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In Re: Pandurang Shidrao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Criminal Revision No. 312 of 1910
Judge
Reported in(1910)12BOMLR1029
AppellantIn Re: Pandurang Shidrao
Excerpt:
.....iv of 1890), section 44-religious procession-exhibition of an emblem-vyasanlol emblem- lingayats-district magistrate-order permitting the carrying of emblem-high court- revisionary powers-criminal procedure code (act v of 1898), section 435- jurisdiction.;an order passed by a district magistrate under section 44 of the bombay district police act, 1890, being a mere executive police order, cannot be interfered with by the high court under its criminal revisional jurisdiction.;it is competent to a district magistrate, acting under section 44, to order that persons forming a religious procession on a particular day and on specified roads may carry a particular emblem. - - the applicants aver that this emblem is highly offensive to their religious feelings. that they were entitled, like..........of the town of athni, and their prayer is that this court will set aside an order made by the district magistrate permitting the lingayats of the town to go in procession carrying the emblem known as vyasantol. the applicants aver that this emblem is highly offensive to their religious feelings.2. the rule which was granted has been fully argued, and we have heard counsel on both sides. the case raises at once the preliminary question whether this court has any jurisdiction to review the order under section 435, criminal procedure code. in order to determine that question, it is necessary to state shortly what the order is, and how it came to be passed.3. on the nth july last certain members of the lingayat immunity at athni petitioned the district magistrate that they might be.....
Judgment:

Batchelor, J.

1. This is an application in revision under Section 435 of the Criminal Procedure Code. The applicants are, either wholly or mainly, Brahman residents of the town of Athni, and their prayer is that this Court will set aside an order made by the District Magistrate permitting the Lingayats of the town to go in procession carrying the emblem known as Vyasantol. The applicants aver that this emblem is highly offensive to their religious feelings.

2. The rule which was granted has been fully argued, and we have heard Counsel on both sides. The case raises at once the preliminary question whether this Court has any jurisdiction to review the order under Section 435, Criminal Procedure Code. In order to determine that question, it is necessary to state shortly what the order is, and how it came to be passed.

3. On the nth July last certain members of the Lingayat immunity at Athni petitioned the District Magistrate that they might be allowed to carry out this Vyasantol procession, as their Jagadguru or Head Priest was then making a visit to Athni: they set out that the Brahman opposition was unreasonable; that this Identical procession had been allowed at Siddapur in Kanara despite the opposition of the local Brahmans; that they were entitled, like other communities, to carry their religious procession through the streets; and that there was no danger of any disturbance of the public place. The District Magistrate, after calling for reports and acquainting himself with the case made by the present applicants and the previous orders passed in the controversy, made the order complained of after setting out his reasons therefor. The order is as follows:

I therefore allow the Lingayats of Athni to hold a Vyasantol procession after the termination of the Qanesh festival. The procession will be allowed to take place in Athni town on the 20th September 1910 between the hours of 8 and :10 A.M. It will enter the town at the Siddheshwar Gate, pass through the Aditwar Peth, the road connecting the latter with the Buddhwar Peth, and then down the Buddhwar Peth to the Gachin Math, where it will terminate at 10 A. M. In this quarter of the town the residents are nearly all Lingayats. The Police Sub-Inspector will conduct the procession with a sufficient force to prevent any possible disturbance.

4. The order does not state the authority under which it affects to be made, but it was treated by the Commissioner in appeal as an order under Section 44 of the Bombay' District Police Act, and has been so treated before us in argument. We have no doubt that that is the Act, and that is the section of the Act, under which the District Magistrate intended to make the order. The question is whether we have any power to disturb it in revision by virtue of Section 435 of the Criminal Procedure Code. Mr. Branson in contending for the affirmative has urged that the order is not such an order as could be made under Section 44 of the Police Act, and that it therefore falls within the reach of our revisional powers. In support of the argument reference is made to the somewhat similar powers conferred on the District Magistrate under Section 144 of the Criminal Procedure Code, as to which Section 435 (3) declares that orders made under Section 144 are not proceedings within the meaning of Section 435.

