is beyond dispute when there is an alienation by a limited owner without legal necessity. See Ramgouda Annagouda vs Bhausaheb (2) where the ground of decision was ". .but Annagouda himself being a party to and benefiting by the transaction evidenced thereby was preclud ed from questioning any part of it. " In our opinion the same principles apply to a case of the present kind. It was contended however on the strength of Rangasami Gounden vs Nachiappa Gounden(3) and Mr. Binda Kuer vs Lalitha Prasad(4) that even if Kishan Lal did take posses sion in 1889or 1890 on the strength of a title derived from his father that would not have precluded him from asserting his own rights in a different character when the succession opened (1)(1918) 45 I.A 118. (2) (1927) 54 I.A. 396 at 403. (3) (1919) 46 I.A. 72. (4) (1936) A.I.R. 1936 P.C. 304 at 308. 489 out. Reliance in particular was placed upon page 808 of the latter ruling. In our opinion that decision is to be distinguished. In that case the reversion did not fall in till 1916. Long before that namely in 1868 the next presumptive reversioners entered into a compromise whereby the grandfa ther of one Jairam who figured in that case obtained a good deal more than he Would have been entitled to in the ordi nary way. But for the compromise this grandfather would have got only one anna 12 gundas share whereas due to the compromise he got as much as 2 annas 4 gundas The actual taking of possession was however deferred under the compro mise till the death of one Anandi Kuer. She died in 1885 and on that date Jairam was entitled to his grandfather 's share as both his father and grandfather were dead. Jairam accordingly reaped the benefit of the transaction. But it is to be observed that the extra benefit which he derived was only as to a 12 gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own right under a title which did not spring from the com promise. Jairam lost 1 anna 4 gundas to a creditor Munniram and out of the one anna which he had left from the 2 annas 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500. Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs pur chased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12 gundas to which he had a good and independent title anyway; and of course unless the plaintiffs ' 13 gundas could be assigned with certainty to the 12 gundas it would be impos sible to say that they had obtained any benefit from the compromise. The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise. They had the right to contest 'the 490 position and gamble on the possibility of being able to prove the contrary. Their Lordships added " Unless the plaintiffs ' individual conduct makes it unjust that they should have a place among Bajrangi Lal 's reversioners their legal rights should have effect. " In the other case Rangasami Gounden vs Nachiappa Goun den(1) their Lordships ' decision about this matter turned on the same sort of point: see page 87. The present case is very different. When Kishan Lal took possession of his father 's property he held by virtue of the award and under no other title and for forty years he continued to derive benefit from it. Accordingly he would have been estopped even if he had claimed in a differ ent character as reversioner after the succession opened out. It was conceded that if the estoppel against Kishan Lal enured after October 1929 then the plaintiffs who claim through Kishan Lal would also be estopped. The appeal succeeds. The decree of the High Court is set aside and that of the first Court dismissing the plaintiffs ' claim is restored. Costs here and in the High Court will be borne by the plaintiffs respondents. Appeal allowed. (1) (1919) 46 I.A. 72.

S and B were sons of two brothers respectively. S died in 1884 leaving a daughter M surviving him. On the death of S dispute arose between B and M. B claimed the entire estate by survivorship alleging that S died in a state of jointness with him and that all the properties were joint family properties and M was entitled only to maintenance. The dispute was referred to arbitration and an award was delivered. Under it the suit properties were given to M and the rest of the estate then in dispute was given to B. The operative part of the award stated inter alia that B first party and M the second party were held entitled to speci fied shares in the properties in dispute and each had become permanent owner (Malik Mustaqil) of his or her share. A division was effected and ever since the date of the award in 1884 each branch continued in possession of the proper ties allotted to it and each had been dealing with them as absolute owner. The defendants claimed that the plaintiffs were bound by the award and were in any event estopped from challenging it. In 1941 B 's grandsons instituted a suit claiming the properties allotted to M claiming that on the death of S his daughter M succeeded to a limited estate and reversion opened out on her death in 1929 and the plain tiffs were entitled as next reversioners as M 's son had predeceased her. The defendants (Ms grandsons) alleged that the property possessed by M consisted partly of property which belonged to her and partly of property which belonged exclusively to her father to which she succeeded as daughter. Held that the award gave an absolute estate to M as the words "Malik Mustaqil" were strong. clear and unambiguous and were not qualified by. other words and circumstances appearing in the same document in the present case. Held further. that even if the award be assumed to be invalid the plaintiffs ' claim was barred by the plea of estoppel. There was estoppel against B because by his conduct he induced M to believe that the decision of the arbitrator was fair and reasonable and both the parties would be bound by it and he induced her to act greatly to her detriment and to alter her position by accepting the award and never attempting to go behind it as long 479 as he lived; there was estoppel against B 's sons because it descended to them as they stepped into his shoes and fur ther there was independent estoppel against B 's son K by his acts and conduct as evidenced in this case. There was estoppel against plaintiffs who claimed through their father K.

