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Ram Manohar Lohia and ors. Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Case No. 2120 of 1966
Judge
Reported inAIR1968All100; 1968CriLJ281
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144 and 491; Constitution of India - Articles 13, 14, 19, 19(1), 19(2) and 19(3); Indian Penal Code (IPC), 1860 - Sections 188
AppellantRam Manohar Lohia and ors.
RespondentState of U.P. and ors.
Appellant AdvocateS.N. Kackkar, ;R.C. Srivastava and ;R. Pandey, Advs.
Respondent AdvocateParty in person and ;J.R. Bhatt, Govt. Adv.
DispositionPetition dismissed
Excerpt:
(i) criminal - habeas corpus - writ petition - section 491 of criminal procedure code, 1898 - petitioner released from jail on bonds - entitled to file a petition. (ii) constitution - articles 13, 19(1)(a), (b), 19(2), 19(3) and 141 of constitution of india, section 188 of indian penal code, 1860 and section 144 of criminal procedure code, 1898 - imposition of restriction on the right to freedom of speech and expression - sections are so wide that powers are higher than the restriction imposed upon it - supreme court cover the matters beyond the reasonableness of restrictions - section 188of indian penal code make punishable any act only when it is done in disobedience to an order. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants.....gangeshwar prasad, j. 1. this is a petition for writ of habeas corpus by seven persons who were confined as undertrial prisoners in the district jail of agra at the time of making the petition. petitioner no. 1 is dr. ram manohar lohia who is a member of the lok sabha; petitioner no. 2 is sri brij raj singh who, according to the petition, is an old worker of the samyukt socialist party and who was member of the lok sabha from 1957 to 1962; petitioner no. 3 is sri baloji agarwal, who is a member of the uttar pradesh vidhan sabha from the agra city constituency; and the remaining petitioners are sri hukum singh parihar, sri ram sanehi lal yadava, sri kitab singh yadaya and sri ganga prasad sharma who, according to the petition, are active workers of the samyukt socialist party. the opposite.....
Judgment:

Gangeshwar Prasad, J.

1. This is a petition for writ of Habeas Corpus by seven persons who were confined as undertrial prisoners in the district Jail of Agra at the time of making the petition. Petitioner No. 1 is Dr. Ram Manohar Lohia who is a member of the Lok Sabha; petitioner No. 2 is Sri Brij Raj Singh who, according to the petition, is an old worker of the Samyukt Socialist Party and who was member of the Lok Sabha from 1957 to 1962; petitioner No. 3 is Sri Baloji Agarwal, who is a member of the Uttar Pradesh Vidhan Sabha from the Agra City Constituency; and the remaining petitioners are Sri Hukum Singh Parihar, Sri Ram Sanehi Lal Yadava, Sri Kitab Singh Yadaya and Sri Ganga Prasad Sharma who, according to the petition, are active workers of the Samyukt Socialist party. The opposite parties to the petition are the State of Uttar Pradesh, Sri Ravi Shanker Johri, District Magistrate Agra, and Sri K. C. Seth, Additional District Magistrate (Judicial), Agra.

2. The facts which led upto the petition are briefly as follows: Some political parties including the Samyukt Socialist Party were trying to organise 'U. P. Bandh' on July 12, 1966. In view of this situation, Opposite party No. 2, the District Magistrate of Agra, acting under Section 144 Cr. P. C. passed an order the relevant portions of which are as follows:

'To

The General Public residing or frequenting Agra District.

Whereas information has been received that in connection with U. P. Bund Agitation there is likelihood of some sections of the public indulging in violence and lawlessness to force the closure of shops, offices etc. and thereby causing breach of the peace and

Whereas immediate prevention and speedy remedy is desirable for maintaining public peace and tranquillity;

Now, Therefore in exercise of the powers under Section 144 of the Code of Criminal Procedure 1898, I. R. S. Johri District Magistrate, Agra hereby order as follows:

(i) No procession or demonstration of any kind shall be organised or taken out anywhere in the district without a special permit from me or from the Sub-Divisional Magistrate concerned or the Superintendent of Police Agra.

(ii) No assembly of five or more persons shall gather together at any public place. Any such assembly shall be deemed to be unlawful and shall be liable to be dispersed by necessary force without further warning if it does not disperse upon command by a Magistrate or an officer in charge of the Police Station.

Exception -- This prohibition does not apply to bona fide religious assemblies at places of worship like temple, mosque, gurdwara, church, etc.

(iii) .. .. .. .. .. .

(iv) .. .. .. .. .. .

(v) .. .. .. .. .. .

(vi) No person shall indulge in any inflamatory speech as may likely to cause disturbance of the public peace.

(vii) .. .. .. .. ..

(viii) No person shall shout or make use of any slogans in public street of public places likely to cause a breach of the peace.

(ix) This order shall come into force at once and shall remain in force for a period 15 days unless withdrawn earlier.

(x) This order is passed ex parte in view of the emergency.

(xi) This order shall apply to the limits of Agra District;

(xii) A breach of any of the provisions of this order is punishable under Section 188 of the Indian Penal Code.

(xiii) ..................

Given under my hand and the seal of the Court this Tenth day of July 1966.

Sd/- R.S. Johri,

District Magistrate, Agra.

A public meeting in connection with the observance of U. P. Bundh Day had been arranged to be held in the evening of July 11, 1966 in Phulatti Bazar, Agra and it was to be addressed by Dr. Ram Manohar Lohia Dr. Ram Manohar Lohia arrived at Rajamandi Railway Station Agra in the afternoon of July 11, 1966 by the Toofan Express and when he came out of the railway station he was arrested by the Police. The other petitioners, who were present at the railway station to receive Dr. Ram Manohar Lohia, were also arrested by the police at the same time. These arrests were for alleged violation of the above order of the District Magistrate of Agra. Counter-affidavits filed on behalf of the opposite parties do not disclose the acts which the petitioners are said to have committed In violation of the order of the District Magistrate, but they may be gathered from Annexure '4' to the counter-affidavit of Shri J. P. Srivastava, Assistant Public Prosecutor, Agra. The annexure purports to be a copy of a report made in the General Diary of Police Station Hariparvat, Agra on July 11, 1966, at 5.00 p.m. by Kr. Tej Pal Singh, Inspector in charge, who effected the arrests of the petitioners with the help of other police officers. It has been stated in the report after getting down from the train Dr. Ram Manohar Lohia delivered an objectionable speech at the platform of Rajamandi Station stressing that the Bundh had to be organised at all costs, and that the speech created a fear in the public mind. It has further been stated in the report that the other petitioners formed a procession and joined Sri Ram Manohar Lohia in shouting slogans of various kinds. Mention may also be made of the fact that in paragraph 14 of their petition the petitioners say that at the time of his arrest Dr. Ram Manohar Lohia asked the police officers who had arrested him as to whether they were imposing restrictions on freedom of speech and they replied that he had already delivered a speech. However, whether the petitioners did the acts alleged to have been done by them and whether those acts constituted violation of the order of the District Magistrate are questions which are not to be determined in this proceeding and, indeed, neither Sri S. N. Kacker, learned counsel for the petitioners, nor Dr. Ram Manohar Lohia who addressed the Court also in person dealt with these questions.