5. This notwithstanding, the cases show that the High Court will interfere in revision with an order which really falls outside the purview of the section, though purporting to be made under its authority: see, for instance, Ananda Chandra Buttacharjee v. Carr Stephen ILR (1891) Cal. 127, Queen Empress v. Pratab Chunder Ghose ILR 1898 Cal. 852 and Hurbullubh Narain Singh v. Luchmeswar Prosad Singh ILR (1898) Cal. 188. So here, it is urged, if the order is beyond the authority conferred by Section 44 of the Police Act, if it is not indeed an order under that section, it cannot be saved by calling it an order under that section, and it is exposed to revision by this Court. It will be seen that in the view which we take of the case it is not necessary for us to decide this point, but we will express our opinion on it in deference to the arguments we have heard.

6. For the purpose of this argument, then, let us for the moment assume that the order is in excess of the power conferred by Section 44 of the Police Act. On that assumption, has this Court jurisdiction to interfere in revision Our powers in revision are defined by Section 435 of the Criminal Procedure Code, which authorises us to ' call for and examine the record of any proceeding before any inferior Criminal Court ' situate within the limits of the jurisdiction; and under Section 439 we have large powers of interference with orders made in any proceedings so called for and examined. Now orders made by Magistrates under Section 144, Criminal Procedure Code, are judicial orders: they are orders made by it ferior Criminal Courts; and if any such order, though purporting to be made under the section, falls outside its scope, then it is not an order under the section; and since it is an order made by an inferior Criminal Court, it is amenable to revision under Section 435. That, we understand, is in brief the reasoning upon which the learned Judges of the Calcutta High Court proceeded in the cases above referred to.

7. But Mr. Coyaji contends that this reasoning is inapplicable to the present order even on the assumption that it goes beyond the scope of Section 44 of the Police Act. And we think that this contention should be allowed. We think that the order is, under the Statute, not an order by an inferior Criminal Court, or by any Court at all, but is a mere executive Police order, with which we have no authority to interfere. Whether it is good or bad, it is made, as we have explained, under Section 44 of of Bombay Act IV of 1890, a Statute which describes itself as an Act ' for the regulation of the District Police of the Bombay Presidency.' It is divided into chapters, and after a preliminary chapter dealing with the repeal of enactments and definitions, the succeeding chapters are [entitled ' Organization of the Police,' ' Regulation, Control and Discipline of the Police,' ' Police Regulations,' and ' Executive Powers and Duties of the Police.' Section 44 falls under Chapter IV, ' Police Regulations,' and empowers the ' Magistrate of the District ' to issue orders for the maintenance of order at religious ceremonials and processions. Section 13(1) enacts that the District Superintendent and the police force of a district shall be under the command and control of the ' Magistrate of the District.' Thus, reading Section 44 with the rest of the enactment, we are of opinion that an order made, or purporting to be made, under Section 44 is an executive order made by the Head of the Police of a District for the maintenance of public order at religious processions. It is not, we think, a judicial order: it is not an order made by a Court at all, the Act making no mention of Courts; it is an executive Police order made for the purpose of temporarily safe-guarding the public peace. No judicial inquiry is prescribed as a condition precedent to making the order, which under Sub-section (2) leaves unaffected all questions of civil right. It would appear, therefore, that the proper remedy for any person considering himself aggrieved by such an order is to appeal to the Executive Government; in our opinion this Court has no power of review.