78 and 79 of 1950. Application under article 32 of the Constitution of India for a writ of mandamus. G.N. Joshi for the petitioners. S.M. Sikri for the respondent. November 8. The judgment 0 the Court was delivered by MAHAJAN J. These two applications for enforcement of the fundamental right guaranteed under article 19 (1) (g) of the Constitution of India have been made by a proprietor and an employee respectively of a bidi manufacturing concern of District Sagar (State of Madhya Pradesh). It is contended that the law in force in the State authorizing it to prohib it the manufacture of bidis in certain villages including the one 761 wherein the applicants reside is inconsistent with the provisions of Part III of the Constitution and is conse quently void. The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act LXIV of 1948 was passed on 19th October 1948 and was the law in force in the State at the commencement of the Constitution. Sections 3 and 4 of the Act are in these terms; " 3. The Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein. (1) The Deputy Commissioner may by general order which shall extend to such villages as he may specify prohibit the manufacture of bidis during the agricultural season. (2) No person residing in a village specified in such order shall during the agricultural season engage himself in the manufacture of bidis and no manufacturer shall during the said season employ any person for the manufacture of bidis. " On the 13th June 1950 an order was issued by the Deputy Commissioner of Sagar under the provisions of the Act for bidding all persons residing in certain villages from engag ing in the manufacture of bidis. On the 19th June 1950 these two petitions were presented to this Court under article 32 of the Constitution challenging the validity of the order as it prejudicially affected the petitioners ' right of freedom of occupation and business. During the pendency of the petitions the season mentioned in the order of the 13th June ran out. A fresh order for the ensuing agricultural season 8th October to 18th November 1950 was issued on 29th September 1950 in the same terms. This order was also challenged in a supplementary petition. Article 19 (1) (g) runs as follows : "All citizens shall have the right to practise any profession or to carry on any occupation trade or busi ness. " 762 The article guarantees freedom of occupation and busi ness. The freedom guaranteed herein is however subject to the limitations imposed by clause (6) of article 19. That clause is in these terms : "Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public reasonable restric tions on the exercise of the right conferred by the said sub clause and in particular nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe or prevent the State from making any law prescribing or empowering any authority to prescribe the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation trade or business. " The point for consideration in these applications is whether the Central Provinces and Berar Act LXIV of 1948 comes within the ambit of this saving clause or is in excess of its provisions. The learned counsel for the petitioners contends that the impugned Act does not impose reasonable restrictions on the exercise of the fundamental right in the interests of the general public but totally negatives it. In order to judge the validity of this contention it is neces sary to examine the impugned Act and some of its provisions. In the preamble to the Act it is stated that it has been enacted to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas. Sections 3 and 4 cited above empower the Deputy Commissioner to prohibit the manufacture of bidis during the agricultural season. The contravention of any of these provisions is made punishable by section 7 of the Act the penalty being imprisonment for a term which may extend to six months or with fine or with both. It was enacted to help in the grow more food campaign and for the purpose of bring ing under the plough considerable areas of fallow land. The question for decision is whether the statute under the guise of protecting public interests arbitrarily 763 interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation; in other words whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 (1) (g) of the Constitution. Unless it is shown that there is a reason able relation of the provisions of the Act to the purpose in view the right of freedom of occupation and business cannot be curtailed by it. The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation that is the choice of a course which reason dictates. Legisla tion which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1) (g) and the social control permitted by clause (6) of article 19 it must be held to be wanting in that quality. Clause (6) in the concluding paragraph particularizes certain instances of the nature of the restrictions that were in the mind of the constitution makers and which have the quality of reasonableness. They afford a guide to the interpretation of the clause and illustrate the extent and nature of the restrictions which according to the statute could be imposed on the freedom guaranteed in clause (g). The statute in substance and effect suspends altogether the right mentioned in article 19 (1) (g) during the agri cultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate ruin. The object of the statute is to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agri cultural labour in the manufacture 764 of bidis during the agricultural season. Even in point of time a restriction may well have been reasonable if it amounted to a regulation of the hours of work in the busi ness. Such legislation though it would limit the field for recruiting persons for the manufacture of bidis and regulate the hours of the working of the industry would not have amounted to a complete stoppage of the business of manufac ture and might well have been within the ambit of clause (6). The effect of the provisions of the Act however has no reasonable relation to the object in view but is so drastic in scope that it goes much in excess of that object. Not only are the provisions of the statute in excess of the requirements of the case but the language employed