1. Reference should be made to my order dated 15th October last. At that time I was impressed by the point made by the District Magistrate that the notifications of 1872 and 1877 were not rescinded by the Municipal Board of Moradabad which cancelled all its bye-laws relating to religious processions in 1927. The Superintendent of Police of Moradabad issued an order under Section 30, Act 5 of 1861, during the Holi of this year on 3rd March 1928 that no crowds attended by music shall pass within the inhabited parts of the city. There is a finding of fact that the large number of applicants whose case is before me in revision did pass through a locality in the Moradabad City known as katghar during the Holi in a procession accompanied with music. The applicants have been convicted and fined under Section 188, I.P.C. for disobeying an order promulgated by a public servant lawfully empowered to promulgate such order. The lawful authority of the Superintendent of Police in Moradabad to issue the notification of 3rd March 1928 is impugned here. There are two questions for decision: (1) Whether the officer was so empowered under Section 30, Police Act, and (2) whether he was so empowered by a notification of Government dated 18th May 1877. The District Magistrate was of opinion that prohibition of music was covered by the authority given to the District Superintendent of Police under Section 30, Police Act, to regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies. I do not agree with the District Magistrate that a prohibition of every kind of music would be covered by the word 'regulate.' A power to regulate is given as regards some matter which is in existence, and it would be a misnomer to direct regulation of a thing that does not exist. Regulation of traffic, for instance, assumes the existence of traffic. That would not empower the police to confine every citizen to his house and prohibit all traffic. Under Section 31, Police Act, the police are empowered to keep order on public roads and in the public streets, thoroughfares, ghats and landing places and at all other places of public resort. In Benares in pursuance of this authority an order was issued that a certain class of people, the Jatrawalas, that is, people who take charge of pilgrims to the sacred city, were prohibited from visiting a railway station. In that case a learned Judge of this Court held that it was not competent to the Superintendent of Police to issue a general order forbidding persons of a certain class to frequent certain specified places on the strength of his authority to keep order in a public place. The reasoning was the same as here: Emperor v. Krishna Lal  39 All. 131. The keeping of order did not imply the confining of people to their own houses so that no need may arise for the keeping of order.
2. I have studied the notifications. As already observed, the District Magistrate was of opinion that a notification of 27th May 1927(U.P. Gazette of 4th June 1927, Part 3. Section 202) did not cancel the Government Notification of 1877. The Government Notification merely sanctioned rules framed by the Municipality, and the Municipality was entitled to cancel those rules with the sanction of the Local Government. The power of sanction has been delegated by the Local Government to the Commissioner, and the Municipal rules of 1877 were duly cancelled with the necessary sanction on 27th May 1927. There is no Government notification independently of the Municipal rules. The District Magistrate refers to a Government order accompanying the notification of 27th November 1872. That Government order gave expression merely to a pious hope that such an arrangement would be perpetually maintained by the Municipality. The Municipality, however, chose to do away with the arrangement, and the authority which issued the Government order sanctioned the cancellation of the arrangement. There is, therefore, no power left with the Superintendent of Police of Moradabad to deal with music in streets during festival and ceremonies independently of the authority given to him under Section 30(4), Police Act. I accept the reference of the learned Sessions Judge, set aside the conviction and sentence, and order the fine, if any recovered, to be refunded.