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Emperor Vs. Afaq HusaIn Jauhar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1941All70
AppellantEmperor
RespondentAfaq HusaIn Jauhar
Excerpt:
.....was quashed. the learned sessions judge failed to realise that the order was directed to the public living in the particular areas referred to in the order. it does not necessarily mean a restricted locality like a market or a park. it includes a part of the town, such as a ward (or several wards) of a municipality provided that part is sufficiently well defined and the boundaries on all sides are clearly given. i see no reason why the limits of the union committee, if clearly and specifically defined, should not be considered as describing a particular place. it would have been better if the word 'administered' had not been used, and we take this opportunity of indicating that it would be well if in issuing such orders district officers have regard to the exact terms of the..........conviction was quashed. in the present case too the order relates to general public living in the areas of cawnpore municipality etc, and it cannot be said that this order referred to the general public when frequenting or visiting a particular place.2. the order in the present case was as follows:whereas communal feelings in cawnpore are strained and increase in communal tension is likely to result in a breach of the peace and a disturbance of the public tranquillity, i.l.p. hancox, district magistrate, cawnpore, hereby prohibit within the areas administered by the cawnpore municipality, the cawnpore cantonment authority and the juhi notified area committee any person from printing or publishing in any way any article, leaflet or pamphlet, etc., likely to increase a communal tension or.....
Judgment:

1. This is an appeal by the Local Government against the acquittal of the respondent, Afaq Husain Jauhar. The respondent is the editor, printer and publisher of the Urdu newspaper 'Khaiyat', Cawnpore. On 17th March 1939, an order was issued by the learned District Magistrate, Cawnpore, under Section 144, Criminal P.C. prohibiting the public living in the areas administered by the Cawnpore Municipality, the Cawnpore Cantonment Authority and the Juhi Notified Area Committee from printing or publishing in any way any article, leaflet or pamphlet, etc. likely to increase communal tension or to excite inter-communal feeling and lead to a breach of the public peace. The respondent published an article under the headline 'Sanginon ke saye men Kailash Hotel men baja', (i.e. 'music in the Kailash Hotel under the protection of bayonets'), on 3rd April 1939 in his paper in disobedience of the order. He was prosecuted under Section 188, I.P.C. for this publication and was convicted and sentenced to pay a fine of Rs. 100. He appealed to the learned Sessions Judge, who relying on a judgment of a learned single Judge of this Court, reported in Sat Narain v. Emperor ('39) 26 A.I.R. All. 746 set aside his conviction and sentence and acquitted him. In his order the learned Judge observed:

The ruling says that 'the first two clauses of Section 144, Criminal P.C. do not invest the Magistrate with any power to issue an order to the general public' A provision for such an order is, however, made in Sub-clause (3) of Section 144, Criminal P.C., and the obvious conclusion from the terms of this sub-clause is that no order under Section 144 can be issued to the general public except when 'frequenting or visiting a particular place.' This is a clear limitation placed by the law upon the power given to the Magistrate to issue an order to the general public under Section 144, Criminal P.C., and any order which ignores this limitation must be held to be bad in law. In that case the accused was the publisher of a newspaper in Allahabad, and it was held that a general order such as the one in the case now in point was bad in law, and the conviction was quashed. In the present case too the order relates to general public living in the areas of Cawnpore Municipality etc, and it cannot be said that this order referred to the general public when frequenting or visiting a particular place.

2. The order in the present case was as follows:

Whereas communal feelings in Cawnpore are strained and increase in communal tension is likely to result in a breach of the peace and a disturbance of the public tranquillity, I.L.P. Hancox, District Magistrate, Cawnpore, hereby prohibit within the areas administered by the Cawnpore Municipality, the Cawnpore Cantonment Authority and the Juhi Notified Area Committee any person from printing or publishing in any way any article, leaflet or pamphlet, etc., likely to increase a communal tension or to excite inter-communal feeling and lead to a breach of the public peace.

This order will remain in force for a period of two months, unless previously withdrawn.

3. The question for our decision is whether this order is competent and valid under Section 144(3). Section 144(3) enjoins that

any order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

4. Under this sub-section an order can be directed to a particular individual or to the general public when frequenting or visiting' a particular place. The power of the Magistrate under this section is confined to the direction to a particular person to abstain from acts of a certain character or to the public generally to abstain from similar acts when frequenting a particular place. When because of the number of persons to be directed it is impracticable for the Magistrate to issue notice to each individual, he can issue an order to the public generally, including, besides residents, persons who may frequent or visit a particular place, and such order will be effective against each individual to whose knowledge it has come. The act of residing in a place includes the acts of frequenting or visiting it. It is difficult to conceive how a person can reside in a particular place without frequenting or visiting it. The learned Sessions Judge failed to realise that the order was directed to the public living in the particular areas referred to in the order. The order was in fact directed to the public generally when frequenting or visiting particular areas. There was, therefore, no defect or illegality in the order. It conformed to the requirements of Section 144, Criminal P.C.