3. The arrest of the petitioners took place at about 2.45 p.m. The same day at about 4.00 p.m. they were produced before Sri S. N. Sharma, Judicial Officer Agra, who remanded the petitioners to fail custody upto July 12, 1966, Till then no complaint had been filed against the petitioners. On July 12, 1966, however, opposite party No. 2, the District Magistrate of Agra, filed a complaint against the petitioners before Sri A. N. Kapoor, Magistrate 1st Class Agra, stating that the petitioners had contravened his prohibitory order under Section 144 Cr. P. C. dated July 10, 1966 and the contravention was punishable under Section 188 I. P. C. The petitioners were not brought to court from jail on that date and an application, copy of which is Annexure '5' to the counter-affidavit of Sri J. P. Srivastava, was moved on behalf of the State before Sri A. N. Kapoor stating that due to heavy law and order duties it was not possible to arrange escort for bringing undertrials from jail and requesting him that proceedings in the case against the petitioners be taken in the jail premises. The Magistrate accepted the request, but reached the jail at about 5.00 p.m. The petitioners were produced before him and copies of the complaints filed against them by the District Magistrate of Agra, and, according to the counter-affidavit of Sri J. P. Srivastava, Assistant Public Prosecutor Agra copies also of the General Diary report made by Kr. Tej Pal Singh in police station Hariparvat on July 11, 1966, at 5.00 p.m. were furnished to them. The petitioners made an application, copy of which is Annexure '6' to the counter-affidavit of Sri J. P. Srivastava, praying that further proceedings in the case be taken forthwith and the statements of the petitioners and the prosecution witnesses be recorded. The Magistrate, however, adjourned the hearing of the case to July 16, 1966 with the direction that it would take place in court. Meanwhile, on July 13, 1966, the petitioners applied to the Additional District Magistrate (Judicial), Sri Chitrangad Singh, for the transfer of the case from the court of Sri A. N. Kapoor. The application was allowed on July 14, 1966 and the Additional District Magistrate (Judicial) transferred the case from the court of Sri A. N. Kapoor to his own court. On July 16, 1966 an application was moved on behalf of the State before the sessions Judge Agra for the transfer of the case from the court of Sri Chitrangad Singh, Additional District Magistrate (Judicial), and for staying proceedings meanwhile. While this application was pending Sri Chitrangad Singh was transferred from Agra and Sri K. C. Seth took over charge as Additional District Magistrate (Judicial) Agra on July 18, 1966. The State did not thereafter press its application for transfer. On July 20, 1966 the petitioners sent this petition from jail A day later, i.e. on July 21, 1966, the petitioners were released from jail on their furnishing personal bonds of Rs. 200/- each as directed by the Sessions Judge Agra by his order dated July 16, 1966. The position, therefore, is that a case under Section 188 I.P.C. for the alleged infringement of the above quoted order of the District Magistrate passed under Section 144 Cr. P. C. is pending against the petitioners and they have been released from jail on their executing personal bonds.

4. The writ petition, as originally presented by the petitioners, contains the following prayers:

(1) Section 144 Cr. P. C. or that pari of it which relates to disturbance of the public tranquillity or a riot or an affray be struck down as unconstitutional, and

(2) as a consequence of the grant of the above prayer the petitioners be released but even if the State withdraws the case against the petitioners, the question of the constitutionality of Section 144 Cr. P. C. be determined.

In the course of the hearing of the petition the petitioners made an application for amendment of their petition seeking to add the prayer that Section 188 I. P. C. also be declared unconstitutional and the application was allowed. The petition thus challenges the validity of Section 144 Cr. P. C under which the order of the District Magistrate of Agra which the petitioners are alleged to have contravened was passed and also the validity of Section 188 I. P. C. under which a prosecution is pending against the petitioners.

5. On behalf of the State the learned Govt. Advocate raised a preliminary objection to the hearing of the petition. He urged that since the petitioners have been released from jail their petition has become infructuous and no writ of Habeas Corpus can now be issued. The objection is plainly untenable. The petitioners have been released, on their furnishing personal bonds as required by the order of the Sessions Judge of Agra. The release has not, therefore, restored the petitioners to their liberty and they are subject to the restraint of the bonds that they have furnished and may again lose the limited freedom granted to them on breach of the conditions of the bonds. In the case of Babulal Parate v. State of Maharashtra : 1961CriLJ16 the Supreme Court had before it a petition under Article 32 of the Constitution praying among other things for a writ of Habeas Corpus by a petitioner who was released on bail by the trying Magistrate after the proceedings pending against him had been stayed by the Supreme Court, but the Supreme Court did not on account of the release of the petitioner, treat the petition as infructuous but disposed it of on merits after a determination of the questions raised in the petition. The question whether a person who has been released on bail can present a petition for a writ of Habeas Corpus was specifically raised before a Division Bench of this Court in Zahir Ahmad v. Ganga Prasad : AIR1963All4 and it was held that such a person remains under the control of the court and notionally in the custody of the court and he can, therefore, present a petition for a writ of Habeas Corpus. The learned Government Advocate sought to distinguish these cases on the basis that the petitioners therein had been released on bail whereas the petitioners in the instant case have been released only on their executing personal bonds. This cannot, however, be any basis for distinction. A personal bond, as a condition of release, involves restrictions on liberty just as bail does, and if a person already on bail may present a petition for a writ of Habeas Corpus or a person released on bail subsequent to the presentation of such a petition may have his petition decided on merits, there appears to be no reason why a person who has been released on his furnishing a personal bond may not present a petition, or a person, upon his release on furnishing personal bond subsequent to the presentation of a petition for Habeas Corpus, may not obtain a decision on the questions raised in his petition, if he is otherwise entitled to do so. The preliminary objection must, therefore be overruled and the petition must be decided on merits.

