Brij Narain J.C.
1. This is an application by Dr. Ram Monohar Lohia and six others for a writ of Habeas Corpus. The petitioners alleged that they were wrongfully and illegally arrested on 11-4-1955 at about 5-30 P. M. in the Tikendrajit Park, Imphal when Dr. Ram Monohar Lohia was delivering a speech on the ground that the holding of public meetings was prohibited by an order on the analogy of Section 144, Criminal P. C, dated 17-12-1954, passed i by the District Magistrate, Manipur, within a radius of two miles from the Court of the District Magistrate, Manipur and this order was subsequently substituted by another order dated 21-12-1954 by which the area was increased to 4 miles and both those orders were proclaimed without being published in the Manipnr Gazette, from police van.
On 15-2-1955 the Chief Commissioner, Manipur, published the Notification No. HP/83/54 whereby this order analogus to Section 144, Criminal P. C, was extended for another period of 3 months within, the radius of 4 miles from the Court of the District Magistrate, Manipur.
According to the petitioners the people of Manipur, after the illegal abolition of the Manipur State Legislative Assembly, have been exercising their right Under Article 19 of the Constitution of India in assembling peaceably and in giving expression and making speeches on the subject, but the executive Government have denied them their abovement tioned fundamental rights and arrested various persons under various sections of the Indian Penal Code. Accordingly they formed a reception committee of which S. Nabakumar Singh was elected the Secretary for inviting the petitioners for holding a public meeting on the 11th instant nt the Tikendrajit Park, Imphal. to discuss whether the Legislative Assembly and the Council of Ministers were rightly abolished and whether those should be reinstated. S. Nabakumar Singh applied to the District Magistrate, Manipur on 7-4-1955 for holding the said public meetinjr. but the District Magistrate wanted a guarantee illegally that there would be no disorder, but as no such guarantee could possibly be given as the petitioners could not become responsible for any action of other people present, the District Magistrate refused permission -- on 11-4-1955. The petitioners held a. meeting in, W exercise of their fundamental right under Article 19 of the Constitution, and when even though there was nobody else except 3 or 4 persons who also hurriedly'left the place at the sight of the Inspector General of Police and the District Magistrate coming near them, the District Magistrate told the petitioners that as there was an order Under Section 144, Criminal P. C, prohibiting assemblage of 5 or more persons within a radius of 4 miles from the office of the District Magistrate, Manipur, in which lay the place of their meeting, tire meeting was unlawful and he ordered them to disperse. No time was given to them to disperse and the petitioners were arrested Under Sections 143, 145 and 188, IPC
The petitioners were produced before the Additional District Magistrate, Manipur, 3 hours later, and the latter ordered that the petitioners might go on bail of Rs. 1000/- each otherwise they would be remanded to jail 'bajat' (custody) till 25-4-1955 without assigning any reason for such remand. Inside the jail also the petitioners have alleged, by their affidavit dated 20-4-1955, that they have been physically tortured by the jail warders by being pushed and dragged and some of the petitioners were even thrown down on the floor. It has further been alleged that some in the petitioners have been kept for a day in a single cell being locked up day and night quite contrary to law.
2. On behalf of the opposite parties Shri V. S. Sundararn, District Magistrate, has in his affidavit contended that the present application is misconceived and is not maintainable as there is no scope for interference under Article 226 of the Constitution in this matter. It has been contended that the Constitution of the Manipur State Act ceased to have any force after the integration of the Manipur State with the Union Government, and the Manipur State Legislative Assembly and the Council of Ministers were lawfully abolished. Further contention on behalf of the opposite parties is 'that though the Code of Criminal Procedure has not been expressly extended to this State but die provisions of the Code are strictly followed in the administration, of criminal justice by all Courts including the highest Court of the State, and thus judicial recognition is given to the applicability of the Code subject to any specific provision of the Manipur State Courts Act, 1947, and so the order on the analogy of Section 144, Criminal P. C. could legally be promulgated by the District Magistrate, Maniput, as was done in this case.
The District Magistrate apprehended breach of public peace anil disturbance of public tranquillity, and he was satisfied that a speedy remedy was necessary to maintain public order, and so the order,-; mentioned above were duly promulgated and were brought to the knowledge of the general public and the present petitioners fully knew about these orders before 11-4-1955. The permission to hold the meeting on 11-4-1955 on the Polo Ground (Tikendrajit Park) was not granted as it was apprehended that such a meeting which was to be addressed by Dr. Ram Monohar Lohia, petitioner No. 1, a prominent leader of the P. S. Party, would result in the disturbance of public peace and order. On 11-4-1955 according to the opposite parties, Dr. Ram Monohar Lohia petitioner No. 1 with 11 others including the remaining petitioners assembled in the Polo-ground and a big crowd also gathered there.
