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Emperor Vs. Abdul Hamid Rajabali - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 256 of 1917
Judge
Reported in(1918)20BOMLR114
AppellantEmperor
RespondentAbdul Hamid Rajabali
Excerpt:
.....order relates to the hindus and musalmans of the halyal town as regards persons and to the ensuing laxmi worship and kartik festivals as regards the occasion. it would, no doubt, have been better if the operative part of the order had been confined to hindus and musalmans of the town of halyal or such other classes of persons as the district magistrate had in view, and to the occasion of the ensuing laxmi worship and kartik festivals. but i would suggest for the consideration of the district magistrate that out of regard for the courts before whom very acute and ingenious criticism is likely to be placed, it would be better if in future, orders were made more specific as regards the persons affected and the occasions to which the orders are to apply. from what i have said it will be..........kanara under section 44 of the bombay district police act. the order had reference to the ensuing laxmi worship and kartik festivals and it provided as follows :-'no one shall obstruct religious or ceremonial processions passing with music in front of any masjid within the municipal limits of the halyal town.' the accused did in fact obstruct a hindu procession passing a mosque with music. it has, therefore, been found that they disobeyed a lawful order and therefore are guilty of an offence under section 188, and the sessions judge in appeal upheld these convictions, the applicants have come to us in revision.2. on reading the judgments of the lower courts i think that they found with unmistakable clearness that there was an obstruction of the procession and therefore disobedience of.....
Judgment:

Heaton, J.

1. In this case certain persons were convicted under Section 188 of the Indian Penal Code for disobeying an order promulgated by the District Magistrate of Kanara under Section 44 of the Bombay District Police Act. The order had reference to the ensuing Laxmi worship and Kartik festivals and it provided as follows :-'No one shall obstruct religious or ceremonial processions passing with music in front of any Masjid within the municipal limits of the Halyal town.' The accused did in fact obstruct a Hindu procession passing a mosque with music. It has, therefore, been found that they disobeyed a lawful order and therefore are guilty of an offence under Section 188, and the Sessions Judge in appeal upheld these convictions, The applicants have come to us in revision.

2. On reading the judgments of the lower Courts I think that they found with unmistakable clearness that there was an obstruction of the procession and therefore disobedience of the order. It has been contended that even on the facts found by the Magistrate and the Judge there was not an obstruction within the meaning of the section. That argument, however, does not appeal to me, and the only point of genuine importance in the case, I think, is a different matter altogether. It is whether the order made by the District Magistrate was or was not a lawful order. It is a very carefully drafted order. It sets out in a series of paragraphs the occurrences which had led to the order, its purpose and the particular occasion as to which it was to apply. But what is called the operative part of the order is as I have already quoted and it is this operative part of the order which has been subjected to so much criticism. The first criticism is this: the order says:-'No one shall obstruct' instead of providing as Section 44 requires that the order shall relate to certain persons or parties, it not being contemplated by Section 44, it is argued, that on order should be issued in such general terms. The second criticism is that there is no time limit to the order, and that whereas Section 44 only admits of an order relating to an actual or intended occurrence, the order in fact (that is the operative portion taken by itself) is purely general and does not mention any actual or intended occurrence. This criticism is perfectly legitimate, but it has failed to persuade mo that the order is not a valid order, because when I take it as a whole and read the whole of it, I do not feel any doubt whatever that the order relates to the Hindus and Musalmans of the Halyal town as regards persons and to the ensuing Laxmi worship and Kartik festivals as regards the occasion. I do not think that anybody wan misled, or was likely to be misled, by the order. It would, no doubt, have been better if the operative part of the order had been confined to Hindus and Musalmans of the town of Halyal or such other classes of persons as the District Magistrate had in view, and to the occasion of the ensuing Laxmi worship and Kartik festivals. So framed the order would have been more correct in form. Yet it seems to me that the error in form is so purely of a technical character as not to render the order an invalid ordor. In short, I see nothing substantially wrong with the order. But I would suggest for the consideration of the District Magistrate that out of regard for the Courts before whom very acute and ingenious criticism is likely to be placed, it would be better if in future, orders were made more specific as regards the persons affected and the occasions to which the orders are to apply. From what I have said it will be perfectly clear that the order is now long since spent, that it has not and cannot have any operative effect whatever now that the Laxmi worship and Kartik festivals contemplated are over.

3. For these reasons I think that the convictions are correct, and as the sentences have been served by those who were convicted, there is no need for us to concern ourselves with them.

4. I think the rule should be discharged.

Shah, J.

5. I agree.


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