6. The constitutionality of Section 144 Cr. P. C. has been challenged on behalf of the petitioners on two grounds: firstly, that the section authorises the imposition of restrictions on the right to freedom of speech and expression. In the interests of things which are not covered by Article 19(2) of the Constitution, and restrictions on the right to assemble peaceably and without arms in the interests of things which are not covered by Article 19(3) of the Constitution; and secondly, that the powers which are exerciseable under the section are so wide that the restrictions which it has the effect of imposing upon the fundamental rights are unreasonable. In view, however, of the pronouncement of the Supreme Court in the case of : 1961CriLJ16 it is on the first ground that emphasis has really been laid.

7. It is indisputable that the second ground of challenge is clearly ruled out by the decision of the Supreme Court in the above mentioned case. The question of the vires of Section 144 Cr. P. C. was raised in the case on a petition under Article 32 of the Constitution and the main contention on behalf of the petitioners was that the section places unreasonable restrictions on the rights guaranteed under Article 19(1)(a) and (b) of the Constitution. After an exhaustive consideration of the provisions of Section 144 Cr. P. C., the Supreme Court repelled the contention and held that 'it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrates it places unreasonable restrictions on certain fundamental rights.' The second ground taken on behalf of the petitioners must, therefore, be rejected at once and it does not call for any further comment.

8. The question, then is whether the law laid down by the Supreme Court in the above case also precludes the first ground of attack on the constitutionality of Section 144 Cr. P. C. Before proceeding to consider that question, however, it is necessary to make a few matters clear. The petitioners in this case are concerned with the constitutionality of only that part of Section 144 which relates to the power of issuing a direction of the nature specified therein if the direction is considered likely to prevent or tends to prevent disturbance of the public tranquillity. The prohibitory order which the petitioners are said to have contravened shows in unmistakeable terms that it was on that part of the section that the District Magistrate based his order. According to the preamble of the order, there were two reasons for passing it. Firstly, information had been received that in connection with the U.P. Bundh Agitation there was likelihood of some sections of the public indulging in violence and lawlessness in order to force the closure of shops, offices etc. and thereby causing breach of the peace Secondly, immediate prevention and speedy remedy was desirable for maintaining public peace and tranquillity. The first reason only expressed the information received by the District Magistrate and even if it may be said that the District Magistrate appears to have accepted the information as correct it merely furnished the occasion for passing the order, but the object intended to be achieved by the order was contained only in the second reason. It is true that the words used in the order, in this connection, are -- 'desirable for maintaining public peace and tranquillity', but there can be no doubt that the word 'public' governs both 'peace' and 'tranquillity' and this has not been disputed on behalf of the petitioners. The position, therefore, is that the order of the District Magistrate was founded on that part of Section 144 which empowers the issue of a certain direction if the Magistrate authorised to issue it considers that such direction is likely to prevent or tends to prevent disturbance of the public tranquillity and since that part alone affects the petitioners their challenge must be confined to that part of Section 144 Cr. P. C. and it cannot extend to the entire section. At one stage of his argument Sri S. N. Kacker, learned counsel for the petitioners, suggested that if any of the objects for which an order under Section 144 Cr. P. C. may be passed falls outside the saving provisions of Article 19(2) and (3) of the Constitution the whole section becomes ultra vires. He also drew attention to the case of Sri Raj Narain Singh v. District Magistrate Gorakhpur : AIR1956All481 where it was held that some of the clauses of the section were in excess of the limits permitted by Article 19(2) of the Constitution. Later, however, this argument was not pressed by the learned counsel and he confined himself to that clause of the section which relates to disturbance of the public tranquillity. I may, however, observe that the various activities for the prevention of which a direction under Section 144 Cr. P.C. may be issued are quite separate and distinct, and the clauses relating thereto are not inextricably mixed but capable of surviving independently of one another. Bearing in mind the test of severability laid down by the Supreme Court in State of Bombay v. F N. Balsara, AIR 1951 SC 318 and State of Bihar v. Sir Kameshwar Singh, : [1952]1SCR1020 , it must be held that even if clauses relating to some of the above mentioned activities are found to offend against the Constitution the whole of Section 144 Cr. P. C. would not on that account become unconstitutional and void. In : AIR1956All481 (supra) also the various clauses relating to the purposes for which an order under Section 144 Cr. P. C. may be passed were held to be severable.

9. The alternative prayer in the first relief claimed by the petitioners in their petition is that such parts of Section 144 Cr. P. C. as relate to the public tranquillity, riot and affray be struck down, and Dr. Ram Manohar Lohia in the course of this argument on the constitutionality of Section 144 Cr. P. C. dwelt at length on those parts of the section also that relate to riot and affray, besides the part relating to the public tranquillity. I, however, think that in this case the vires of only that part of Section 144 has to be determined which relates to disturbance of the public tranquillity, because the order by which the petitioners are affected has that part alone as its basis. Nowhere in the order passed by the District Magistrate is there any reference to riot and affray, and even the first reason given for the order which, as I have already said, was only the information received by the District Magistrate -- there is nothing that may relate the order to prevention of a riot or an affray.

10. I may now briefly set forth the argument advanced on behalf of the petitioners for attacking the constitutionality of that part of Section 144 which relates to disturbance of the public tranquillity and examine whether, in view of what has been laid down by the Supreme Court in : 1961CriLJ16 (Supra), the argument is still open or whether the matter should be regarded as settled in favour of the section, so far as this Court is concerned.

11. The argument on behalf of the petitioners is this. Clauses (2) and (3) of Article 19 of the Constitution do not extend their protection to a law imposing on the rights respectively mentioned therein restrictions in the interests of the public tranquillity. 'Public order' which is one of the things mentioned in Clause (2) and the only thing mentioned in Clause (3) is not synonymous with the public tranquillity, and public disorder connotes a disturbance much graver in nature and magnitude and much larger in extent than a disturbance of the public tranquillity. A law authorizing the passing of an order for preventing disturbance of the public tranquillity is not in relation to the right guaranteed under Article 19(1)(a) of the Constitution, saved by Clause (2) of Article 19 because, if 'public order' is left out of consideration, there remains nothing in that clause which may be said to cover 'the public tranquillity': and in relation to the right guaranteed by Article 19(1)(b), it is not saved by Clause (3) of Article 19, because that clause mentions 'public order' alone. In regard to the Supreme Court decision in Babulal Parate's case : 1961CriLJ16 it was submitted on behalf of the petitioners that in that case the validity of Section 144 Cr. P. C. was not challenged on the ground that the section was outside the saving categories mentioned in Clauses (2) and (3) of Article 19 and the challenge to the validity of the sections was limited to the ground that the restrictions placed by it on certain fundamental rights are unreasonable In the present case, it was contended, the constitutionality of the very power to place restrictions, irrespective of their reasonableness, is in question. It was also said that the question of the power to place restrictions was not considered by their Lordships in Babulal Parate's case : 1961CriLJ16 and in any event, such observations as were made in that case on matters not covered by the ground on which the validity of Section 144 was challenged are in the nature of obiter and are not binding. Great reliance was placed on behalf of the petitioners on the case of Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 and it was urged that the first ground of the petitioners' attack on the relevant clause of Section 144 is supported by what has been laid down there regarding the meaning of the expression 'public order'.

