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In Re: Ardeshir Phirozshaw Murzban - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 267 of 1939
Judge
Reported inAIR1940Bom42; (1939)41BOMLR1253
AppellantIn Re: Ardeshir Phirozshaw Murzban
Excerpt:
.....on the applicant on the same day. on august 9 he rescinded the order altogether. meanwhile, on august 7, the applicant applied to the high court for setting aside the order. at the hearing the crown supported the order, and raised two preliminary objections, first, that the order having been cancelled there remained no order to revise, and, secondly, that the application should have been made in the first instance to the magistrate:-;(1) that it was open to the high court, if it thought that an order ought never to have been made, to set it aside, although before that action could be taken the order might have ceased to be in operation;;(2) that inasmuch as a part of the order had been rescinded by the magistrate before there was time to make any application to him, the only court..........the order consisted of two parts, and i will refer to it in detail in a moment. on august 3, the learned magistrate cancelled the first part of the order. on august 7, this petition was presented, and on august 9 the learned magistrate cancelled the second part of the order.2. the learned advocate general has argued as preliminary paints, first, that this court cannot interfere in revision because there is no order to revise, the order having been cancelled. but that, in my opinion, is not a point of any substance. it frequently happens that this court is called upon to revise an order of conviction after the sentence passed by the convicting court has expired. it is open to this court, if it thinks that an order ought never to have been made, to set it aside, although before that.....
Judgment:

John Beaumont, Kt., C.J.

1. The facts which give rise to this revision application are that on August 1 last a riot took place in the City of Bombay, and the Chief Presidency Magistrate made an order under Section 144 of the Criminal Procedure Code directed against the present applicant, the editor, printer and publisher of the 'Jam-e-Jamshed' newspaper. The order consisted of two parts, and I will refer to it in detail in a moment. On August 3, the learned Magistrate cancelled the first part of the order. On August 7, this petition was presented, and on August 9 the learned Magistrate cancelled the second part of the order.

2. The learned Advocate General has argued as preliminary paints, first, that this Court cannot interfere in revision because there is no order to revise, the order having been cancelled. But that, in my opinion, is not a point of any substance. It frequently happens that this Court is called upon to revise an order of conviction after the sentence passed by the convicting Court has expired. It is open to this Court, if it thinks that an order ought never to have been made, to set it aside, although before that action can be taken the order may have ceased to be in operation.

3. As a second preliminary point it is argued that the applicant ought to have approached the Magistrate to set aside the order before approaching this Court in revision. The order was made ex parte, and under Sub-section (4) and (5) of Section 144 of the Criminal Procedure Code the applicant could have applied to the Magistrate to cancel the order. It may be that in some cases this Court would decline to interfere in revision if no application had been made to the Magistrate, but there was an obvious difficulty in this case seeing that a part of the order had been rescinded by the Magistrate before there was time to make any application to him. The only Court which was in a position to set the order aside altogether was this Court. In my opinion there is no substance in either of the preliminary objections.

4. Coming now to the merits, the order of August 1 recites that a riot had occurred in connection with a procession led by Sir Currimbhoy Ebrahim as a protest against the Urban Immoveable Property Tax and attacks were made by some of the processionists on the police. Then it goes on, 'Whereas there is sufficient ground for apprehending that unauthorised reports, news, comments and articles relating thereto are likely to lead to danger to human life and safety and to lead to further riots, affrays, and disturbances of public tranquillity,' and then the Chief Presidency Magistrate states :.after due and careful enquiry I am of opinion that there is sufficient ground for proceeding under Section 144 of the Criminal Procedure Code and that immediate-prevention and speedy remedy is desirable.

5. then the operative part of the order directs the applicant to abstain for a period of two months from the date of the service of the order from publishing any news, articles or comments relating to the following matters except such news, articles or comments as have been previously approved of by Mr. E. Iyer, Public Relations Officer to the Government of Bombay, and certified by him to be fit for such publications :

(a) The riot which occurred in the City of Bombay on August 1, 1939, or any other riots which have occurred or may occur within the said period of two months aforesaid;

(b) Any agitation or protests against the Urban Immoveable Property Tax.

