NAWABKHAN ABBASKHAN versus THE STATE OF GUJARAT

Citation: [1974] 3 S.C.R. 427 · Decided: 19-02-1974 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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NAWABKHAN ABBASKHAN 
v. 
THE STATE OF GUJARAT 
February 19, 1974 
[V. R. KRISHNA IYER AND R. S. SARKARIA, ]J.j 
1127 
Do1nbay Police Act, 1951, Sections 56 and 142-Prosecution for contraven-
tion of exten11ne11t order-Pending trial High Court quashing the order u11der 
Art. 226-EQect of quashing-If void ab ini~io-Natural justice. 
The appellant was prosecuted under s. 142 of the Bon1bay Police Act, 1951 
on contravention of an cxternment order issued under s. 56 of that Act. During 
the pendcncy of the criminal trial, the High Court, in a petition under Art. 226 
of the Constitution, quashed the order of extemment on the ground that 
no 
opportunity to show cause was &iven against allegations relating to areas wh:!;· · 
the acts were alleged to have been committed. In criminal trial, the trial court 
acquitted the appellant. On appeal by the St~te the High C6urt convicted the 
appellant. It held that the accused bad re-entered the forbidden area during tht 
currency of the order. The High Court was of the view that the quashing of thL 
order by th: court did not render the order of externment void ad initio but it 
only invalidattd the order with effect from the date of the isstie of the writ 
quashing the order. 
On the question whether the externment order having been quashed by the 
High Court during the pendency of the criminal trial the order had become void 
ob. initio and there being no quit order there was no offence. 
Allowing the appeal, 
HELD : that an order which infringed a fundamental 
freedom passed in 
violation of the audi alteram partem rule was a nullity. 
A determination i<i no 
determination if it is contrary to the constitutional mandate of Art. 19. 
On this 
footing the externment order was of no· effect and its violation was no offence. 
Any order made without hearing the party affected is void and ineffectual 
to 
bind parties from the beginning if the injury is to a constitutionally guaranteed 
right May be-that in ordinary legislation or at common Jaw a Tribunal having 
)Urisdictidn and failing to bear the partie.11 may commit an illegality which may 
render the proceedings voidable when a direct attack was made thereon by way 
of appeal, revision or review. but nullity is the consequence of unconstitutionality 
and so the order of an administrative authority charged with the duty of complv· 
tog with natural justice in the exercise of power before restricting the fundamen-
tal right of a citizen is void ab initio and of no legal efficacy. 
The duty to hear 
menacles his jurisdictional exercise and any act is, in its inception, void except 
when performed in accnrdancc with the conditions laid down in regard to 
hearinr. [432 G. 436 FJ 
An ~rder which is vi;>id ma.y b~ di,rec_tty and collateral!"." challenged in legal 
proceed1n~. An order ts null and void tf the statute cloth1ng the admini<itrati\"c 
tribunal with nower conditions it with the obligation to hear expressly or by 
implication. 
Beyond doubt an order which infringes a 
fu~damental freedom 
passed in violation of the audi alterom parte1n rule is a nullity. 
When n compe-
ten~ ~ourt hol~s such _official act or order invalid, or sets it aside, it operates fro1n 
nativity, that 1s, the impugned act or order was never valid. 
[439 F] 
In the present. case a fuJ!d~mentaJ .right of the petitioner had b:en encroached 
uoon by the Pohce Co~m1ss1oner without due hearing. The 
Court quashed 
that orde~. The legal result !s that the accused .was never guilty of fl'·Jutiog .1n 
order which never legally existed. 
[439 D-E] 
lT~e Cou_rt did not. express its final opinion on the many wideranging prob· 
lems tn public law of 111ega1 orders and violation the~eof by citi,z~n·~.J 
[439 E] 
428 
SUPREME COURT REPORTS 
[ 1974 J 3 S.C.R. 
CRIMINAL APPELLATE JURISDICTION : 
Criminal Appeal No. 83 
A 
of J 970. 
From the judgment and order dated MarGh 5, 1970 of the Gujarat 
High Court at Ahmedabad in Criminal Appeal No. 673 of 1968. 
S. K. Dholakia, for the appellant. 
G. A. Shah and M. N. Shroff, for the respondent. 
The Judgment of the Court was delivered by 
KRISHNA (YER, J. The appeal before us raises a thorny issue of 
smr.e importance which may be epigramaticatly expressed as when 
has the citizen the discretion to disobey an order ? When is a determi-
nation not a determination? This riddle has to be solved in the foggy 
legal light of conflicting decisions and academic opinions, Indian and 
Anglo-American. To appreci

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