prohibits a manufacturer of bidis from employing any person m his business no matter wherever that person may be residing. In other words a manufacturer of bidis residing in this area cannot import labour from neighbouring places in the district or province or from outside the province. Such a prohibition on the face of it is of an arbitrary nature inasmuch as it has no relation whatsoever to the object which the legislation seeks to achieve and as such cannot be said to be a reasonable restriction on the exercise of the right. Further the statute seeks to prohibit all persons residing in the notified villages during the agricultural season from engaging themselves in the manufacture of bidis. It cannot be denied that there would be a number of infirm and disabled persons a number of children old women and petty shop keepers residing in these villages who are inca pable of being used for agricultural labour. All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that there are certain classes of persons residing in every village who do not engage in agricultural operations. They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business. There seems no reason for prohibiting them from carrying on this occupation The statute as 765 it stands not only compels those who can be engaged in agricultural work from not taking to other avocations but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood. These provi sions of the statute in our opinion cannot be said to amount to reasonable restrictions on the right of the appli cants and that being so the statute is not in conformity with the provisions of Part III of the Constitution. The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out it must be held to be wholly void. Mr. Sikri for the Government of Madhya Pradesh contends that the legislature of Madhya Pradesh was the proper judge of the reasonableness of the restrictions imposed by the statute that that legislature alone knew the conditions prevailing in the State and it alone could say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the plough and that this Court sitting at this great distance could not judge by its own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. This argument runs counter to the clear provisions of the Con stitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclu sive;it is subject to the supervision by this Court. In the matter of fundamental rights the Supreme Court watches and guards the rights guaranteed by the Constitution and in exercising its functions it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion 98 766 that the impugned statute does not stand the test of reason ableness and is therefore void. The result therefore is that the orders issued by the Deputy Commissioner on 13th June 1950 and 26th September 1950 are void inoperative and ineffective. We therefore direct the respondents not to enforce the provisions con tained in section 4 of the Act against the petitioners in any manner whatsoever. The petitioners will have their costs of these proceedings in the two petitions. Petitions allowed. Agent for the petitioners in Nos. 78 and 79: Rajinder Narain. Agent for the respondent in Nos. 78 and 79: P.A. Mehta.

The Central Provinces and Berar Regulation of Manufac ture of Bidis (Agricultural Purposes) Act LXIV of 1948 a law which was in force at the commencement of the Constitu tion of India provided that" the Deputy Commissioner may by notification fix a period to be an agricultural season with respect to such villages as may be specified therein" and that "the Deputy Commissioner may by general order which shall extend to such villages as he may specify prohibit the manufacture of bidis during the agricultural season. " The Act provided further that" no person residing in a village specified in such order shall during the agricultur al season engage himself in the manufacture of bidis and no manufacturer shall during the said season employ any person for the manufacture of bidis." An order was issued by the Deputy Commissioner under the provisions of the Act forbid ding all persons residing in certain villages from engaging in the manufacture of bidis during a. particular season. A manufacturer of bidis and an employee in a bidi factory residing in one of the said villages applied under article 32 of the Constitution for a writ of mandamus alleging that since the Act prohibited the petitioners from exercising their fundamental right to carry on their trade or business which was guaranteed to them by cl. (1) (g) of article 19 of the Constitution the Act was void: Held (i) that the object of the statute namely to provide measures for the supply of adequate labour for agricultural purposes in bidi manufacturing areas of the Province could well have been achieved by legislation re straining the employment of agricultural labour in the manufacture of bidis during the agriculrural season without prohibiting altogether the manufacture of bidis. As the provisions of the Act had no reasonable relation 760 to the object in view the Act was not a law imposing "reasonable restrictions" within the meaning of cl. (6) of Art 19 and was therefore void. (ii) The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agri cultural labour cannot be held to be valid because the language employed was wide enough to cover restrictions both within and without the limits of constitutionally permissi ble legislative action affecting the right and so long as the possibility of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out it must be held to be wholly void. The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation that is the choice of a course which reason dictates. Legisla tion which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guarnteed in article 19 (1) (g) and the social control permit ted by el. (6) of article 19 it must be held to be wanting in that quality. Held also that the determination by the Legislature of what constitutes a reasonable restriction is not final and conclusive. The Supreme Court has power to consider whether the restrictions imposed by the Legislature are reasonable within the meaning of article 19 cl. (6) and to declare the law void if in its opinion the restrictions are not reasonable.