On receipt of this information the District Magistrate along with the Inspector General of Police went to the spot and found Dr. Ram Monohar Lohia making a speech advocating movement which occasioned breach of peace in the past. The District Magistrate interrupted him and gave him his identity, informed him of the existence of the order Under Section 144, Criminal P. C. and also showed him the order. Dr. Ram Monohar Lohia answered back that the said order was illegal and was about to continue his speech whereupon the District Magistrate declared this assembly unlawful and commanded it to disperse. At this 5 persons dispersed but Dr. Lohia and six other persons refused to disperse and persisted in holding the meeting, and so they were placed under arrest under Sections 143, 145 and 188, IPC As these petitioners are going to be tried for these substantive offences in due process of law by the Additional District Magistrate, it is contended that the present petitioners are not entitled to maintain the present Writ petition.
3. On behalf of the State the judicial record of G, R. Case No. 213 of 1955 relating to the case against the petitioners Under Sections 143, 145 and 188, IPC was also produced before me and I think the F. I. R. deserves to be taken into consideration. It is as follows:
O. C. Imphal P. S.
Today at about 5-30 P. M. the following 7 persons held a public meeting in the Tikendrajit Park, about Ma mile North-West of Imphal P. S. Within about 50' from the place where they were holding the meeting, there was nobody else except 2/3 persons who also hurriedly left the place at the sight of the I. G. P. anil D. M., Manipur, coming near them. The D. M. told the seven persons, who were together and one of whom, Dr. Lohia, was delivering a speech addressing the public gathering near the main road at a distance of about 50' only from him, that as there was order Under Section 144, Criminal P. C, prohibiting assemblage of five or more persons within a radius of four miles from the office of the D. M., Manipur, in which lay the place of their meeting, the meeting was unlawful and ordered them to disperse. They refused to disperse. Dr. Lohia said to the officers that he was doing his business and that they also might do their own. They were, therefore, arrested. No force was used, against them. The names oi the seven persons are given below:
1. Dr. Rammonohar Lohia.
2. Laisram Achow Singh of Wangkhei.
3. Aribam Tomba Surendra Sarma of Bamon Leikai.
4. Oinam Budhi Singh of Pisum Oinam Leikai.
5. Thongam Kanhai Singh of Waikhom Leikai.
6. Thokchom Chandrasekhor Singh of Thokchom Leikai.
7. Irengbam Bijoy Singh of Uripok Tourangbam Leikai.
So, please register a case Under Section 143/145/188, I.P.C.
The following Police Officers who were also on duty with me at the place will prove the case:
1. Sri M. Kalachand Singh, City Inspector.
2. Sri Kunjakishore Singh, Town S. I.
3. Sri Ibochouba Singh, S. I. of Police and others.
Sd/- L. Gopal Singh.
Deputy Superintendent of Police (1)
4. Shri Sougaijam Nabakumar Singh submitted the following application to the District Magistrate, Manipur on 7-4-1955:
The District Magistrate, Manipur.
Re: Permission for holding a public meeting at Pologround on 11-4-55.
I would be very glad if you would kindly permit us to hold a public meeting at Imphal Polo-ground at 2 P. M.6 P. M. on 11-4-55 by using a mike. The meeting is to be addressed by the Praja Socialist leader, Dr. Ram Monohar Lohia regarding the present Satyagraha movement for Legislative Answerably in Manipur.
I would also request you to permit us to use mike, on that day for publicity purpose for the said meeting within the prohibited area Under Section 144, Criminal P. C.
Thanking you in anticipation.
Sd/- Sougaijam Nabakumar Singh.
5. The facts which are clearly established from the documents referred to above are that Shri S. Nabakumar Singh applied for permission on 7-4-1955 for holding a meeting regarding the present Satyagraha movement for Legislative Assembly in Manipur and this permission was not granted on the ground that a guarantee was not given to the effect that there would be no disorder at this meeting. It further appears from these documents that within about 50' from the place where Dr. Lohia was making a speech there were only 2 or 3 persons who also hurriedly left the place at the sight of the Inspector General of Police and the Districts Magistrate coming near them and so only 7 persons were left at that spot. It has not been specified in die F, 1. R. that any appreciable number of persons were present near the main road and so it can be safely inferred that an appreciable number of persons had not gathered there and the people going on the road might be stopping there for a very short interval just to see what was going on there. The meeting which was being addressed by Dr. Lohia thus appears to have been attended to only by the 7 petitioners.
6. The order under which the present petitioners have been arrested purports to be on the 'analogy' of Section 144, Criminal P. C, which runs as follows:
144. (1) In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub-Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable:
Such Magistrate may, by a written order stating the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
2. An order under this section may, in case of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed 'ex parte.
3. An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
4. Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office.
