1. A proceeding was drawn up on the basis of the police report against the petitioner Kalia alias Afiruddin under section 13(1) of- East Bengal Control of Disorderly and Dangerous Persons (Goondas) Act, 1954 (East Bengal Act IV of 1954) by the Disrtict Magistrate of Dacca sitting as tribunal under the aforesaid Act. The allegations against the petitioner were that he was a dangerous and desperate goonda having history sheet No. 164 at his credit that he has no ostensible means of livelihood and is by habit a bully, extortioner, drunkard and s prostitute- monger that he behaves riotously in public commits offences involving rowdism acts of intimidation and violence and was involved in several criminal cases and that he waft so dangerous and despcrate in nature as to render his being at large without security hazardous to the community. The petitioner pleaded not guilty to the accusation brought against him and his case was that he had been proceeded against due to previous enmity and grudge by the witnesses. The prosecution examined 24 witnesses and the defence also examined witnesses and upon consideration of evidences the Tribunal came to the finding that the petitioner was a goonda by profession, that he frequented prostitutes for immoral purposes, indulged in drinking in public and extorted money and used to commit other acts of intimidation and violence at public and private places and upon such finding declared him as a goonda under subsection (1) of section 13 of Act IV of 1954, directed him to furnish a bond of Rs. 10,000 with two local sureties of the like amount each for a period of two years to be of good behaviour and further directed under section 14 of the said Act that he should not visit any house or quarter inhabited by the prostitutes or drinking and gambling dens. Lastly it was ordered that in case of non-furnishing of the bond, the accused should suffer rigorous imprisonment for the said period of two years with effect from the date of passing the order. Thereafter the petitioner obtained this rule.
2. Mr. M. Mir Kasem Khan appearing on behalf of the petitioner firstly contended that the petitioner is a well-to-do man as he has a house in Zindabahar Lane and is also the owner of an hotel and earns substantial income from the same and con--sequently the Tribunal was wrong in declaring him as 'a goonda. The order declaring the petitioner as goonda is based upon the conduct and habit of the petitioner and not upon any considera--tion whether he is a man of means or not. In the circumstance the contention raised on behalf of the petitioner is of no substance at all. It was next contended on behalf of the petitioner that the order of the Tribunal directing the petitioner to furnish the bond and in default to suffer rigorous imprisonment for two years with effect from the date of order was bad in law, as the petitioner was not given an opportunity to furnish the bond.
3. The learned Deputy Legal Remembrancer who appeared on behalf of the State, on the other hand, contended that there being no express provision in Act IV of 1954 providing for time to furnish the bond, the Tribunal cannot be said to have committed an illegality. It is therefore necessary to examine the relevant provisions of Act IV of 1954 (which will hereafter be referred to as `the Act').
4. Section 1 relates to the title, extent and commencement of the Act, section 2 refers to definitions of the expressions in the Act, section 3 to the constitution of a Tribunal for conducting enquiries under the Act, sections 4 and 5 to powers of the Tribunal and sections 6 to 12 deal with the procedure to be followed by the Tribunal. Section 13 contains two subsections. Subsection (1) specifies the circumstances on the establishment of which a person against whom as inquiry has been held can be declared as a goonda and subsection (2) mentions the circumstances under which he can be declared as a dangerous goonda. Section 14 also contains two subsections. Clause (b) of subsection (1) there ofwhich is relevant for the purpose of this case is quoted below - "14.---While making declaration under section 13 the Tribunal may take such action, as it may deem fit, in one or more of the following ways: -
(1) Where the declaration is that the person complained of is a goonda,
(a) ---------------------------------------------------------------------------
(b) It may require the persons complained of to furnish a bond, with one or more sureties, for such period not exceeding three years and in such amount as may be specified, to be of good behaviour Provided that whether the person complained of is a minor a bond executed by a surety or sureties only, may be accepted."
5. Section 15 relates to publication of an order under section 13, along with a statement of the order or orders, if any, made under section 14. Section 16 contains six subsections, of which subsection (3) is relevant and it is quoted below: - "16: (1) ---------------------------------
(2) ------------------------------------.