eal No. 10 of 1950. Appeal by special leave from a judgment of the High Court of Punjab (Falshaw and Soni JJ.) dated 30th December 1949 upholding the conviction of the appellant under sections 302 and 307 read with section 34 of the Indian Penal Code and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore on the 20th July 1949 in Criminal Appeal Case No. 325 of 1949. Jai Gopal Sethi (R. L. Kohli with him) for the appel lant. B.K. Khanna Advocate. General of the Punjab (section M. Sikri with him) for the respondent. October 17. The judgment of the court was deliv ered by FAZL ALI J. This is an appeal by special leave from the judgment of the High Court of Punjab upholding the convic tion of the appellant. Mohinder Singh under sections 302 and 307 read with section 34 of the Indian Penal Code and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore. The case for the prosecution which has been substantial ly accepted by the trial Judge and the High Court is briefly as follows. Sometime in January 1949 one Bachittar Singh brother of Dalip Singh who is said to have been murdered lodged a complaint before the NaibTehsildar at Zira to the effect that a tree belonging to him had been cut by 7 per sons including Mohinder Singh the appellant. On the 28th February 1949 which was the date fixed for the hearing of the case before the Naib TehsiIdar Jita Singh and Dalip Singh the two brothers of Bachittar Singh were attacked by the appellant and one Gurnam Singh a lad of 17 near a Gurdwara at about mid day when 823 they were returning from their field. Jita Singh was then carrying a load of fodder on his head while Dalip Singh had sickles in his hand. Jita Singh was the first to be at tacked near a tailor 's shop by Mohinder Singh who fired at him from behind hitting him on the neck whereupon he fell down together with the bundle of fodder. Dalip Singh who was following Jita Singh then ran backwards and he was chased by Gurnam Singh round the outer boundary of a tank which was close by. Mohinder Singh ran on the other side of the tank in the opposite direction and confronted him and shot him with a gun on the chest whereupon he fell down. Meanwhile Gurnam Singh had also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singh 's ear while he was lying sideways. The injuries proved fatal and Dalip Singh died on the spot. The same day at 3 p.m. Jita Singh went to the police station at Dharamkot which is at a distance of 3 miles from village Augar where the occurrence had taken place and lodged a first information report charging Mohinder Singh with having caused injury to him and Mohinder Singh and Gurnam Singh with the murder of Dalip Singh; and the police after investigating the case sent up a charge sheet against the two accused persons. Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code. The appellant was sentenced to death under section 302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth. They were also sentenced to 3 years ' rigorous imprisonment each under section 307 read with section 34 of the Indian Penal Code. It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post mortem on his body in these words: " 1. An irregularly round gun shot wound on the left temporal region 1" diameter. The wound is 22" behind outer canthus of left eye its upper portion is at a level with the top of the pinna of the left ear 824 behind it commences at the cartilages of the ear which are broken. Brain is visible in the gap of the wound. An area 4 " x 4 " is blackened the wound being situated in the middle of this area. A gun shot wound 3/4" X 1/2" on the back of right mastoid region upper end of the wound is 1" behind the root of the right ear. Direction is vertically oblique. On dissection the left temporal bone under injury No. 1 is hole and its petrous portion shattered. A linear fracture extends upwards and backwards from the hole into the left parietal and occipital bones. After piercing through the left temporal lobe of the brain the projectile has pierced through the brainstem and emerged out as injury No. 2 holding the mastoid region of the skull on the right side. A gun shot wound 3/4" X 5/8" on the left side of chest 21/2" above and behind the left nipple and 1/2" behind the anterior axillary fold as area 1" below the wound is bruised. A gun shot wound 1/2"X 3/4" on the right side of chest in the mid axillary line. The top of the wound being 1 3/4" from the apex of right axilla and 4 3/4" above and behind the right nipple. A gun shot wound 1/2"x 1/4" on the inner aspect of the right arm upper end of the wound is 11/4" from the top of the anterior axillary fold. A gun shot wound 3/4"X 1/2" on the front of the right arm. Its upper end being 21/2" from the top of the anterior axillary fold. Its distance from injury No. 5 being 1" and it is inter connected with injury No. 5 under the skin. " The doctor has stated in his evidence that in all two projectiles appeared to have hit Dalip Singh and injuries Nos. 1 and 2 were caused by one of them injury No. 1 being the wound of entrance and injury No. 2 being the wound of exit With regard to the other 4 injuries his evidence is as follows : "Injury No. 3 is the wound of entrance of another projectile and No. 4 is the wound of its exit. Wound 825 No. 5 is the wound of its re entrance and wound No. 6 the wound of