5. Where such an application is received, the _ Magistrate shall afford the applicant an early opportunity of appearing before him either in person or by pleader and snowing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons far so doing.
6. No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an ''affray, the State Government by notification in the Official Gazette, otherwise directs.
7. There is no doubt that Magistrates are empowered Under Section 144(3), Criminal P. C, to temporarily override private rights for the preservation of the public tranquillity as the preservation of public peace is a paramount function of the Government. The main question which, therefore, arises for determination in this connection would be whether • there was any apprehensiqn of breach of public peace, if one man were to address a gathering of 7 persons only and whether any restriction could legally be imposed even Under Section 144, Criminal P, C, on fundamental rights allowed to the citizens of Indian Union under Article 19(1)(a) and (b) under such circumstances. It has not been alleged in this case that the present petitioners had assembled there with arms or that they were in any way rowdy at the time of their arrest. There is no doubt that ordinarily the question whether there exists sufficient ground for apprehension of the breach of peace, is to be decided by the Magistrate who promulgates order Under Section 144, Criminal P. C. But it is settled law that where there is no apprehension of a breach of peace, a Magistrate should not restrain the liberty of private individuals by means of an order under this section, vide Thaldn Aung Bala v. District Magistrate, Rangoon' AIR 1939 Rang 181 (A), in which it has been laid down that Section 144 deals with urgent eases of nuisance . and apprehended danger of breach of public f peace and where such danger is apprehended and if in consequence thereof an immediate prevention is necessary, the Magistrate specially empowered in that behalf may issue instructions to individuals or the public in general to abstain from certain acts. The power thus conferred on the magistrates is an extraordinary power which enables them to suspend the lawful rights for the public peace and safety. But the Magistrates should bear in mind that every citizen has a right to ventilate his grievances either in the public or in private and ask for redress, and this right cannot be curtailed so long as it is exercised in a lawful manner; and it is illegal assumption of power to issue an order under Section 144, Criminal P. C. on a pretended apprehension of danger of the breach of public peace: vide 'Francis Duke Coleridge Summer v. Jogendra Kumar' AIR 1933 Cal 348 (B); 'Abdul v. Lucky Narain Mundul', 5 Cal 132 (C); Tlafizuddin v. C. Laborde' AIR 1928 All 14 (D) and 'Sunda-ram Chetti v. The Queen', 6 Mad 203 (FB) (E).
8. In 'In re Srikanta Iyer' AIR 1937 Mad 31.1 (F), it was held that where interference with right to speak is expected, opponents should be prohibited from interfering Under Section 144, Criminal P. C. and not the other persons from speaking;, vide also 'Mt. Jasoda Lekhraj v. Emperor' AIR 1939 Sind-167 (G).
9. I have already mentioned above that tile application dated 7-4-1955 referred to above shows that the speeches which were to be delivered in this meeting were regarding the Satyagraha movement for Legislative Assembly in Manipur. If the movement itself is not illegal the speeches for1 strengthening the movement in a non-violent manner, and given before a very limited number of persons cannot possibly be deemed to be disturbing public tranquillity. It has not been disputed before us during the course of arguments that during the time of His Highness the Maharaja Churachand Singh in the year 1938 there was an agitation for creation of Legislative Assembly. After the death of His Highness Maharaja Churachand Singh, the present Maharaja agreed to have a Legislative Assembly and die Manipur State Constitution Act, 1947 was then enacted. The provisions of this Act, if examined in detail, would go to show that His-Highness Maharaja Bodhchandra Singh (the present Maharaja) agreed to the creation of Legislative Assembly as would appear from the following sections:
(3) Government of the State by His Highness the Maharaja: The territories for the time being and hereafter vested in the Maharajah are governed by and in tile name of the Maharajah. All rights, authority and jurisdiction which appertain or are incidental to the Government of such territories arc exercisable by the Maharajah subject to the provision of this Act.
10. This means that the Maharajah agreed to-become a constitutional Ruler.
8. The Maharajah's Prerogatives: (a) All family matters which are the Maharajah's sole concern as head of the Ruling family, all matters which are his sole concern as the Defender of Faith and all matters connected with Titles, Honours and Palace Ceremonies shall be deemed to fall within the Maharajah's personal Prerogative and in such matters die Maharajah shall exercise full discretion subject to the provisions of the Constitution and Laws of the State. 'The Maharajah's Prerogative shall not, however, be taken to comprise any matter wherein the legitimate interests of the State Administration or a civil right sustainable in a court of law is involved.' It will be within the prerogative of the Maharajah to remit punishment and pardon offenders subject to the provisions of the Manipur State Courts Act provided that this prerogative shall not prejudice the right of any individual to compensation.'
9. (b) The Maharajah means His Highness the Maharajah of Manipur tile Constitutional Head of the State.