6. The first objection taken to the order is that it does not state, as it must do under Section 144, the material facts of the case, and I see no answer to that objection. The only fact which is stated is that a riot had occurred in connection with a procession protesting against the Urban Immoveable Property Tax. The procession taken out as a protest against this particular tax was-lawful in its inception, and there is nothing to show why the procession became riotous, and in particular, no connection is shown between the riotous behavior of the procession and the applicant's newspaper. There is no allegation that the applicant's newspaper has ever made any unfair comments in relation to the tax in question, or that it has ever advocated violent or unlawful conduct. Evidence has been put in support of this application that the newspaper in question has been in circulation in Bombay for over one hundred years, that it is published in Gujarati and circulates mainly among Parsis; and that although it has been a severe critic of Government's prohibition policy and the Urban Immoveable Property Tax, it has never printed or published anything which can be treated as incitement to rioting or violence,. and that it has never been proceeded against by Government under any of the laws applicable to newspapers.

7. The learned Chief Presidency Magistrate under Section 441 of the Criminal Procedure Code has made a statement to us of his reasons for passing the order. He says that the order was passed at a time when there was rioting in the City, and no doubt it is difficult in such circumstances to frame an order in very exact terms, and I appreciate that a Magistrate may easily in such circumstances go further than he would have gone in calmer moments. But in that statement he gives absolutely no reason why he decided to proceed against this particular paper, rather than against other papers. All he says is that after due and careful enquiry about the newspapers that were likely to publish such objectionable matters of such a character as might lead' to riots he decided to issue his order. Nor does he attempt to answer the evidence which has been put in on behalf of the applicant, and which was available when he made his statement, or to show what connection there was between this paper and the riotous conduct of the assembly on August 1.

8. The order has been attacked on a good many other grounds. As we do not know the facts on which it was based we cannot say whether they justified the order, but I think that it would require very strong facts to justify such an order as was made in this case, particularly the second part of it which prohibits any protests against the property tax except such as an passed by the Public Relations Officer.

9. Prima facie, in a country which enjoys liberty of the press the applicant is entitled in his newspaper to publish any news, and make any comments, which he chooses, provided that he does not infringe any provision of law. A Magistrate acting under Section 144 may no doubt restrict that liberty. But he should only do so if the facts clearly make such restriction necessary in the public interest, and he should not impose any restriction which goes beyond the requirements of the case. To prevent any protest against the property tax for two months and to prevent publication of news relating, not only to the particular riot, but to any past riots and any future riots which may take place within the next two months are strong measures and; require cogent facts to justify them. Nor am I particularly impressed with the expediency of introducing into a judicial order of this kind the device of turning the Public Relations Officer into a sort of press censor. The Public Relations Officer seems to have been brought into existence by a resolution of the Government of Bombay passed in October, 1938, so that it is a new office, and the resolution defines his functions and duties in terms which I may perhaps paraphrase, as being to advertise the benevolent activities of Government. My only official experience of the Officer up to date has been that I received an order from him directing me to take part in a political demonstration on August 1, i.e. the very day on which the riot which occasioned the order in this case took place. It is true that I received the order about a week after the procession had taken place, but it is within my knowledge that certain Judges of the High Court received a similar order on or before August 1. I must confess that a public official, who knows so little about constitutional proprieties as to imagine that Judges are to be ordered by himself or anybody else to take part in any political demonstration, is not one on whose discretion! I think a Magistrate can safely rely.

10. That brings me to another definite illegality in this order, which is that the learned Chief Presidency Magistrate has delegated to the Public Relations Officer a discretion which he ought to have exercised himself. The learned Magistrate ought to have said in precise and definite language what it was that he was directing the applicant to abstain from doing by the order made under Section 144, and in my opinion to say that the applicant was to refrain from doing something which a third party did not approve was not an order which complied with the section. It is for the Magistrate himself, and not for the Public Relations Officer to say what is the character of the publication which is forbidden.

11. In my opinion the order made by the learned Chief Presidency Magistrate on August 1 is not one which falls within the terms of Section 144, and must be set aside.

Sen, J.

12. I agree.


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