12. It is no doubt true that in Babulal Parate's case : 1961CriLJ16 it does not appear to have been contended on behalf of the petitioners that the power conferred by Section 144 Cr. P. C. is not in the interests of things specified in Clauses (2) and (3) of Article 19 of the Constitution and the section is, therefore, ultra vires, irrespective of the fact whether the restrictions it imposes are reasonable or not. But it is not possible on that basis to contend that the Supreme Court did not consider the constitutionality of the section from that point of view also. The question of the reasonableness of restrictions could arise only when the power to impose restrictions was found to be present and, therefore, the contention that the Supreme Court did not consider whether such a power really existed is unacceptable. Para 16 of the report of the judgment in that case clearly indicates that their Lordships considered the question whether the activities with regard to which the Magistrate is entitled under Section 144 Cr. P. C. to place restraint are such that their prevention would be in the interests of public order and held that they are such activities. If any doubt is still left about the scope and effect of this decision it should be dispelled by the final conclusion reached by their Lordships. That conclusion has been stated in para 34 of the report and is as follows:--

'We have, therefore, reached the conclusion that the order of the District Magistrate is not unconstitutional either because Section 144 is itself violative of fundamental rights recognised in Article 19 or on the ground that it is vague and places unreasonable restrictions on those fundamental rights '.

The opinion expressed in the case by their Lordships, therefore, is that section 144 Cr. P. C. does not violate Article 19 of the Constitution, and it necessarily means that such parts of the section as may have the effect of placing restrictions on the rights guaranteed under Article 19(1)(a) and (b) are respectively protected by Clauses (2) and (3) of Article 19. This being the law declared by the Supreme Court it is binding on this Court under Article 141 of the Constitution and even the first ground on which the validity of Section 144 has been challenged on behalf of the petitioners must accordingly be rejected.

13. The contention that such observations of the Supreme Court in the above case as cover matters beyond the reasonableness of the restrictions placed on certain fundamental rights by Section 144 Cr. P. C. are obiter and, therefore, of no binding effect is wholly misconceived. A declaration of law made by the Supreme Court is not a mere precedent and the necessity of the declaration is not a condition of its binding effect. Even if such a declaration is in the nature of an obiter Article 141 of the Constitution makes it binding on all courts. But quite apart from this, it is obvious that the question whether Clauses (2) and (3) of Article 19 at all permit the imposition of restrictions is logically prior to the question of the reasonableness of the restrictions, and no part of the observations of their Lordships relating to the constitutionality of Section 144 Cr. P. C. was, therefore incidental or unnecessary for the decision of the case and no part of the observations can be regarded as obiter. It is a matter of no consequence that the constitutionality of Section 144 Cr. P. C. was challenged in that case only on the narrow ground of the reasonableness of the restrictions placed by it and not also on the wider ground of the total absence of the power to place restrictions. A declaration of law made by the Supreme Court remains a binding declaration, irrespective of the fact whether all the pros and cons of the matter to which it relates were put forward and argued before it. And this would be specially so when the law declared is in regard to the constitutionality of a statute or a rule, and in such a case the binding effect of the declaration cannot be measured by or limited to the points raised on behalf of the parties or to which express reference is made in the judgment. In this connection I may refer to the following cases:

14. In Sharda Prasad Srivastava v. Accountant General Uttar Pradesh Allahabad : (1957)ILLJ37All the constitutional validity of a contract of service was in question. In a very similar earlier case the Supreme Court had declared a contract of that nature valid. Dealing with a new line of attack taken on behalf of the person challenging the validity of the contract. V. Bhargava, J. observed:--

'Secondly, once the Supreme Court has declared that such a contract of service is valid, it is not open to me to examine the validity of that contract even on any ground which may not, have been considered by the Supreme Court. The law declared by the Supreme Court is binding whether the declaration is made after discussing all possible aspects or without doing so.'

15. In Commr. of Income Tax U. P. and V. P. v. Man Mal Uttam Chand : [1961]42ITR203(All) , a Division Bench of this Court had before it a reference under Section 66(1) of the Indian Income Tax Act 1922 where one of the points involved in the case had previously been decided by the Supreme Court under the Travancore Income Tax Act in which the relevant provisions were similar. V. Bhargava J., who delivered the judgment of the Bench, observed as follows in regard to the effect of the decision of the Supreme Court:--

'In that case their Lordships did not consider the effect of Section 14(2)(c) of the Indian Income Tax Act, as it stood at the relevant time, but we think that in spite of the fact that that provision was not considered that decision given by the Supreme Court is binding on us and is a declaration of law under Article 141 of the Constitution. Consequently we are bound to follow that decision.'

16. In Harkishan Das v. Emperor, AIR 1944 Lah 33 the vires of certain provisions of Defence of India Act was challenged. Adverting to a Federal Court decision and dealing, in the light of Section 212 of the Government of India Act 1935, with the effect of that decision on a contention raised in support of the challenge Munir. J said:

'To this contention the preliminary objection of the Advocate-General is that it cannot be raised in view of the Federal Court decisions in . and Emperor v. Sibnath Banerjee (not yet reported) in which that Court has held that the Defence of India Act is intra vires the Indian Legislature. By reason of Section 212, Government of India Act, the law declared by the Federal Court so far as applicable has to be followed by us and in the two decisions of the Federal Court relied on by the learned Advocate-General the law declared by the Federal Court is that Section 2, Defence of India Act, is not ultra vires the Indian Legislature. It is contended by Mr. Sikri that the precise point urged before us was not taken before the Federal Court in those cases and that consequently there is no adjudication by the Federal Court on the point in question. This is correct but that does not mean that the Federal Court did not declare Section 2 to be intra vires. In our opinion the declaration by the Federal Court that Section 2 is intra vires is binding on us and precludes us from considering the point raised. The Federal Court may have the power, on this point being taken before it, to revise its view but so far as we are concerned we are bound by these decisions.'

17. In my opinion, the Supreme Court decision in Babulal Parate's case : 1961CriLJ16 also precludes the controversy raised in the first ground urged on behalf of the petitioners for challenging the constitutionality of Section 144 Cr. P. C. But even assuming that this ground of challenge is still open I find it altogether unsustainable.