10. Council of Ministers: (a) Subject to the provisions of this Act and subject also to the provisions of the Rules for the Administration of the Manipur State the Executive Authority of the State is delegated to and shall vest in the Council of Ministers.
(b) Where under this Act or the Rules for the Administration of the State, it is requisite that the approval of the Maharajah shall be taken to any measure, the Chief Minister shall seek the approval of the Maharajah in person or in writing and shall obtain the Maharajah's orders thereon. Should in any case the Maharajah's approval be withheld, the Maharajah shall be pleased to inform the Chief Minister in person or in writing and to communicate his reasons for withholding such approval in writing to the Council.
17. There shall be constituted a State Assembly. The Assembly shall be elected for a period of three years and shall comprise Representatives freely elected by the people on an adult franchise and on the principle of Joint Electorate.......
11. Under this section even the depressed classes and the poorest hill men were allowed to exercise their right of franchise along with the members of the highest classes, and no separate seats were allotted for the backward classes for which only members of those classes might be eligible for voting.
27. When the Council or the Assembly consider that a law should be enacted, the Council shall cause a bill to be drafted, which shall be laid' before the Assembly and a reasonable time shall be given for consideration thereof. The Council shall then cause to be made such alterations or amendments as may be deemed necessary in the light of the advice tendered by the Assembly and the Chief Minister shall submit the Bill in its final form tor the assent of the Maharajah.
30, Where the Assent of the Maharaja to any Bill is withheld, the Council may cause the selfsame Bill to be introduced in the next session of the Assembly and if passed without amendment by a 75 per cent, majority of the Assembly, the Bill shall be certified over the Seal of the Council and shall become Law.
A perusal of these sections makes it quite clear that the Manipur State Constitution Act, 1947 is sufficiently democratic and the power under this Act rests with the people, as in cases where 75 per cent, majority of the Assembly agreed to pass a Bill the Maharajah's assent was waived. Thus the Maharajah was given three powers under this Constitution, viz., (1) Prerogatives on personal matters, (2) approval or disapproval of executive order, and (3) giving assent to Legislative matters.
12. The Manipur State merged with the Dominion of India on 15-10-1949 and Article 1 of Manipur Merger Agreement given in Appendix XXXII of the White Paper on Indian States shows that by this agreement under Article 1 His Highness the Maharajah of Manipur coded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the Administration of the State to the Dominion Government on the fifteenth day of October 1949 (hereinafter referred to as 'the said day').
13. As from the said day the Dominion Government was to be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think lit.
14. This agreement thus makes it clear that His Highness the Maharajah ceded to the Dominion Government authority, jurisdiction and powers in relation to the governance of the Manipur State enjoyed by him on 15-10-1949. The accordance with the Manipur State Constitution Act 1947 the Dominion Government is competent to exercise the powers of governance, authority and jurisdiction in such manner and through such agency as it might think fit, The question which now arises is whether the Dominion Government ever thought it proper to take a retrogressive step to annul the Manipur State Constitution Act, 1947. The Central Government passed the Manipur Administration Order, 1949 'Under Sections 3 and 4 of the Extra Provincial jurisdiction Act, 1947 (Act XLVII of 1947) and of all other powers enabling it in this behalf on 15-10-1949 and para. 5 of this order clearly lays down that all laws in force in Manipur or any part thereof immediately before the commencement of this Order shall continue in force until repealed or amended by a competent legislature or authority.
Provided that all powers exercisable under the said laws by His Highness the Maharajah or the Government of the State shall be exercisable by the Chief Commissioner, who shall be appointed by the Central Government at the Head of the administration of the Manipur State. Under paragraph 7, however, it has been laid down that as from 15-10-1949, 'the Ministers' in Manipur State shall cease to function and 'the Legislature' of the State shall stand 'dissolved'. It has been contended by learned advocate for the petitioners that paragraph 7 of She Manipur Administration Order, 1949, is ultra vires and void as the Manipur State Constitution Act, 1947, was not repealed by the Central Government and so this paragraph which is inconsistent with para. 5 and all other provisions of the Manipur State Constitution Act, 1947, cannot be deemed to be operative.