(3) Where default is made in furnishing sureties, the Tribunal may direct that the persons for whom such sureties were demanded shall be committed to prison or if he is already in prison, shall be detained in prison, until the sureties furnished or the period for which the security is demanded expires or the Tribunal makes an order for the release of the persons detained, whether conditional or otherwise.".
6. Section 17 relates to the revisional powers of the High Court and it is as follows: - "17. No appeal shall lie from any order made by the Tribunal but in relation to any such order under section 5 or section 13 or section 16, the High Court may call for the record of the case, and if the Tribunal appear-
(a) to have exercised a jurisdiction not vested in it by law,
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally, the High Court may make such direction as it may deem sufficient for the rectification of the error or omission and the Tribunal shall conduct itself accordingly."
7. Section 18 prescribes for enhanced punishment in some cases section 19 lays down the procedure where 'a person absconds or conceals himself, and section 20 enjoins upon every person in.
8. Respect of whom an order has been passed under section 13 of the Act to comply with the direction of the Tribunal to appear for being photographed or for giving his finger expression or specimen writing and signature. Section 21 says that every offence punish--able under the Act shall be cognisable and non-bailable, section 22 bars civil and criminal proceedings against any person r for anything done under the Act and section 23 lays down that the provisions of the Act and any order made or action taken under the Act, shall have effect notwithstanding anything inconsistent therewith contained in any enactment, other than the Act, for the time being in force, and in any instrument having effect by virtue of any such enactment other than the Act. Section 24 contains two subsections which prescribe penalties for breaches of orders. Subsection (1) provides for penalties for breaches of orders made under cause (I) (c) or clause 2 (a) or clause 2 (b) of section 14 and subsection (2) for breach of any order made or direction given under the Act not otherwise provided for. Section 25 relates to appointment and duties of probation officer and section 26, to action to be taken on his report. Section 27 relates to the manner of keeping the record of the proceedings held by the Tribunal and section 28 empowers the Provincial Government to make rules: It appears from a resume of the Act that there is no express provision therein requiring the Tribunal to grant time to a person against whom a declaration under section 13 has been made, to furnish a bond with one or more sureties in accordance with clause (b) of subsection (1) of section 14.
9. Subsection (3) of section 16 prescribes for the breach of 'an order passed under clause (b) of subsection (1) of section 14. The expression "where default is made in furnishing sureties" occurring in subsection (3) of section 16 clearly presupposes that there must be actual failure to furnish sureties before the Tribunal acquires jurisdiction to pass an order under this subsection. Hence the order of the Tribunal in this case requiring the petitioner to furnish bond with sureties and to suffer imprisonment in default appears to be bad in law and it cannot be sustained.
10. The Tribunal appears to have committed a further error of law by ordering that the petitioner should suffer "rigorous imprisonment for the said period of two years". Subsection (3) of section 16, under which the order referred to was passed empowers the Tribunal, in case of default in furnishing sureties, to direct that the person from whom such sureties were demanded shall be committed to prison or if he is already in prison, shall be detained in prison, until the sureties are furnished or the period for which the security is demanded expire. There is no provision there--in empowering the Tribunal to pass an order that the defaulter shall suffer "rigorous imprisonment" for a fixed period. The penalties provided in section 24 of the Act are not applicable in case of a breach of an order made under clause (b) of subsection (1) of section 14 of the Act. The learned Deputy Legal Remembrancer appearing on behalf of the State also frankly conceded that the order imposing rigorous imprisonment for two years against the petitioner could not be supported.
11. It is evidence that the Tribunal had acted illegally in the exercise of its jurisdiction and the errors should be rectified according to the provisions of section 17 of the Act.
12. The result, therefore, is that the Tribunal is directed to release the petitioner immediately on receipt of this order, and grant him reasonable time to furnish the bond in question. If the petitioner fails to furnish the same by the time so granted, the Tribunal shall pass an order in accordance with the provision of subsection (3) of section 16 of the Act.
13. The Rule is accordingly made absolute. Let the order along with the connected record be sent down to the Tribunal at the earlier opportunity.