its final exit from the body." Jita Singh had 4 slight injuries on the back of the neck which are said to have been caused by pellets and two abra sions below the right elbow and right knee said to have been caused by blunt weapons. It may be stated here that when the investigating police officer arrived at the scene of occurrence he found an empty cartridge case at the place where Jita Singh is said to have been fired at and 2 empty cartridge cases and a blood stained cap of a cartridge case near the place where the dead body of Dalip Singh was lying. Later when Mohinder Singh appeared before the police he was asked whether he possessed a gun and he produced a 12 bore gun (exhibit P 16) for which he held a licence. The gun and the empty cartridges were thereupon sent to Dr. Goyle Director of the C.I.D. Laboratory Phillaur and the opinion that he submitted may be summed up as follows : The gun had signs of having been fired but he could not say when it was fired last. The cartridge cases P 10 and P 15 could have been fired through the gun P 16 but he could not say wheth er they were actually fired from that particular gun or a similar gun or guns. He did not make any experiment by firing any cartridge from the gun P 16 nor did he compare the markings on the empty cartridges P 10 and P 15. A notable feature of the case is that the occurrence is said to have taken place in the vicinity of a Gurdwara and some houses but in spite of this fact not a single person of the locality has been cited or examined as a witness by the prosecution. The whole case rests on the evidence of 3 witnesses viz. Jita Singh Harnam Singh and Buta Singh. Jita Singh who had been shot at from behind claims to have seen the two accused firing at his brother. Harnam Singh admittedly lives at a considerable distance from the place of occurrence but has stated that he was coming from another village where he had gone to fetch some medicine for his maternal cousin when he 826 saw the occurrence. Buta Singh who is a tonga driver belongs to a distant village and is somewhat remotely related to Harnam Singh and accounts for his presence near the scene of occurrence by saying that he had come to see Harnarn Singh the evening before. Harnam Singh admitted in his evidence that there was a dispute between him and Mohinder Singh nearly a month before the occurrence about a wall but he also says that the dispute ' had been amicably settled by the panchayat". There is nothing before us to show what the award of the panchayat was and whether or not it left any ill feeling behind. But on the argu ments of the counsel and the apparently trivial motive for which Dalip Singh is said to have been murdered it would appear that among the class of persons with which we are concerned petty quarrels give rise to enmity which does not die soon or easily. After the close of prosecution evidence in the Ses sions Court the appellant was examined under section 342 of the Criminal Procedure Code and he denied that he had fired at Jita Singh and Dalip Singh with the gun P 16 and that Gurnam Singh had fired at Dalip Singh with a rifle. He added that he was not present in village Augur at the time of the alleged occurrence but had gone to Zira to attend the Naib Tehsildar 's court. To establish his plea of alibi he examined 3 witnesses in the court of the Sessions Judge. The first witness was the Naib Tehsildar before whom Bachittar Singh had lodged the complaint and he stated that when the case was called on the 28th February 1949 6 or 7 persons appeared in court. He also proved an application for a taccavi loan which purports to have been filed by the appel lant on the 28th February 1949 and bears his thumb impres sion. He further stated in his evidence that he had passed orders on that application on the 28th February but he did not know Mohinder Singh and therefore could not say who had produced that application before him on that date. The second witness for the appellant was his brother in law Jogindar Singh who had written the application. exhibit D C. He has stated that 827 Mohinder Singh himself was present in the court of the Naib Tehsildar on the 28th February 1949 that he had signed the application (exhibit D C) and that he was also one of the persons who had appeared before the Tehsildar when Bachittar Singh 's case was called out. The third defence witness is a hand writing and fingerprint expert. He has proved that the application (exhibit D C) alleged to have been presented to the Naib Tehsildar on the 28th February bore the thumb impression of the appellant and he has also given evidence to show that certain handwritings which he was asked to compare did not tally. The evidence given by him with regard to these handwritings has a bearing on the assertion made by the appellant in a petition filed before the committing Magistrate to the effect that the original service report of the process peon showing that the appellant also was one of the persons served for appearance before the Naib Tehsildar on the 28th February 1949 had been suppressed and another report with forged handwriting had been substituted in its place. Both the courts below have held that the alibi has not been proved by satisfactory evidence and that the charges against the appellant have been made 'out. It seems that the learned Judges