1. The petitioner asks this Court to hold as ultra vires the proclamation of the District Magistrate of Ratnagiri, prohibiting the dissemination in the said District of pictures or symbols of Bal Gangadhar Tilak. The main ground of objection to the legal validity of the proclamation is that in terms it prohibits the circulation of the book in question throughout the District of Ratnagiri and -not in any particular town or village, or neighbourhood thereof. It is urged that s 42 of the Bombay District Police Act (No. IV of 1890) gives no' power to the District Magistrate to issue a proclamation so as to make it apply to the District in general.
2. The section is not clearly worded but I think that the preliminary conditions essential under its provisions for the exercise of the jurisdiction conferred by it are these : first, the jurisdiction is conferred on the Magistrate of the District or in his absence and subject to his own order the Magistrate of the First Class; secondly, these must have jurisdiction in the town or village where the jurisdiction is intended to operate; thirdly, they must be present in such town or village or in the neighbourhood thereof at the time the jurisdiction under the section is set in motion. There is no evidence in the present case that at the time the proclamation complained of as illegal was issued the District Magistrate was either in the place or the neighbourhood of the place where the petitioner is alleged to have disobeyed the terms of that proclamation. The proclamation was issued by the District Magistrate from Dapoli where he then was.
3. The section we are construing is of a penal character and must be strictly construed as it affects the liberty of the subject. The intention of the Legislature appears to have been that such a proclamation as is contemplated by the section should be issued in such a manner as to give full publicity to its terms on the responsibility of the District Magistrate or Magistrate of the First Class, who must be personally in the place to satisfy himself that there is necessity for the proclamation.
4. The rule must be made absolute by quashing the conviction and sentence and directing the fine, if paid, to be refunded.
5. The only question is, under Section 68 of the Bombay District Police Act, 1890, whether the District Magistrate's order, which the accused is found to have disobeyed, was an order lawfully issued under Section 42 of the Act. That order, which was published only at the Taluka head-quarter town, prohibited the dissemination of pictures or symbols of, among other persons, Bal Gangadhar Tilak'. the order' specified no period of time and no geographical area over which it was to operate. The accused is found to have sold almanacs containing pictures of Tilak, not in the headquarter town, but in his own village, distant some twelve or thirteen miles away.
6. Now Section 42 of the Act runs as follows :-
The Magistrate of the District, or in his absence and subject to his order the Magistrate of the first class having jurisdiction in any Iowa or village and present therein or in the neighbourhood thereof, may, whenever and for such time as it shall appear necessary, by a notification publicly promulgated or addressed to individuals, prohibit in such town or village or the vicinity thereof the carrying of arms, cudgels or other weapons, the carrying, collection and preparation of stones or other missiles or instruments or means of casting or impelling missiles, the exhibition of persons or of corpses or figures thereof, the public utterance of cries, singing of songs, playing of music, delivery of harangues and use of gestures or mimetic representations and the preparation, exhibition or dissemination of pictures, symbols, placards or of any other object or thing, which may be of a nature to outrage morality or decency or, in the opinion of such Magistrate, may probably inflame religious animosity or hostility between different classes or incite to the commission of an offence, to a disturbance of the public peace or to resistance to or contempt of the law, or of the lawful authority.
7. As to the argument that sale is not a form of dissemination within the meaning of the section, I am unable to accept it. As to the objection that the District Magistrate's order is bad because it prescribes no period of time for its operation, I refrain from expressing any opinion, since in my judgment the order is, for another reason, not a lawful order. That reason is that I cannot find in the section any warrant for the view that the District Magistrate is empowered, by an order promulgated only in the Taluka headquarters and containing no reference to any area, to make punishable acts done in a village twelve miles away.
8. The learned Government Pleader has sought to defend the order on the ground that Section 42 should be read as conferring on the Magistrate of the District the same powers in general orders in respect of the whole District as are conferred on a Magistrate of the first class in respect of any town or village within his jurisdiction. It appears to me, however, that the words of the section are quite incapable .of any such interpretation. The section is not perhaps very artistically . drafted, and it is arguable that the words 'having jurisdiction in any town or village' refer only to the Magistrate of the first class and not to the Magistrate of the District; but that argument seems to me to be negatived by the following words giving power to 'prohibit in such town or village.' These last words are, I think, manifestly referable equally to the Magistrate of the first class and to the Magistrate of the district; if so, then the earlier words ' having jurisdiction in any town or village' must also refer to the Magistrate of the District. To hold that the Magistrate of the District, may, by a* general order, prohibit acts throughout the District would, I think, be simply to enact a new section in substitution for Section 42. For Section 42 plainly limits the prohibiting powers of the Magistrate, whether it be the Magistrate of the District or the Magistrate of the first class : in either case all that he: may do is to ' prohibit in such town or village ', that is to say, in any town or village which is within his jurisdiction, and in which, or the neighbourhood, of which, he is present. It is not suggested that the District Magistrate was present in the accused's village when this order was issued, nor can a distance of twelve miles be regarded as either 'neighbourhood' or 'vicinity', for these words were presumably intended to include only suburbs or immediate surroundings, and, in any case, there was no prohibition in any town or village, whether the accused's village or another.
9. Penal sections must be construed strictly, and I think the present order was wholly outside the scope of Section 42. I agree therefore that the rule must be made absolute.