15. The Central Government got all the powers which were exercised by the Maharajah at the time of merger by the agreement of the merger and the Chief Commissioner was to exercise those powers later on under the Manipur Administration Order, 1949, but the rights of the people enjoyed under the Manipur State Constitution Act, 1947, were never suppressed nor do they appear to have been, at any time attempted to be suppressed as the Manipur State Constitution Act, 1947, was never repealed. Its provisions, therefore, so far as they are not inconsistent with the provisions of the Indian Constitution will continue to remain in force under Article 372 of the Constitution of India. The Manipur State Administration Order, 1949, was passed in exercise of the powers conferred by Sections 3 and 4 of the Extra Provincial Jurisdiction Act, 1947 and these sections lay down that it shall be lawful for the Central Government to exercise extra-provincial jurisdiction in such manner as it thinks fit and any such jurisdiction may be delegated to any officer or authority in such manner and to such extent as the Central Government may think fit. Under Section 4 any order under Sub-section (1) may provide for determining the law of procedure to be observed, whether by applying with or without modifications all or any of the provisions of any enactment in force in any province or otherwise. Under the Manipur Administration Order, 1949, the Manipur State Constitu tion Act, 1947, had been kept in tact under para. 5 but under Clause (7) the existing Legislature was dissolved and the Ministers then functioning ceased to function. The abolition of the Legislative Assembly and the Council of Ministers is not a mere matter of procedure and as no action was taken by the President for a period of three years nor by the Parliament under Article 239 and Article 245(1) of the Constitution of India, the Manipur State Constitution Act 1947 cannot be deemed to have been repealed, Even if para. 7 of the Manipur Administration Order, 1949 be deemed to mean that the Legislative Assembly and the Council of Ministers were temporarily disbanded, requests for their restoration would not be deemed to be illegal or tend to create disorder. The argument that the restoration of the Legislative Assembly is inter-linked with the report of the States Re-organisation Commission, has not been established to have any force as no document has been produced which might show that this matter has been referred to the Commission.
16. It has been argued that even in a case of conquest, the ancient laws of the conquered, remain in force so long as the conqueror does not change or alter them, vide Halsbury's Laws of England 1933 edition, volume 11, page 239 para. 456, 'in conquered or ceded countries which at the time of their acquisition, had already laws of their own, the Crown has power to alter and change those laws, but until this is actually done the ancient laws of the countries remain in force;' vide also 'Edgar Sammut v. Strickland'. AIR 1939 PC 39 (H); 'Freeman v. Fairlie', 1 Moo Ind App 305 (I) and 'Campbell v. Hall (1774) 20 State Tr 239 at p. 325 (J); as well as 'Forbes v. Coch-vane', (1824) 2 B and C 448 (K); 'Anand Bal-krishna Behare v. Police Lashkar'. 1949 Madh BLR 160 CL) and 'Barm v. ParsTam' AIR 1954 Madh B 78 (M).
17. Article 51 of the Constitution of India lays'-, down a directive principle of State policy as follows:
51. The State shall endeavour to
(a) promote international peace and security;
(b) maintain just and honourable relation?' between nations;
(c) foster respect for international law and trenty obligations in dealings of organised peoples with one another; and
(d) encouragement of international disputes by arbitration.
18. The Central Government have not repealed f the Manipur State Constitution Act, 1947, and if it was intended to remove the Ministers who were working in October 1949 from the- Legislature which was functioning at that time, para. 7 of the Mam-pur Administration Order would not be void, but it would only mean that the personnel then functioning would cease to function. I think para, 7 cannot be interpreted to mean that the Manipur State Constitution Act, 1947 or any particular section thereof was ever sought to be repealed by this paragraph, and so it could not properly be urged on the basis of this paragraph that the requests for electing fresh Legislature and for appointment of fresh Ministers under the Manipur State Constitution Act, 1947 which has not been repealed uptill now, were in any way illegal or against the maintenance of public' peace. Even if meetings are held and people peacefully request the Government for enforcing the provisions of Manipur State Constitution Act, 1047, such meetings would not be against the spirit of the Constitution, or even against the provisions of Section 144, Cr.PC as they would not tend to disturb public tranquillity in any manner. In the present case as has already been pointed out there were only 7 persons present-in the meeting and the number of persons going on the road does not appear to be appreciable, and so it cannot be said that there was any apprehension of the breach of peace or danger to public tranquillity on this occasion.
19. If the people of Manipur in spite of making repeated requests could not get any satisfactory answer they could, in exercise of their fundamental right conferred under Article 19 of the Constitution of India, give expression to their ideas in peaceful assemblies where they could collect together without arms and so an order under Section 144, Criminal P. C, restricting the fundamental right under els. (a) and (b) of Article 19(1) of the Constitution of India was not justified in this case.
20. It has been contended by the learned Government Advocate that no question of infringement of fundamental rights arises in this case, for the j. petitioners are being prosecuted under specific Sections 143, 145 and 188, IPC and as they can agitate during the course of their trial that order Under Section 144, Criminal P. C, was not justified and their assembly was not unlawful, the present petition should be dismissed, and reliance has been placed on 'Mool Chand v. Emperor' AIR 1948 All 281 (N) and 'Prabha Shnrma v. State of Madhya Bharat', (S) AIR 1955 Madh B 20 (O).