8. We have so far discussed the case on the assumption that the District Magistrate's order cannot be brought within the terms of Section 44. We are, however, of opinion that that assumption is unfounded. We have set out above the terms of the order. The terms of Section 44, Sub-section (1) are as follows :-

In any case of an actual or intended religious or ceremonial or corporate display or exhibition or organized assemblage in any street as to which or the conduct of or participation in which it shall appear to the Magistrate of the district that a dispute or contention exists which is likely to lead to grave disturbance of the peace, such Magistrate may give such orders as to the conduct of the persons concerned towards each other and towards the public as he shall deem necessary and reasonable under the circumstances, regard being had to the apparent legal rights and to any established practice of the parties and of the persons interested. Every such order shall be published in the town or place wherein it is to operate and all persons concerned shall be bound to conform to the same.

9. Mr. Branson has urged that while the section empowers the District Magistrate to regulate a procession, it does not empower him to permit it, and that he approached the matter wrongly when, at the beginning of his reasons for the order, he observed that the question before him was ' whether it was necessary for the preservation of the public peace to refuse permission.' It would seem that the District Magistrate has left his order exposed to this attack by neglecting the elementary precaution of following strictly the language of the Statute under which he was acting, so that the question which he proposed to himself is not accurately the question which arises on the plain words of the section. But we think that the criticism, so far as it is sound, is merely verbal, and that the question is to be decided rather with regard to the substance and meaning of the order than with regard to the phraseology of the reasoning on which the Magistrate based it.

10. The general rights of religious communities to go in procession through public streets are discussed and explained in Sadagopachariar v. A. Rama Rao ILR(1902) Mad. 376, which was recently followed by this Bench in Baslingappa Parappa Chedachal v. Dharmappa Basappa Chedachal (1910) Bom. L.R. 586. In this case there was no existing decree or order of the Civil Court prohibiting this Vyasantol procession in the town of Athni, though it had been prohibited by executive orders at other times. Moreover it was not the mere procession which either before the Magistrate or before us excited the applicants' opposition : it was the proposed carrying of the Vyasantol emblem, which alone gave rise to controversy. The question, therefore, which the Magistrate had really to decide was whether this emblem should, or should not, be carried; and in deciding in the affirmative the Magistrate of the District was, we think, making a competent order ' as to the conduct of the persons concerned towards each other and towards the public' within the meaning of Section 44. In other words, it was not that the Magistrate, purporting to act under that section, took upon himself to authorise a religious procession which otherwise would have been unlawful; but acting under that section, he had to decide the question whether it was ' necessary and reasonable under the circumstances ' to direct, in the interests of public peace, that the Vyasantol emblem should not be carried. He decided that it was not necessary and reasonable, and in so deciding he was, in our opinion, clearly within the terms of the section. It was urged that the Magistrate had omitted the duty cast upon him by the Act to pay ' regard to the apparent legal rights and to any established practice of the parties and of the persons interested', but we are satisfied from a perusal of the record that these requirements of the law were duly attended to. The closing provisions of the order, as to the time and route of the procession, and as to the presence of the Police, are precisely such provisions as the Magistrate is empowered and is intended to make under the section.

11. It follows that in our opinion the order under notice was within the District Magistrate's powers under Section 44. If that is so, it has not been argued that it is subject to our revision, and we think it is not so subject since it is not an order made by any inferior Criminal Court. In Queen-Empress v. Kaji Sultan (1891) U. Cr.C. 540 that was the view taken by this Court in the case of an order made under Section 43 of the Police Act, and we see no reason to suppose that orders under Section 44 can stand on any different footing. We may add that on a similar objection being taken to the Vyasantol procession in the village of Siddapur, another Bench of this Court discharged the Rule which had been issued on the Lingayats to show cause why the carrying of the emblem should not be fobidden: In re Lakappana Shrinivasappa Unreported, Criminal Revision No. 261 of 1908, decided on the 3rd December 1908.

12. For these reasons we think that this Court has no jurisdiction to review the order complained of, and that the application must fail on this preliminary ground. That being so, we can express no opinion as to the wisdom or expedience or propriety of the order. If the applicants consider themselves aggrieved, they may petition the Government, or they may, if so advised, seek to establish their claim in a Civil Court; but these proceedings in criminal revision are not open to them. We discharge the rule.


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