5. Learned Counsel for the respondent has relied on Queen-Empress v. Lakshmidass Makandass ('90) 14 Bom. 165, Emperor v. Bhagubhai ('14) 1 A.I.R. 1914 Bom. 198, Ponnappa Aiyangar v. Vanamamalai Ramanuja Jeer ('20) 7 A.I.R. 1920 Mad. 847, Ashutosh Roy v. Haris Chandra : AIR1925Cal625 , Abdul Majid v. Nrependra Nath : AIR1934Cal393 , Moti lal Gangadhar v. Emperor ('31) 18 A.I.R. 1931 bom. 513 and Belvi v. Emperor ('31) 18 A.I.R. 1931 Bom. 325. In all these cases it has been held that an order under Section 144(3) ought to be directed to the public generally when frequenting or visiting a particular place. In none of these cases the order was directed to the public living in a particular area, and consequently the question whether they came under the limitation 'when frequenting or visiting a particular place' imposed by Sub-section (3) was not considered. In our judgment, to live in a particular place is to frequent it. A person residing in a prohibited area is one who 'frequents or visits' it. The cases above cited have no bearing on the validity of the order in question. In Shanker v. Emperor : AIR1935All552 , Abdul karim v. Emperor ('37) 24 A.I.R. 1937 Lah. 80 and Bhagwati Prasad v. Emperor : AIR1940All465 it was held that an order under Section 144 (3) can be issued to the public residing in a particular area. In Abu Hussain Shaik v. Emperor : AIR1940Cal358 it was held:

A Magistrate may direct the public generally to abstain from a certain act, provided the prohibition is limited to occasions on which the members of the public may frequent or visit a particular place.

6. Section 144(3) contemplates prohibition of some act on the occasion the particular place referred to in the order is frequented or visited. It was further contended by learned Counsel for the respondent that the order was invalid, as the area referred to in the order was vaguely denned. He relied on Vasant B. Khale v. Emperor ('34) 21 A.I.R. 1924 Bom. 375 and In re Madan Kishore ('40) 27 A.I.R. 1940 pat. 446. These cases do not support his contention. In Vasant B. Khale v. Emperor ('34) 21 A.I.R. 1924 Bom. 375 it was held:

The expression 'particular place' implies that it should be sufficiently particularised, so that the public might feel no vagueness or uncertainty about the prohibited area. It does not necessarily mean a restricted locality like a market or a park. It includes a part of the town, such as a ward (or several wards) of a Municipality provided that part is sufficiently well defined and the boundaries on all sides are clearly given.

7. In In re Madan Kishore ('40) 27 A.I.R. 1940 pat. 446 where the order was to operate within the limits of the Nawadah Union Committee, it was observed:

I see no reason why the limits of the Union Committee, if clearly and specifically defined, should not be considered as describing a particular place.

8. Learned Counsel for the respondent also referred to Belvi v. Emperor ('31) 18 A.I.R. 1931 Bom. 325 and Moti lal Gangadhar v. Emperor ('31) 18 A.I.R. 1931 bom. 513, but these cases were not followed by the Bombay High Court itself in Sorab Shavaksha v. Emperor ('35) 22 A.I.R. 1935 Bom. 33. There it was observed:

In my opinion an order directed to the public when frequenting public or private streets in a particular city is sufficiently definite as to comply with the requirements of Section 144. People can havft no real difficulty in recognising when they are in the streets of a particular town, and it is only when in that situation that people are forbidden to organise or take part in processions.

9. In Niharendu Dutt v. Emperor : AIR1939Cal703 the order related to the whole sub-division. Referring to the Bombay cases it was observed:

If we apply the test laid down by the learned Judges in those two Bombay cases, it would be very difficult to say where a place ends and an area begins. It is obvious that a line would have to be drawn somewhere and for my part I shall find it very difficult to draw such aline. Nor is the matter of much practical importance: for example, if an area may be said to contain 150 places, the Magistrate could pass 150 orders in identical terms and the result would be exactly the same. In our opinion, the order is a definite order and it does not contravene the provisions of Section 144.

10. Similarly, in Abdul karim v. Emperor ('37) 24 A.I.R. 1937 Lah. 80 it was held that the District Magistrate had jurisdiction throughout his district and the district of Lahore was a particular place. A 'particular place', referred to in Sub-section (3) may be a large area, and in our judgment all that is necessary is that the place should be so sufficiently defined that the public is reasonably notified of its extent. In the present case the order was directed to the public residing in the areas administered by the Cawnpore Municipality, the Oawnpore Cantonment Authority and the Juhi Notified Area Committee. It would have been better if the word 'administered' had not been used, and we take this opportunity of indicating that it would be well if in issuing such orders district officers have regard to the exact terms of the statutory provisions under which they purport to act. Be that as it may, there can be no doubt in the present case that the areas meant were the areas within the boundaries of the Cawnpore Municipality, the Cawnpore Cantonment Authority and the Juhi Notified Area Committee. The delimitation, we think, was reasonably clear. The case of a resident within a prohibited area is different from that of a person residing outside it. In his mind there can be little uncertainty as to the area in which he resides or as to contiguous areas. The respondent is a resident of Cawnpore. In the trial Court he did not object to the description of the areas covered by the order. Though the areas referred to in the order might have been more clearly defined, we think that the description is sufficiently detailed as to leave no doubt in the minds of the residents therein. The only objection that was taken by the respondent at the time of the trial was that 'The accused had no information or knowledge about any order under Section 144 passed by any authority.'

11. The prosecution led evidence to prove that the order was duly promulgated by beat of drum and publication in local newspapers. Pandit Ram Prasad, Sub-Inspector, deposed to that effect, and no question was put to him on this point in cross-examination. In a case like this all that can reasonably be demanded of the prosecution is proof of circumstances from which it may be inferred that the accused had knowledge of the order. If such proof is forthcoming, the onus is on the accused to prove ignorance of the order despite publication. In this case no evidence has been led by the accused. The finding of the learned trial Magistrate that the accused had knowledge of the order must therefore stand. In our judgment there is no ground for interfering with the decision of the learned trial Magistrate on merits. We have seen the offending article. There can be no doubt that it was such as was likely to increase the communal tension and bitterness which already existed in the City of Cawnpore. In the result we allow the appeal, set aside the order of acquittal of the learned Sessions Judge, convict the respondent under Section 188, Penal Code, and sentence him to pay a fine of Rs. 100. In default of payment of fine he will undergo rigorous imprisonment for six weeks.


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