21. The Indian Constitution has taken care to enumerate and classify the rights of individual in specific terms and also to delimit the restriction which may for reasons specifically stated be imposed by State Authority. They are broadly classified under the following 7 heads:
1. Right to equality (Articles 14-18)
2. Right to freedom (Articles 19-22)
3. Right against exploitation (Articles 23-24)
4. Right to freedom of religion (Articles 25-28)
5. Cultural and educational rights (Articles 29 and 30)
6. Right to property (Article 31)
7. Right to constitutional remedy (Articles 32-35).
22. Article 246 of the Constitution of India j which defines the scope of the legislative powers I of the Parliament and the State Legislatures is itself subject to the provisions contained in Part III (Fundamental Rights). Article 13 of the Constitution runs as follows:
13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
23. This provision makes it clear that if any order Under Section 144, Criminal P. C, be made inconsistent with this part, it shall be void.
24. Article 19 of the Constitution of India runs as follows:
19. (1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without anus;
(c) to form associations and unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to acquire, hold and dispose of property; and
(g) to practise any profession, or to carry on any occupation, trade or business.
2. Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law in to 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 undermines the security of, or tends to overthrow, the State.
3. Nothing in Sub-clause (b) of the said clause shall effect the operation of any existing law in so far as it imposes, or prevent the State from (naking any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
25. A careful reading of Articles 13 and 19 of the Constitution of India makes it clear that Fundamental Rights granted under (a) and (b) of Sub-clause (1) of Article 19 cannot be circumvented or restricted except to the extent provided in sub-els, (2) and (3) of Article 19, These sub-clauses make it clear that the fundamental rights can be restricted only by an existing law. Article 366(10) of the Constitution of India defines existing law as follows:
366. (10) 'existing law' means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such law, Ordinance, order, bye-law, rule or regulation;
Restriction on the fundamental rights of the present petitioners has been made on the analogy of Section 144, Criminal P. C. Section 1, Sub-section (2) of the Criminal Procedure Code clearly lays down that it extends to the whole of India except the State of Kashmir and Jammu and Manipur, which means that the Criminal Procedure Code is not the 'existing law' in Manipur State as contemplated in sub-cls. (2) and (3) of Article 19 of the Constitution of India The Merged States (Laws) Act, 1949 which came into force on 1-1-1950 enforced the Code of Criminal Procedure (Act V of 189S) in all the Part C States vide schedule appended to this Act (S. 3 of the Act). Part C States (Laws) Act 1950 came into force on 16-4-1950 and it was laid down in Section 3 that the Acts and the Ordinances specified in the schedule to the Merged States (Laws) Act;) 1949 were extended to the States of 'Tripura' and 'Vindhya Pradesh', but so far as the Part C State of Manipur which came in to existence on 23-1-1950, the Acts and Ordinances referred in Sub-section (1) of Section (3), other than those specified in schedule were extended. In this schedule a number of Acts including the Code of Criminal Procedure, Code of Civil Procedure, the Transfer of Property Act, the Legal Practitioners Act, the Suits Valuation Act, the Indian Succession Act and others were not extended to Manipur. It is thus clear that the. Code of Criminal Procedure cannot be said to be the 'existing law' of Manipur State within the meaning of sub-cls. 2 and 3 of Article 19 of the Constitution of India, and so no provision of this Code can curtail the fundamental rights of the citizens within the Manipur State.
26. It has been contended that even though the Code of Criminal Procedure is not specifically enforced it has always been valid in spirit in this State as was laid down in Sagolsem Indramani Singh v. State of Manipur', (S) AIR 1955 Manipur 9 (P). Reliance has also been placed on the judgment of the Hon'able Supreme Court in 'Pangam bam Kalenjoy Singh v. State of Manipur', Criminal Appeal No. 72 of 1951 (Q), in which an observation to the following effect has been made :
Though the Code of Criminal Procedure has not been applied to Manipur, the trial has been substantially in accordance with the procedure laid down by that Code. But an there is no appellate Tribunal in that State for a case of this kind, we have heard the appeal as Court of ordinary appeal and have gone into evidence.
27. The procedure in civil and criminal Courts in Manipur is regulated by the Manipur State Courts Act 1947 as amended by the Parliament in 1950, but this Act does not give detailed provisions regarding procedure, generally both the parties agree to follow the procedure laid down in the Code of Criminal Procedure in Criminal Cases. But where the provisions of the Code of Criminal Procedure are at variance with the provisions of the Manipur State Courts Act, the latter prevails. In the two cases on which reliance has Deen placed by the prosecution there was no question of curtailment of citizen's liberty under any penal provision of the Code of Criminal Procedure and as the parties acquiesced to the detailed procedure laid down in Act 5 of 1898, that procedure was followed and where one of the parties did not comply with a specific provision regarding sanction, it was held that that provision was binding on that party. These cases are not and can never be any authority for the proposition that the Code of Criminal Procedure is the 'existing law' of Manipur and the liberty of all citizens can be curtailed under any of its penal provisions like Section 144, Cr, P. C.