of the High Court were not at all impressed by the evidence of Dr. Goyle which they characterized as unsatisfactory and they were not also confident that the gun exhibit P 16 had been used in causing the injuries to Dalip Singh. This appears from the folio.wing observations made by them in their judgment: "The gun P 16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the gun because of a brass plate at its butt end. We have seen the gun. Its brass plate could be of no use for the identification of the gun. " Again commenting on the nature of the injuries the learned Judges observed as follows : 828 "Another difficulty which is created in this case is the nature of injuries found on the body of Dalip Singh . What kind of bullet it was which though it had blackened the area where it entered the brain showing that it had been fired from not far away did not shatter the brain we do not know. What kind of projectile it was which entered the body (which if the evidence as to be believed was fired at from a few feet at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not known. Mr. Sethi (counsel for the accused) quoted Taylor 's book on medical jurisprudence and Hateher 's book on ballistics and argued that the firing must have been from a place between 600 and 1 200 yards away in order that the projectile may pass through and through the body and not shatter it. That of course pre supposes that the barrel of the gun using the word 'gun ' m ' a generic sense is grooved which causes a projectile to go forward with a rotatory motion of something under a quarter of a million revolutions a minute and travelling at the rate of about 2 000 miles an hour when it leaves the gun . . We do not know whether the barrel of this gun (exhibit P 16) is grooved or not. is a single bar relled gun and is country made. The likelihood is that the barrel is not grooved. " On a careful reading of the judgment under appeal it appears that the learned Judges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case and it seems to us that the evidence which has been adduced falls short of proof in regard to a very mate rial part of the prosecution case. in a case where death is due to injuries or wounds caused by a lethal weapon it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are al leged to have been caused. It is 829 elementary that where the prosecution has a definite or positive case it must prove the whole of that case. In the present case it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed it seems more likely that they were caused by a rifle than by a gun and yet the case for the prosecu tion is that the appellant was armed with a gun and in his examination it was definitely put to him that he was armed with the gun P 16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a fire arm being used at such a close range as is suggested in the evidence. It is clear and it is also the prosecution case that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is in our opinion a gap in the prosecu tion evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses two of whom are mere chance witnesses and not altogether independent persons and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck. The learned Judges of the High Court after commenting upon the entire evidence say in their judgment: " We are thus left with the evidence of the three wit nesses of the prosecution together with the state of wounds as shown by the medical evidence and an unsatisfactory statement of Dr. Goyle. " 106 830 They reject the evidence of Dr. Goyle and they consider the nature of the wounds to have created a serious dificulty in the case. Having arrived at these conclusions it was a serious thing to rest the appellant 's conviction wholly upon the oral testimony in the case which has remained unchecked and unconfirmed by expert evidence. The real position ap pears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissible to use such an expression. This Court as was pointed out in Pritam Singh vs The State (1) will not entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. It seems to us that the present case comes within the rule laid down because the appellant has been convicted notwithstand ing the fact that the evidence is wanting on a most.material part of the prosecution case. This is enough to dispose of this appeal but we are constrained to say that we are not altogether happy about the manner in which the plea of alibi put forward by the appellant has been disposed of by the courts below. Ordi narily tiffs court will not look beyond the findings of fact arrived at by the courts below but we find that in the present case the decision on the plea of alibi has been arrived at in disregard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable stand ard. It is common ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February 1949 which was the date fixed for dealing with Bachittar Singh 's complaint. Ordinarily and without looking at anything else there should have been nothing improbable about his appearance before the Naib Tehsildar on that date but in the present case there is positive (1) 831 evidence that an application for a taccavi loan bearing that date and also bearing the thumb impression the appellant was put up before the Naib Tehsildar and that was dealt with by