18. The meaning and the scope of the expression 'public order' have been the subject matter of decisions of the Supreme Court and the Federal Court and it has to be seen whether in the light of these decisions, 'public order' in Clauses (2) and (3) of Article 19 should be regarded as synonymous with or as including 'public tranquillity' In AIR 1966 SC 740, Hidayatullah, J. has in his judgment referred to the earlier decisions, giving at one place passages from each; of them bearing on the interpretation of the expression 'public order' along with their context. I may, therefore, quote below that portion of his Lordship's judgment in full which deals with them. His Lordship has observed:

'Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar, 1949 FCR 693 at p. 704 = AIR 1950 FC 59 at p. 63, where the Court dealing with Item 1 of Provincial List. 7th Schedule in the Government of India Act, 1935 which read-

'Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power' observed that 'public order' with which that item began was 'a most comprehensive term' Reference is also made to Romesh Thapar v. State of Madras : 1950CriLJ1514 , where this Court dealing with the same subject matter also observed:

'. ...... .'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established .... it must be taken that 'public safety is used as a part of the wider concept of public order ......'

and referring to Entry in List III (Concurrent List) of the 7th schedule of the Constitution which includes the 'security of ft State' and 'maintenance of public order' as distinct topics of legislation, observed -

'..... The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.'

Fazl Ali, J. took a different view which he had expressed more fully in Brij Bhushan v. State of Delhi. : 1950CriLJ1525 , but he also observed that 'public safety' had, as a result of a long course of legislative practice, acquired a well-recognised meaning and was taken to denote safety or security of the State and that the expression 'public order' was wide enough to cover small disturbances of the peace which do not jeopardise the security of the State and paraphrased the words 'public order' as 'public tranquillity'

Both the aspects of the matters were again before this Court in Supdt., Central Prison, Fatehgarh v. Ram Manohar Lohla : 1960CriLJ1002 , when dealing with the wording of Clause (2) of Article 19 as amended by the Constitution (First Amendment) Act, 1951, it fell to be decided what 'public order' meant, Subba Rao, J. speaking for the Court referred to all earlier rulings and quoting from them came to the conclusion that 'public order' was equated with public peace and safety and said: '..... .Presumably in an attempt to get over the effect of these two decisions, the expression 'public order' was inserted in Article 19(2) of the Constitution by the Constitution (first Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of Article 19. .....'

Summing up the position as he gathered from the earlier cases, the learned Judge observed:

'......... 'Public order' is synonymous with public safety and tranquillity; it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State ........'

These observations determine the meaning of the words 'public order' in contradistinction to expressions such as 'public safety', 'security of the State'. They were made in different contexts. The first three cases dealt with the meaning in the legislative Lists as to which, it is settled, we must give as large a meaning as possible. In the last case the meaning of 'public order' was given in relation to the necessity for amending the Constitution as a result of the pronouncements of this Court. The context in which the words were used was different, the occasion was different and the object in sight was different.'

19. Besides the passages quoted in the above decision from : 1960CriLJ1002 (supra), I think it necessary to draw attention to one more passage from that case which runs as follows:--

'But in India under Article 19(2) this wide concept of 'public order' is split up under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head 'public order' in its most comprehensive sense. But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other. 'Public order' is therefore something which is demarcated from the others. In that limited sense, particularly in view of the history of the amendment, it can be postulated that 'public order' is synonymous with public peace, safety and tranquillity.'

20. The conclusions deducible from these decisions appear to be these; that the expression 'public order' is a comprehensive expression and it should be given a large meaning, though not as large as would be given to it in the legislative Lists of the Constitution; that 'public order' at least comprehends within itself 'public tranquillity' even if it cannot be equated with 'public tranquillity' and that public disorder, unlike national upheavals affecting the security of the State, are of local significance and, as compared to them, less serious. It was urged on behalf of the petitioners and particularly by Dr. Ram Manohar Lohia that public disorder connotes a disturbance much graver in character than a disturbance of the public tranquillity, and that there can be situations in which public tranquillity is disturbed but not 'public order'. It was said that this contention is supported by the observations of Hidayatullah, J. in : 1966CriLJ608 (supra) and reliance was placed on paras 51 and 52 of the report of his Lordship's judgment. I however, do not find that the observations made by his Lordship support the contention which has been put forward. The question involved in that case was whether the expression 'law and order' used by a District Magistrate in an order purporting to have been passed by him under Rule 30(1) (b) of the Defence of India Rules meant the same thing as 'public order' for maintaining which an order of that kind could be passed under the said provision. His Lordship held that 'public order' and 'order' are not identical and explained that distinction between the two concepts. In para 51 of the judgment his Lordship summed up the distinction in the following words:

'The contravention of law always affects order but before it can be said to affect public order, it must affect the community of the public at large.'

His Lordship then proceeded to point out in para 52 the comparative degrees of gravity involved in disturbances of 'law and order', 'public order', and 'security of the State' and observed:--

'It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order', One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State by using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.'

21. The position, therefore, is that while 'public order' is included in and is a part of 'order' it does not cover the entire area of 'order', with the result that although all public disorders are certainly disorders, all disorders are not public disorders, the latter being those aggravated forms of disorders which affect the public at large. What makes this difference in the ideas conveyed by the expressions 'order' and 'public order' is obviously the word 'public' in the latter expression. Since, however, that word is common to both 'public order' and 'public tranquillity', it is clear that the distinction between 'order' and 'public order' cannot hold good between 'public tranquillity' and 'public order'. The question involved in the present case is whether public tranquillity has the same connotation as 'public order' or is at least included in it, but on that question his Lordship has expressed no opinion, and in answering it we have to be guided by the earlier, decisions which have been referred to in his Lordship's judgment and also by a later decision of the Supreme Court to which I shall presently refer. Besides the observations quoted by Hidayatullah, J. from the earlier decisions I may draw attention to two other observations made by Subba Rao, J. (as his Lordship then was) in : 1960CriLJ1002 of the report his Lordship said that 'it can be postulated that 'public order' is synonymous with public peace, safety and tranquillity' and in para 18 of the report his Lordship summed up the position by laying down that ' 'public order' is synonymous with public safety and tranquillity'. Observations to a similar effect were made in the later case of O. K. Ghosh v. E. X. Joseph : (1962)IILLJ615SC where Gajendragadkar, J. (as his Lordship then was), speaking for the Supreme Court, said that in Clause (2) of Article 19 public order is 'virtually synonymous with public peace, safety and tranquillity'. It is not necessary to determine whether, in the light of these decisions, 'public order' and 'public tranquility' should be regarded as interchangeable terms and public tranquillity, by itself and without anything else, may be equated with 'public order', or whether a 'public order' has some other requisites besides public tranquillity. Even if 'public order' and 'public tranquillity are not entirely co-extensive in content the decisions do not, in my opinion, leave any room for doubt that public tranquillity is at least an essential constituent of 'public order' and that 'public order' is a comprehensive concept including within itself as one of its integral parts public tranquillity. The contention of Dr Ram Manohar Lohia that disturbance of the public tranquillity cannot in all cases result in the disturbance of 'public order' could have been acceptable if it had been possible to say that 'public order' can in some cases dispense with the public tranquillity and exist without it. Since, however, 'public order' is inconceivable in the absence of the public tranquillity, whatever has the effect of disturbing the public tranquillity must necessarily disturb 'public order' and it is not possible to say of any situation that although the public tranquillity has been disturbed 'public order' has remained unaffected. The obvious corollary is that whatever is done for preventing disturbance of 'the public tranquillity' must be regarded as done for preventing disturbance of the 'public order' and, hence, in the interests of 'public order'. The restrictions which Section 144 Cr. P. C., permits to be imposed for preventing disturbance of the public tranquillity are, therefore, restrictions within the limits of the saving provisions of Article 19(2) and (3).