28. The District Magistrate of Manipur realised this difficulty and so in the order dated 17-12-1954 the words 'order on the analogy' of Section 144, Cr.PC were used. A perusal of Sub-clsuse (2) and (3) of Article 19 of the Constitution makes it clear that such analogous order can never be deemed to be the 'existing law' either under those clauses or under Article 366(10) of the Constitution of India and so such order must be deemed to be void under Article 13(1) of the Constitution of India.
29. The Writ of Habeas Corpus is a prerogative process for securing liberty of the subject by affording an effective means of immediate release from unlawful detention whether in prison or in private custody. The full name of writ is 'Habeas corpus ad subjiciendum' which means that you have the body to submit or answer. Under Section 491, Cr.PC it was laid down in 'C. P. Matthen v. District Magistrate Trivandrum' AIR 1939 PC 213 (R), that the High Court could not issue a common law writ of habeas corpus in any cases covered by Section 491, but by the coming into force of the Indian Constitution a vital difference has taken place in regard to this matter and has rendered the above decision of the Privy Council almost of only academic interest now. Under both the Articles 226 and 32 powers have been conferred to issue writs in the nature of habeas corpus untrammelled by any statutory provision and a writ in the nature of common law writ of habeas corpus may be issued now by the High Courts, vide Chitaley's Constitution of India, Volume II, page 1659. In view of the wider powers of the High Courts under Article 226, the pro-, visions of Section 491, Cr.PC can be treated as practically superseded by Article 226 of the Constitution of India, vide In re Kunjan Nadar', (S) AIR 1955 Trav-C 74 (S).
30. Whether the detention is lawful or not is a matter depending upon provisions of law that may be applicable to a particular case as construed by the Court in each case. It may be mentioned in. this connection that Article 21 of the Constitution guarantees to every person as a fundamental right that he shall not be deprived of his personal liberty except according to the procedure established by law. And under Article 22 of the Constitution further safeguards are guaranteed as fundamental rights to all persons in the matter of their personal liberty. Any law passed either by the Parliament or by any of the State Legislature which is incon-sistent with these provisions, will be ultra vires. The Court to which an application for habeas- corpus is made has the power to examine the validity of any law under which a person is detained, In die matter of Omritolall Dey', 1 Cal 78 (T), in which a person was arrested in execution of decree under the warrant of Presidency Small Cause Court in Calcutta. At the time of the arrest,, the person was entitled to privilege from arrest. He applied for habeas corpus. It was contended that the High Court could not go behind the Commitment of the Presidency Small Cause Court. This contention was rejected. The writ of habeas corpus is a writ of right against which no privilege of person and place can avail, 'vide Chitaley's Constitution of India, Volume 11 page 1660.
31. The contention that the present petition. 'K should be dismissed because the present petitioners can raise all the points urged in this Court, before the Additional District Magistrate, has thus no force as the order Under Section 144, Cr.PC in so far as it was intended to prohibit a meeting of 7 persons only at a stage when the agitation is said to have practically fizzled out, and when there could be absolutely no danger to public tranquillitjr by such meeting, is, ultra vires and not legally enforceable.
32. The provisions under Article 13 of the Constitution in fact provide for 'judicial review' with a view to bring all legislations in India in conformity with the Constitution as was observed by Hon'ble Shri Patanjali Shastry C. J,, in 'The State of Madras v. V. G. Row' : 1952CriLJ966 :
We think it right to point out, what is sometimes overlooked that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted 'due process' clause in the Fifth and Fourteenth Amendments. If, then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as to which this Court has been assigned the role of a sentinel on the 'qui vive'. While the Court naturally attaches Sreat weight to the legislative judgment, it cannot esert its own duty to determine finally the constitutionality of an impugned statute. We havew-ventured on these obvious remarks because at appears to have been suggested in some quarters that the Courts in the new set up are out to seek clashes with the legislatures in the country.
33. A number of minor points were also raised on behalf of the petitioners and the order Under Section 144, Cr.PC was sought to be challenged on the ground that it was vague and it was not duly promulgated and that it was malicious as the motive not assuming authority was really to restrict freedom of a speech and not to secure public tranquility. There is no doubt that an order Under Section 144, Cr.PC is a judicial order and not merely administrative order vide 'D. V. Belvi v. Emperor' AIR 1931 Bom 325 (V) and 'Motilal Ganga-'dhar v. Emperor' AIR 1931 Bom 513 (W).
