John Beaumont, Kt., C.J.
1. These are three references made by the Sessions Judge of Ahmedabad. The accused were convicted by the Additional City Magistrate, F.C., Ahmedabad, under Section 68(c) of the Bombay District Police Act, 1890, the charges against them being that they had led a procession in the streets of Ahmedabad without taking out a pass as required by Rule 1 made under Section 48(1)(a) of the Bombay District Police Act. The learned Sessions Judge was of opinion that the rules made by the District Superintendent of Police for breach of which the accused had been convicted were ultra vires and not justified by the terms of Section 48(1)(a).
2. Section 48(1)(a) provides that the District Superintendent or an Assistant or Deputy Superintendent may make rules for and direct the conduct of and behaviour or action of persons constituting assemblies and processions and moving crowds or assemblages on or along the streets, and prescribe, in the case of processions, the routes by which, the order in which, and the times at which the same may pass. Under that section the District Superintendent of Police made certain rules which were published in the Bombay Government Gazette of July 19, 1934. They are expressed to be rules for the conduct, behaviour and action of persons desirous of conducting processions within the municipal limits of the City of Ahmedabad and five miles beyond. The first rule for the breach of which the accused were convicted says:
No procession shall pass on or along the streets, within the areas specified above ' unless a pass has been obtained from the Sub-Divisional Police Officer, having jurisdiction, or the District Superintendent of Police, and upon the conditions mentioned in the pass; provided that no pass will be required in the case of bona fide religious or funeral or marriage processions.
Then further rules provide how that application for a pass is to be made and what particulars it is to contain. Then Rule 5 provides that the applicant or his representative shall accompany the procession with the pass granted to him and shall produce the same for inspection by a police-officer whenever required ; and Rule 6 provides that subject to the provisions of the foregoing rules and subject to the imposition of such conditions as may be deemed necessary, a pass shall be granted, unless the officer concerned is of opinion that the procession proposed to be organised or taken out should be prohibited in which case he shall forthwith refer the application together with his report thereon, for the orders of the City Magistrate, or the Additional City Magistrate or the Additional District Magistrate. So that if a pass is applied for, it must be granted by the police or the application referred to higher authority. The police themselves have no power under the rules to refuse to grant a pass.
3. The grounds on which the learned Sessions Judge thinks that the rule is ultra vires appear to be two. He thinks, first, that the rule deals, not with an existing procession, but with a person intending to form a procession, and, secondly, that the rule involves in effect the prohibition of processions which he considers that the section does not authorise. With regard to the first objection, it is in my opinion clear that the rules must be made before the processions are contemplated, since it is obvious that after the assembly or procession has actually been constituted the police cannot proceed to make rules. They must make the rules with reference to possible future events. But I agree that the rules as made can only regulate the conduct of persons as members of assemblies and processions. But Rule 1, with which we are concerned in this case, does deal only with the conduct of persons constituting processions. Such persons cannot go in procession along a street within the municipal limits of Ahmedabad without a pass. No doubt the rule involves that a person requiring a. pass shall apply for it before the procession actually starts; but the actual prohibition under the rule is against some action by a person who is at the time a member of an assembly or procession. Therefore, in my opinion, there is no objection to the rule on the ground that it deals with those who have contemplated a procession and not with those who have formed a procession. The other objection is that the rule prohibits a procession altogether, but it is plain to my mind that it does nothing of the sort. There is no prohibition against the forming of an assembly and the starting of that assembly into motion which would constitute a procession, provided that the procession does not proceed along streets. There must be many open places in the limits of the Ahmedabad Municipality and five miles beyond in which processions can be taken without a pass, but if they are to be taken along a street, where the police necessarily have to control traffic, a pass has to be produced. As i have already pointed out the police authorities have no power to refuse to grant a pass. All that they can do if it appears to them that the procession ought to be prohibited, is to refer the matter forthwith to a Magistrate and the Magistrate will then deal with the matter by an order. In my opinion neither of the objections which the learned Sessions judge felt to this rule is sound in law. We must, therefore, reject the references.
N.J. Wadia, J.
4. I agree.