1. The accused were convicted by the District Magistrate of East Khandesh under Section. 188 of the Indian Penal Code for disobedience of an order duly promulgated by the Sub-Divisional Magistrate, Erandol, under Section 144 of the Criminal Procedure Code. The only question raised on this petition is whether the order was a lawful order within the meaning of Section 144 of the Criminal Procedure Code. Two points are taken by Mr. Gupte on behalf of the petitioners. The first is that the order does not state the material facts of the case as required by Sub section (1) of the section; and, secondly, the order is too wide and beyond the powers conferred by Sub-section (3) of Section 144 of the Code....
2. Before a Magistrate can take action under this section he must be of the opinion that immediate prevention or speedy remedy is necessary, and when he has made up his mind that it is so, he must state the material facts in the order. It will be seen that no material facts are set out in the first part of the order. It appears from the judgment of the learned District Magistrate that the order was promulgated to prevent a breach of the peace and rioting, which the authorities apprehended on account of the sentences passed by the High Court in what is now known as the Sholapur case. That, we think, was a material fact which should have been stated in the order; and we think that this part of the order as it stands is vague and does not comply with the requirements of Section 144(1) of the Code.
3. The second point is a more substantial one. It is clear from the record that the order was promulgated under Sub-section (3) of Section 144 of the Criminal Procedure Code, and that the petitioners are not included in the persons specially named in the order, and the order would be applicable to them only as members of the public generally.
4. A careful perusal of the language of Section 144 of the Code shows that the power of a Magistrate under it is confined to the direction to a particular parson or persons to abstain from acts of a certain character, or to the public generally to abstain from similar acts 'when frequenting or visiting a particular place.' Sub-section (3) of the section is an exception to the general rule that the order shall be directed to a particular person. But the order can be directed to the public generally only 'when frequenting or visiting a particular place', such, for instance, as a market or a park or other place within a specified boundary. There is no power to direct the public generally simplicities. This, in our opinion, is the plain meaning of Section 144 of the Code. If an authority is necessary, reference may be made to Queen-Empress v. Lakhmidas Makandas ILR (1889) 14 Bom. 165 and Emperor v, Bhagubhai : (1914)16BOMLR684 .
5. The order in question prohibited the public generally and certain persons named therein from taking part in the procession within the whole of the municipal limits of Erandol and all public places within such limits. In our opinion, therefore, the order does not conform to the requirements of Section 144, Sub-section (3), of the Criminal Procedure Code, and was beyond the powers of the Sub-Divisional Magistrate, Erandol, under that section.
6. A similar point arose in In re D.V. Belvi : (1931)33BOMLR673 , and we agree with the view there taken as to the scope of Section 144(3) of the Code. In that case Mr. Justice Madgavkar observed as follows (p. 675):-
We are also of opinion that the order being addressed to the public generally must be limited under Section 144(5) to the public when frequenting or visiting a particular place. To argue that though no such particular place is specified, all the streets in the city and cantonment of Belgaum are implied, would appear be defeat the objects of the section, prohibiting, as it does, the performance of acts, which would otherwise be lawful.
6. I think that having regard to the terms of the section, it is only when a Magistrate is of opinion that the public generally are likely to frequent or visit a particular place, i. e., a definite or specified place, and trouble is apprehended, that any order under Sub section (3) can be made. As it stands, the effect of the order would be to prohibit all processions, even of an innocent character, e. g., a marriage or a religious procession being taken out at or in any public place in Erandol. The order is not directed to the public when frequenting or visiting a particular place, and in my opinion does not comply with the requirements of Section 144(3). The order, therefore, is illegal and beyond the powers conferred upon the Magistrate under the section.
7. Clause 2 of the order is somewhat curious, and I am not at all sure whether by the game order it was competent to the Sub-Divisional Magistrate, Erandol, to make the order contained therein. As far as I can see, it is only under Sub-section (4) of Section 144 that it is open to a Magistrate to rescind or alter any order made by him under the section, But this means that he can rescind or alter an order previously made under the section. It is doubtful if by one and the same order a Magistrate can provide for an exception to the order, of the kind set out in Clause 2 of the order. It is also doubtful whether under the section a Magistrate can delegate the power to a Police Sub-Inspector to permit the act prohibited by the order being done. In view of our conclusion in the case it is not necessary to pursue the point further.
8. In the result, we set aside the conviction and sentence, and direct the fine, if paid, to be refunded.
9. I agree.