him on that very day. There is also affirmative evidence of a witness to prove that the appellant was present in the Naib Tehsildar 's court. This witness is undoubtedly closely related to the appellant but his evidence is supported by probability and a written document. One of the points raised by the prosecution was that the summons for appear ance on the 28th February was not served upon Mohinder Singh but such evidence as there is on the record bearing on this point has certain peculiar features. The prosecu tion having cited the Naib Tehsildar and the Ahlmad (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant. This allega tion could have been substantiated in the cross examina tion of the Naib Tehsildar who was examined as a defence witness but nothing was elicited from him to support such a charge. From the evidence of the Naib Tehsildar it appears that on the 5th July 1949 the Public Prosecutor showed him exhibit P.S. (which is an order directing the appearance of the seven persons including the appellant mentioned by Bachittar Singh in his complaint before the Naib Tehsildar on the 28th February 1949). and that he told the Public Prosecutor that 6 or 7 persons appeared in his court. on that date. After this incident on the 6th July 1949 the Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ". The evidence of the process peon is of a somewhat suspicious character because he has conveniently forgotten every material detail. The appellant asserted at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place. An application to this effect was made by him before the committing Magistrate and he also examined a handwriting expert to prove some of his allegations. Neither of the courts below has dealt with the evidence 832 of this expert. The evidence of the Investigating Officer as recorded by the Sessions Judge is to the following effect : "P.B. and P.C. were obtained by me from the headquar ters. Along with P.B. and P.C. the Parvana P.S. was also received by me. After going through the zimnis the witness states that the aforesaid documents P.B. P.C. and P.S. were summoned by the committing Magistrate and were not sent for by the witness. On 16th March 1949 a Foot Constable was certainly sent to Zira to bring the said file. But since the file had been sent to the headquarters therefore the said constable returned quite blank. I never inspected this file at the headquarters. " The most material document with which we are concerned is P.S. which should have contained an endorsement of serv ice of summons on the persons against whom Bachittar Singh had complained. It is clear from the first part of the evidence of the Investigating Officer that he had received the report of the process peon which was endorsed on the back of P.S. from the headquarters but he says later that the papers were sent for but they did not arrive. It is surprising that when a document was the subject of so much controversy he should have said by mistake that he had received it. One of the comments made by the learned Ses sions Judge in dealing with the application alleged to have been made by the appellant on the 28th February 1949 for a taccavi loan is that after producing the application before the Naib Tehsildar on that date Mohinder Singh could have reached his village by noon time but on this point the learned Sessions Judge seems to have wholly ignored the evidence of the Naib Tehsildar that he usually dealt with such applications between 12 and 4 P.M. on working days and also the affirmative evidence of Joginder Singh. In our opinion there has been in substance no fair and proper trial in this case and we are constrained to allow this appeal set aside the conviction of the appellant under sections 302 and 307 read with section S4 833 of the Indian Penal Code and direct that he be set at liberty forthwith. In ordinary circumstances we might have remanded the case for a flesh trial but we consider that such a course would in the present case be unfair and contrary to settled practice seeing that the appellant has been in a state of suspense over his sentence of death for more than a year. Appeal allowed.

In a case where death is due to injuries or wounds caused by a lethal weapon it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are have been caused. Where in a case of murder the prosecution case was that the accused shot the deceased with a gun but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun and the nature of the inajuries was also such that the shots must have been fired by more than one person and not by one person only and the prosection had no evidence to show that another person also shot and the High Court though realis ing that there was thus a gap in the prosecution evidence convicted the accused placing reliance on the oral evidence of 3 witnesses which was not disinterested: Held that the present case fell within the rule laid down in Pritam Singh vs The State ([1959] S C R. 453) inas much as the appellant had been convicted notwithstanding the fact that evidence was wanting on a most material part of the prosecution case and the conviction could not therefore be upheld 822 Held also that the standard of proof which is required in regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard.

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