22. The view that I take in regard to that part of Section 144 Cr. P. C. which relates to the public tranquillity was also the view taken by this Court in : AIR1956All481 to which I have already referred in another connection. The Division Bench which decided that case held that to the extent to which Section 144 allows the placing of restrictions for preventing disturbance of the public tranquillity or a riot or an affray, it is within the limits permitted by Article 19(2), (3), although it also expressed the opinion that some of the purposes for which restrictions are allowed to be placed by the section are in excess of the said limits. In the instant case, however, the constitutionality of only that part of Section 144 is involved which relates to the public tranquillity, because the order affecting the petitioners was based on that part alone. It is, therefore, unnecessary to express any opinion on any other part of the section.

23. Before leaving this aspect of the case I must note that in the course of arguments on behalf of the petitioners it was not urged that the prohibitory order passed by the District Magistrate of Agra was not an order which could be validly passed under Section 144 Cr. P. C. or that the order suffered from any other defect. In fact, Sri S. N. Kacker, learned counsel for the petitioners, and also Dr. Ram Manohar Lohia, explicitly stated that they pressed the petition only on the basic question of the constitutionality of Section 144 Cr. P. C. and Section 188 I. P. C. and they did not want any other matter to be gone into by this Court in these proceedings.

24. I now proceed to consider the challenge to the vires of Section 188 I. P. C. The arguments which Dr Ram Manohar Lohia, who alone addressed the Court on this part of the case, advanced in support of the challenge were two; firstly, that Section 188 I. P. C. is inconsistent with Section 144 Cr. P. C. inasmuch as disturbance of the public tranquillity is not mentioned in the former section and this omission leads to the anomaly that while an order under Section 144 Cr. P. C. may be passed in the interests of the public tranquillity a disobedience of that order is not punishable if it merely causes or tends to cause a disturbance of the public tranquillity; and secondly, that Section 188 I. P. C. makes the disobedience of an order passed under Section 144 an offence if the disobedience causes or tends to cause any of the results mentioned in the section, but none of the result not even riot or affray is such that the fundamental rights of freedom of speech and peaceable assembly may be restricted for the purpose of avoiding it, and, therefore, by reason of the fact that the section makes the exercise of even the aforesaid fundamental rights punishable it is void.

25. It is certainly true that although Section 188 I. P. C. mentions, in the same words and in the same sequence, all other things for preventing which a direction may be issued under Section 144 Cr. P. C., it does not mention, disturbance of the public tranquillity. About the reason for the absence of these words in Section 188188188188188 I. P. C. one can only speculate. Section 62 of the Code of 1861, Section 518 of the Code of 1872, and Section 144 of the Code of 1882 which were provisions analogous to Section 144 of the present Code of Criminal Procedure did not contain the words 'disturbance of the public tranquillity', and it was in Section 144 Cr. P.C. of the present Criminal Procedure Code of 1892 that these words were for the first time introduced. No corresponding amendment was, however, made in the Indian Penal Code. It may be that the necessity of amending Section 188 I. P. C. and adding therein the said words was overlooked and the mistake has not been detected by the legislature so far. But it may also be that the omission to make a corresponding change in Section 188 I. P. C. was deliberate. The legislature might have thought that causing or tending to cause disturbance of the public tranquillity, as an ingredient of an offence, would not be sufficiently definite for positive proof or disproof, and the disobedience of an order lawfully promulgated by the public servant should be made an offence only if it causes or tends to cause the comparatively more definite and determinate results mentioned in Section 188 I. P. C. To whatever reason, however, the absence of the words 'disturbance of the public tranquillity' in Section 188 I. P C. might be due, there appears to be no inconsistency between Section 144 Cr. P. C. and Section 188 I. P. C., and even if there may be some inconsistency it cannot, to my mind, make either of the sections unconstitutional.

26. Prevention of the disturbance of the public tranquillity is one of the objects for which the competent Magistrate may pass an order under Section 144 Cr. P. C., but in determining whether a person disobeying the order has committed an offence punishable under Section 188 I. P. C. what has to be seen is not whether the disobedience caused or tended to cause disturbance of the public tranquillity, but whether it caused or tended to cause any of the results mentioned in the second and the third clauses of Section 188 I. P. C. Disobedience of an order passed under Section 144 Cr. P. C. for preventing disturbance of the public tranquillity would not, therefore, constitute an offence under Section 188 I. P. C. if it does not cause any of the results mentioned in the latter section, although it may cause or tend to cause a disturbance of the public tranquillity. This may only have the effect of frustrating in some cases a part of the purpose for which an order under Section 144 Cr. P. C. is passed, but it does not create any conflict between the two sections or lead to any anomalous result, unless the frustration to any extent of the object of the order is itself called an anomaly. I say 'part of the purpose of the order' because the things enumerated in the second and the third clauses of Section 188 I. P. C. are not unrelated to the public tranquillity and, it will be noted, riot and affray are included in Chapter VIII of the Indian Penal Code which deals with what have been described by the Code as offences against the public tranquillity. However the fact that in some circumstances an act which was intended to be prevented by an order under Section 144, Cr. P. C. may not be covered by Section 188 I. P. C. and may go unpunished cannot be said to introduce any element of constitutional infirmity in either of the two sections.

