1. The applicant, Sham Sunder Lal, has been convicted by a Magistrate of the First Class of an offence under Section 32 of the Police Act V of 1861 and sentenced to a fine of Rs. 200. An application in revision was made to the Sessions Judge and has been rejected. The applicant comes up before this Court in further revision.
2. The facts of the case are briefly as follows: There is a mala held every year at a village called Daranager, 7 miles from Bijnor. Last year this mela was held from the 8th of November. The District Magistrate issued orders to the police that a certain schedule of tolls for the admission of animals and carriages into the mela ground had been fixed. Various toll-gates were set up for the collection of these tolls and at the gate in question in this case a District Board schoolmaster was put to receive the tolls. The applicant, when asked by this official to pay the toll for the bullock tonga in which he was seated refused to pay it and entered into argument with the toll-collector. The police constable on duty ordered the applicant to pay the tax or go back, an order which was disobeyed by the applicant, who remained arguing and, it is said, forced his way into the mela grounds. He was accordingly arrested and taken to a Deputy Magistrate on duty at the fair. The contention of the applicant is that the District Magistrate had no power to impose the toll required from him and that consequently the constable on duty had no right to direct the applicant either to pay the toll or go back.
3. Section 31 of the Police Act prescribes that 'it is the duty of the police to keep order at places of public resort and to prevent obstructions on the occasions of assemblies... and in any case when any road, street, thoroughfare, ghat or landing-place may be thronged or may be liable to be obstructed.' Section 32 makes a person liable to conviction for opposing or not obeying an order issued under Section 31. It is clear that an order issued under Section 31 may be an oral order by a police constable issued during the control of the public at any place of public resort. The only question, therefore that arises in this case is whether the constable was entitled to direct the applicant to pay the toll or to turn back. It is contended on behalf of the applicant that the constable was not entitled to do this because it has not bean proved that the Magistrate was entitled to impose the toll. On the other hand there is a presumption in favour of any order of an official being legal until the contrary is proved. In this case it has not been shown that the road was a public thoroughfare. The probability is that the road on which the toll 'barrier was set up was a temporary road made on the zamindar's land for the passage of visitors to the mela. The applicant failed to prove that he had a right, by any dedication of the surface of the road to the public, to use this road. It cannot be denied that if this road is the property of the zamindars they could make the granting of a license to use any portion of it or to enter on to their lands, conditional on the payment of a toll. It is possible that the collector may have been granted actually or impliedly the right to collect such a toll. It is common ground that tolls had been collected for many years, a fact which would justify an inference of a grant to collect the tolls. It is therefore possible that the District Magistrate had a right to collect the toll and as a presumption must be made that any action taken by him was lawful, and this presumption has not been met, it must be held for the purposes of this case that the imposition of the toll by the Magistrate was lawful. From this point of view it is clear that the police constable was in order in telling the applicant to pay the toll or turn back. He could not direct the collector to give way and let the applicant proceed on his way if the toll-collector was acting lawfully.
4. Even however if it could be proved that the District Magistrate had no authority to impose the toll, it does not follow that the order of the police constable on duty was not a legal order under Section 31, Police Act. This constable was given power to prevent obstruction at this place of public resort. The situation was that the applicant was being prevented entry by the tax-collector or at least that his entry was being formally objected to. The police constable was bound either to tell the toll-collector to make way or to issue the order that he did to the applicant. The police constable was entitled to assume that the toll-collector being there carrying out the orders of the District Magistrate was acting rightfully. It was not for him to go into the merits of the question. The order to the applicant to pay the toll or turn back was obviously in the circumstances a more correct order than an order to the tax-collector to allow the applicant to proceed.
5. For the above reasons I am of the opinion that the order given by the constable on duty under Section 31 was a lawful order and that the opposing or disobedience of that order by the applicant made the applicant liable to conviction under Section 32, Police Act.
6. It has been urged in this case, and in the other cases covered by the revisional order of the Sessions Judge, that the sentences are excessive. There are nine such cases. IN eight of them the sentence has been the maximum fine of Rs. 200. It is clear that the action of the applicants in protesting at the toll barrier against their being stopped was deliberately taken in order to call in question the legality of the District Magistrate in imposing the toll. The applicant in the present case is the son of the Chairman of the District Board and in the course of argument of the case it has been made clear that there was a definite party of the District Board in opposition to the Magistrate in the matter of imposing this toll. The Magistrate has pointed out rightly that it was not a fit place or opportunity for the accused to make a protest against the imposition of the toll. Such a protest and this consequent disturbance in the middle of mela might have had dangerous results to the public. I see no reason in reducing the sentence. This application is therefore rejected. This same order will apply to the other eight cases in revision as all these cases have been argued by one counsel and no point of difference has been made between them.