But in this case the order passed by the learned District Magistrate is quite specific and the fact that the boundaries in which the order was to remain in force were not given, will not make the order invalid when it is otherwise definite vide 'Sorab Shavaksha Batliwala v. Emperor' AIR 1935 Bom 33 (X). The rulings reported in 'Gulam Mohammad v. Bhuban Mohan Moitra', 2 Cal WN 422 (Y); 'Vasant B. Kale v. Emperor' AIR 1934 Bom 375 (Z); 'Ashutosh Roy v. Haris Chandra' AIR 1925 Cal 625 (Zl); 'Satish Chandra Roy v. Emperor', 11 Cal WN 79 (Z2) and 'Sat Narain v. Emperor' AIR 1939 All 746 (Z3), in which it is laid down that the area within which the order Under Section 144, Cr.PC should remain operative must be limited and definite to a particular place, cannot go to establish that the order in question in this case is invalid because in the later rulings it has been held that such a place can be a entire district, vide 'Abdul Karim v. Emperor' AIR 1937 Lah 80 (Z4), in which it was held that the mere fired that the order related to such a large district of Lahore would not make the order illegal vide also 'Abu ilusain v. Emperor' AIR 1940 Cal 358 (25).
33a. The argument that the order in question (Under Section 144, Cr.PC) could not be issued to the general public, also does not appear to be of any torce. It is settled law that order Under Section 144(3), Cr.PC cannot be issued to die general public except when frequenting or visiting particular places vide AIR 1939 All 746 (Z3) and 'Emperor v. Turab Khan' AIR 1942 Oudh 39 (Z6), but the particular place meant in the order in question has been sufficiently specified. The mere fact that the area is sufficiently large will not be of any material importance when in an earlier case referred to above orders covering the entire district of Lahore have been held to be perfectly legal.
34 It has been argued that the order Under Section 144, Cr.PC in this case was not duly promulgated and so there can be no conviction Under Section 156, IPC for violating such order, vide 'Satish Chandra Mukhuti v. Lokendra Lai Pal', 39 Cal WN 1053 (Z7), but I think the order under Section 144, Cr.PC in question cannot be deemed to be illegal when the present petitioners had full knowledge of it and an application was presented on their behalf for permission to hold a meeting. The fact that the order Under Section 144, Cr.PC was not affixed in public places will also not be of material consequence for the same reason vide 'In the matter of Madan Kishoro' AIR 1940 Pat 446 (Z8).
35. Publication of the order Under Section 144, Cr.PC by the Hon'ble Chief Commissioner of Manipur in the Manipur Gazette dated 15-2-1955 appears to be in conformity with the provisions of Section 144, Clause (6), Cr.PC as by means of this notification the State Government directed that the order Under Section 144, Cr.PC issued by the District Magistrate, Manipur would continue to remain A} force for the next 3 months. The mere fact that the order had to be extended for about 5 months or more will be of no serious consequence if in the opinion of the State Government its continuance was .necessary in the public interest.
36. It thus becomes clear that the order Under Section 144, Cr.PC issued by the District Magistrate, Manipur cannot be deemed to be binding in so far as the fundamental rights of the petitioners were sought to be curtailed thereby when there was absolutely no likelihuud of breach of peace or any danger to public tranquillity, if the .petitioners were allowed to exercise their rights. The District Magistrate, Manipur, could not be deemed to be acting under the provisions of the Code of Criminal Procedure as the latter enactment Has not been made applicable to this State. As such tills order in question involves a violation of the de facto doctrine, vide 'Pulin Behari v. King Emperor', 16 Cal WN 1105 at p. 1131 (Z9).
37. 1 have already shown above that the petitioners were exercising their right of speech and assemblage without arms in a peaceful manner in order to vindicate their rights for enforcement of public rights adumbrated in the Manipur State Constitution Act, 1947, and so the assembly of 7 persons could not be deemed to be an unlawful assembly within the meaning of Section 141, IPC and the present petitioners could not legally be deemed to be members of any unlawful assembly. An assembly to be unlawful must be of 5 or more persons if the common object of the persons composing of that assembly is
First: To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or
Second : To resist the execution of any law, or of any legal process, or
Third : To commit any mischief or criminal trespass, or other offence, or
Fourth : By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right, or
Fifth : By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
38. The present petitioners numbering seven were trying to get the provisions of law (Manipur State Constitution Act 1947) acted upon and they were not using any criminal force and so their assembly could not possibly be deemed to be an unlawful assembly; and their rights to freedom of speech and rights of assemblage could not legally be curtailed as was done in this case. As the order Under Section 144, Cr.PC issued in this case was not a legal and valid order no prosecution Under Section 188, IPC could legally ensue for disobedience of this order.
39. The result is that the present petition must be allowed and the petitioners are set at liberty and the commitment order Under Sections 143, 145 and 188, IPC against them is quashed. As the petitioners raised a number of pleas which were found to be without force, it is ordered that the parties will bear their own costs.