27. Coming to the second argument of Dr. Ram Manohar Lohia regarding Section 188 I. P. C., I may mention that the complaint filed by the District Magistrate of Agra against the petitioners states only the alleged fact of disobedience of the directions issued by him under Section 144 Cr. P. C, and there is nothing in it to show the results, if any, the disobedience caused or tended to cause. However, Sri S. N. Kacker and Dr. Ram Manohar Lohia stated in the course of their argument that they did not seek to support the petition on this feature of the complaint. The argument of Dr. Ram Manohar Lohia was that the whole of Section 188 I. P. C. was unconstitutional although he laid special emphasis on that part of it which relates to riot and affray, presumably because he thought that the other things mentioned in the second and the third clauses of Section 188 I. P. C. could not possibly have any relation to 'public order'. In my opinion, there is a basic misconception involved in the argument. Section 188 I. P. C. does not make punishable any act as such but only when it is done in disobedience to an order duly promulgated by a public servant lawfully empowered to do so. In the absence of such an order the act would remain altogether unaffected by the provisions of the section and it is the order prohibiting that act that has the effect of attaching to it the penalty of the section. What is, therefore, made punishable under Section 188 I. P. C, when an order placing constitutionally permissible restrictions on certain fundamental rights is disobeyed, is not the exercise of the fundamental rights but the transgression of the constitutionally valid restrictions imposed upon the exercise of the rights. There can be no doubt that if Section 188 I. P. C. had made mere disobedience of an order of the above character an offence, even though the disobedience was not attended by anything else, it would have been open to no objection on the score of constitutionality. Does the section, then, suffer from the vice of unconstitutionality, because it makes the disobedience punishable only under certain conditions? In so far as Section 188 I. P. C. requires something more than mere disobedience of an order imposing permissible restrictions on fundamental rights before an act can become an offence under that section, it only mitigates the rigour of the restrictions. It is, therefore, incorrect that Section 188 I. P. C. makes the exercise of the fundamental rights guaranteed under Article 19(1)(a) and (b) punishable in the interests of things other than 'public order'. If an order under Section 144 Cr. P. C. imposing restrictions on such rights is constitutional by reason of its being in the interests of 'public order', a law punishing its disobedience would also be constitutional, irrespective of the presence or absence of any other requisite for making the disobedience punishable. The second argument which has been advanced for challenging the constitutionality of Section 188 I. P. C. is also therefore, untenable.

28. As a result of the foregoing discussion, I am of the opinion that Section 144 Cr. P. C., in so far as it empowers the issue of directions which are likely to prevent or tend to prevent a disturbance of the public tranquillity, is constitutional and not ultra vires. I express no opinion on any other part of Section 144 Cr. P. C. because it is not necessary to do so. I am also of the opinion that Section 188 I. P. C. is constitutional and not ultra vires.

29. The points raised in support of the petition fail and the petition should accordingly be dismissed.

Mahesh Chandra, J.

30. The facts leading to the arrest of the petitioners are very simple. They have been given in detail in the judgment of my learned brother and need not be repeated. The District Magistrate of Agra issued an order on 10-7-1966 under Section 144, Criminal Procedure Code. In the preamble of the order he mentioned that from the information received in connection with the U. P. Bundh agitation there was likelihood of some sections of the public indulging in violence and lawlessness to force the closure of the shops, offices, etc. and thereby causing breach of the peace. Immediate prevention and speedy remedy was considered desirable for maintaining public peace and tranquillity. Consequently he issued a number of directions under Section 144, Criminal Procedure Code. In connection with the observance of the U. P. Bundh Day a public meeting had been arranged for the evening of April 11, 1966 in Phulatti Bazar Agra. It was to be addressed by Dr. Manohar Lohia, who arrived at Raja Mandi Railway station by the Toofan Express at 2.45 p.m. on July 11, 1966 and was arrested by the police when he came out of the railway station. The other petitioners who had come to receive Dr. Lohia, were also arrested at the same time. It was alleged that Dr. Lohia delivered an objectionable speech on the platform of the Railway Station and that objectionable slogans of various kinds were shouted by the petitioners. All these arrests were alleged to be in violation of the order of the District Magistrate, Agra. A case under Section 188, I. P. C. for the infringement of the District Magistrate's order is pending against the petitioners who have been released on execution of personal bonds.

31. The petitioners pray that Section 144, Criminal Procedure Code or that part of it which related to the disturbance of public tranquillity or a riot or affray be struck down as unconstitutional and that the petitioners be released. They prayed further that even if the case against the petitioners is withdrawn by the State the question of the constitutionality of Section 144, Criminal Procedure Code should be determined. By an amendment they have also been allowed to add the prayer that Section 188 Indian Penal Code be also declared unconstitutional.

32. I agree with my learned brother that the preliminary objection of the learned Government Advocate that the petition has become infructuous because of the release of the petitioners from Jail is untenable. The petitioners have not been restored to their liberty for they are subject to the restraint of the bonds furnished by them. The petition of Babulal Parate : 1961CriLJ16 was disposed of by the Supreme Court on merits even though the petitioner had been released on bail, vide : 1961CriLJ16 this Court held that a person remains under the control of the Court and notionally in its custody even after release on bail and could consequently present a petition for a writ of habeas corpus The mere fact that the petitioners in the present case have been released on execution of personal bonds does not create any difference. The restrictions on liberty are there whether it is a release on only a personal bond or on bail.

33. It was contended by the learned counsel for the petitioners that the powers which are exercisable under Section 144 Criminal Procedure Code are so wide that the restrictions had the effect of imposing restrictions upon the fundamental rights are unreasonable. In Babulal Parate's case : 1961CriLJ16 (Supra) the Supreme Court held that the section does not confer an arbitrary power on the Magistrate in the matter of making an order and that the power of the Magistrate under the section is not unlimited or untramelled. It is true that the judgment is to be of the Magistrate whether in the peculiar circumstances of a case an order in exercise of these powers should be made or not. But the Court was entitled to assume that power would be exercised legitimately and honestly and the section could not be struck down on the ground that the Magistrate might possibly abuse his powers. The fundamental rights guaranteed under Article 19(1) of the Constitution were subject to the restrictions placed in the subsequent clauses of Article 19 permitting reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest, among other things, of public order. The action permissible under Section 144, Criminal Procedure Code is an anticipatory action and cannot be said to be impermissible under Clauses (2) and (3) of Article 19 merely because it is anticipatory. The Supreme Court also held that the remedy of Judicial review cannot be said to be illusory. Mudholkar, J., speaking for the Supreme Court, observed; 'We would also like to point out that the penalty for infringing an order under Section 144 is that provided in Section 188 Indian Penal Code. When, therefore, a prosecution is launched thereunder, the validity of the order under Section 144 Criminal Procedure Code could be challenged.'

Mudholkar. J. further observed:

'Further since the propriety of the order is open to challenge it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrate it places unreasonable restrictions on certain fundamental rights.'

34. I agree that these observations are binding on this Court under Article 141 of the Constitution even though they may be in the nature of obiter.

35. It was also contended by the learned counsel for petitioners that the purposes for which the section authorises the imposition of restriction on the right to freedom of speech and expression and a right to assemble peaceably and without arms are not covered by Article 19(2) and (3) of the Constitution and that Section 144. Criminal Procedure Code was consequently unconstitutional. The order of the District Magistrate of Agra in the present case recited the apprehension that section of the public were likely to indulge in violence and lawlessness in order to force closure of shop offices, etc. and thereby cause breach of the peace. It also mentioned the desirability for immediate prevention and speedy remedy for maintaining public peace and tranquillity. This was thus the sole object for which the order of the District Magistrate was made. We are consequently concerned in this petition with only that part of Section 144, Criminal Procedure Code which empowered the Magistrate to issue a certain direction which he considered likely to prevent or tend to prevent disturbance of public tranquillity. There is not the slightest doubt that the various activities for the prevention of which a direction may be issued by a Magistrate under Section 144, Criminal Procedure Code are separate and distinct and consequently that part of the section which relates to a direction likely to prevent or stand to prevent disturbance of public tranquillity is clearly separable from the other part of the section. I would, therefore, agree with my learned brother that in this case it is not necessary to express any opinion on any other part of Section 144, Criminal Procedure Code.

36. I would also agree with the conclusion of my learned brother that Section 144, Criminal Procedure Code in so far as it relates to a direction which is likely to prevent or tends to prevent a disturbance of public tranquillity is not ultra vires. I would, however, hesitate to use any phrase or expression which might be taken to justify in the name of public order any unreasonable restriction on the right to freedom of speech and expression and to assemble peaceably and without arms. True, reasonable restrictions in the interest of public order have to be permitted. But it is equally true that democracy is based on the light to freedom of speech and expression. Without this elementary right democracy is bound to perish or degenerate into autocracy. Nor can it be said that a mere disturbance of the tranquillity of a great number of people amounts to a disturbance of public order.

37. Dr. Lohia in his arguments translated the word ''tranquillity' as 'kfUr and the word 'order' as O;oLFkk I would agree with him that the Hindi equivalents suggested by him give us a correct idea of the implications of the two words. We should not forget that a democracy functions in a manner entirely different from autocracy Radical progress in democracy is bound to give rise to discussions in press and on platform involving disturbance of tranquillity of a vast number of people. For instance, preparation of the people for land reforms involving the abolition of zamindari necessarily disturbed the tranquillity of great number of the people of the States of U. P. and Bihar, since it was to affect not only the Talukdars and big zamindars but also the small zamindars. But it could not be said to have disturbed public order. It cannot be denied that the people were agitated andagitation is disturbance of tranquillity, for tranquillity 'kfUr is that serenity and calmness which is bound to be disturbed and agitated when any radical reforms are about to be launched against vested interests and established views about certain state of affairs are challenged and canvassed against. Again, in an enlightened democracy tranquillity of the people may be disturbed even without speech and expression. For instance, prices of food rising with an inordinately high speed would disturb the tranquillity of the people and agitate their minds even though discussions in press and on platform may be completely curbed But really no such complete stoppage of discussion could be possible in an enlightened democracy, which works by persuasion, and after persuasion even by change of government by one party to government by another party. It would not, therefore, be correct to give the phrase 'in the interests of public order' a meaning which would abolish all canvassing of a progressive reform or criticism and discussion of action of government and consequent agitation of the mind of the people.

38. I would not, therefore, be prepared to go beyond the extent to which their Lordships of the Supreme Court have gone, and would not give to 'public order' a meaning more comprehensive than that given by them. They have themselves made a distinction between maintenance of 'law and order' and 'public order'. Mudholkar, J. observed in : 1966CriLJ608 .

'The expression 'Law and order' does not find any place in the rule and is not synonymous with 'public order'. It seems to me that 'law and order' is a comprehensive expression in which would be included not merely public order but matters such as public peace, tranquillity, orderliness in a locality or a local area and perhaps some other matters. 'Public order' is something distinct from order or orderliness in a local area.'

39. In the same case Hidayatullah. J observed at page 758

'Does the expression 'public order' take in every kind of disorders or only some of them? The answer to this serves to distinguish 'public order' from 'law and order' because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. . . '. The Supreme Court has thus refused to make 'public order' as comprehensive as 'maintenance of law and order'.

40. Relying on the observations of Hldayatullah, J. Dr. Lohia however contended that the decision in : 1966CriLJ608 (supra) in 1966, modified the earlier view of the Supreme Court that 'public order' was synonymous with public safety and tranquillity. This contention is without force. In the judgment of Hidayatullah, J. in : 1966CriLJ608 (supra), the judgment of Subba Rao, J. in : 1960CriLJ1002 , was mentioned and the specific observations of Subba Rao, J. quoted were-

'public order' is synonymous with public safety and tranquillity;. ....'. Hidayatullah, J. did not dissent from these observations in so far as the meaning of the phrase 'public order' used in Article 19(2) of the Constitution was concerned. Consequently, whatever meaning might be attached to the word 'tranquillity' standing alone, when the word 'tranquillity' is qualified by the word 'public' in Section 144, Criminal Procedure Code, we are clearly bound by the decision of the Supreme Court in : 1960CriLJ1002 (Supra) that 'public order' is synonymous with public safety and tranquillity. Hidayatullah, J. himself went on to place 'law and order' in the largest concentric circle and 'public order' in the next circle and security of State in the smallest circle and the reason for placing 'public order' in a smaller circle than that of 'law and order' was the use of the word 'public' before the word 'order'.

41. While on the one hand the necessity for the right to freedom of speech and expression and to assemble peaceably and without arms in a democracy is there, it cannot be denied that this right itself cannot be properly exercised by all without permitting a law which imposes reasonable restrictions in the interests of public order. No democracy can exist if 'public order' is freely allowed to be disturbed by a section of the citizens. That was the background in which Clauses (2) and (3) of Article 19 of the Constitution had to be amended by insertion of the words 'public order' In view of the decision of the Supreme Court equating 'public order' with 'public safety and tranquillity' the provisions in Section 144, Criminal Procedure Code for issue of directions which are likely to prevent or tend to prevent a disturbance of the public tranquallity cannot be said to be ultra vires.

42. Dr. Ram Manohar Lohia also con-tended that Section 188 Indian Penal Code itself was ultra vires. For the reasons mentioned by my learned brother and which I need not repeat I am also of the view that Section 188, Indian Penal Code is constitutional and not ultra vires.

43. I would, therefore, agree that the petition be dismissed.

BY THE BENCH

ORDER

44. We dismiss the petition.


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