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Bedi Gurcharan Singh and ors. Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1975CriLJ917
AppellantBedi Gurcharan Singh and ors.
RespondentState of Haryana and ors.
Cases ReferredAdvancement of Colored People v. Button
Excerpt:
.....on public street, cannot be held to be valid. 438. 5. that case is clearly distinguishable from the case in hand. 7. it is admitted in the petition ,that arrests under section 107/151. criminal procedure code, were made of the organisers of akali meetings on bawan dwadshi fair days which clearly shows that the judgment of the district magistrate that there was apprehension of breach of peace if a dewan was permitted to be held by the sikhs at the site was not j without basis......the celebration is conducted with much pomp and ceremony.the same description is given of the bawan dwadshi mela at case 45 of the ambala district. gazetteer 1923-24 (1925 edition). on the same page of the gazetteer the following description is given of pir lakhi shah or the pankha fair:the pankha fair is held in the month of 'ra.iab'. i. e.. two months before the id, the fair is held in honour of pir lakhi shah, whose tomb stands in the grain market at ambala. fans tastefully decorated are offered and hence the name of -the fair. the saint is said to have flourished in the time of qutab-ud-din aibak. sultan of delhi. some think that lakhi shah is no other than qutab-ud^din aibak himself. the fair is attended mostlv toy local people. it has recently gained importance among local.....
Judgment:

Bal Raj Tuli, J.

1. Sanatanist Hindus Celebrate Bawan Dwadshi Mela at Ambala in the area of Anai Mandi every vear in the month of August or September. In the Punjab Gazeteer. Volume VII. Part A 1923-24 (1925 Edition), the mention is made of this Mela in the following words: -

It is held in the month of Bhadon. The images of the gods of the Hindu Pantheology from all the mandirs in Ambala are brought out in procession to the Grain Market and from there carried in procession to Naurane Rai's tank opposite the Civil Hospital buildings. The celebration is conducted with much pomp and ceremony.

The same description is given of the Bawan Dwadshi Mela at case 45 of the Ambala District. Gazetteer 1923-24 (1925 Edition). On the same page of the Gazetteer the following description is given of Pir Lakhi Shah or the Pankha fair:

The pankha fair is held in the month of 'Ra.iab'. i. e.. two months before the Id, The fair is held in honour of Pir Lakhi Shah, whose tomb stands in the Grain Market at Ambala. Fans tastefully decorated are offered and hence the name of -the fair. The saint is said to have flourished in the time of Qutab-Ud-Din Aibak. Sultan of Delhi. Some think that Lakhi Shah is no other than Qutab-Ud^Din Aibak himself. The fair is attended mostlv toy local people. It has recently gained importance among local Muhammadans probably to keep pace with the Hindus who are yearly adding to the zeal with which they celebrate the Bawan Dwadshi fair.

Before the .partition of the country, the the Muslims as a communitv outnumbered the Hindus in the district of Ambala and the Hindus and the Sikhs ioined hands for celebrating the fastival of Bawan Dwadshi mainly with a view to withstand the pressure from the Muslims who. on various occasions, tried to indulee in acts of violence in order to disrupt the celebrations. After the partition of the country, the Muslims migrated to Pakistan and a Sikh Gurdwara was set up at the place where the tom'b of Pir Lakhi Shah existed.

2. It has been stated in the writ petition that the organisation, to which the appellants belong, felt concerned about the manner in which many of the persons participating in the celebrations at the time of Bawan Dwadshi fair conducted themselves. . There were unruly scenes and the people indulged in acts of violence and there were many a time drunken bouts. The aopellants' organisation, under the circumstances, endeavoured to utilise 'the occasion of the fair to hold dewan in the area outside the Gurdwara tq propagate the aspects of spiritual and social reforms to bring about the desired effect of reforming the people who gathered there. Since 1956, religious and cultural dewans outside the Gurdwara were organised without anv untoward incident. In 1959. however, the appellants' organisation was refused the licence to hold such dewans and that refusal was repeated every vear when an application for a licence was made. The appellants felt aggrieved bv continuous refusal of the respondents to grant them the necessary licence to hold the dewan and in order to establish their right to * hold the dewan without any licence, they filed C. W. 3254 of 1971 which was dismissed bv the learned Single Judge on May 7. 1973. Thisi a.opeal under Clause 10 of the Letters Patent has been filed against that judgment.

3. The licence to hold the dewan at the place was required under Section 30 of the Police Act. 1861' (hereinafter referred to as the Act). The appellants were also refused permission to use loudspeaker under the Punjab Instruments (Control of Noises) Act. 1956. Section 30 of the Act is in the following words:

30. Regulation of public assemblies and processions and licensing of same. The District Superintendent or Assistant District Superintendent of Police mav, as occasion requires, direct the conduct of all assemblies and processions on the public roads or in the public streets or thoroughfares, and prescribe the routes by which and the time, at which, such processions mav pass.

(2) He mav also, on beinf satisfied ' that it is intended by anv person or class of persons to convene or collect an, assembly in anv such road, street or thoroughfare, or to form a procession which would, in the judgment of the Magistrate of the district, or of the subdivision of a district, if uncontrolled, be likelv to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall applv for a licence.

(3) On such application beins made, he may issue a licence specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section:

Provided that no fee shall be charged on the application for. or grant of. anv such licence,(4) He mav also regulate the extent to which music mav be used in the streets on the occasion of festivals and ceremonies.

From this section it is clear that the licence to. hold an assembly is required only if such an assembly is to be held on the public road or in the public street or thoroughfare. If the place at which the assembly is intended to be held is neither a road nor a public street nor a thoroughfare. Section 30 of the Act will not apply and there will be no necessity of obtaining the licence from the District Magistrate. The case of the appellant is that ' the place where the Dewan is proposed to be held is neither a road nor a public street nor a thoroughfare but is a public place where the people have the right to assemble. The case of the respondents, on the other hand, is that that place is a thoroughfare and, therefore, a licence is necessary to be obtained before holding the dewan under Section 30 of the Act-In view of the conflicting assertions with regard to the nature of the place, the learned Single Judge observed that this disputed question of fact would be better decided by a Civil Court after taking evidence. It was conceded before the learned Judge bv the respondents that Section 30 of the Act would only applv if the place is held to be a road, or a ;public street or a thoroughfare. Apart from the pleadings of the parties, there is no other material on the record to come tq a definite finding whether the place is or is not a thoroughfare. The respondents do not claim it to be either a road or a public street, their plea is that this place is a thoroughfare. The appellants along with their writ petition annexed a plan of the site which shows that Anai Mandi is a circular area divided into four sectors. 'The sector where the Gurdwara has been established contains many shops and the vacant space is much less than in the opposite sector where the Bawan Dwadshi fair is held. It is the admitted case of the parties that the sector wherein 'the Bawan Dwadshi fair is held is generally used1 for holding public meetings and there is a flag-ipost flying Congress flag. It is also admitted that political meetings have been held at this place many a time .ard still continue to be held. There is no dispute, therefore, that the place where the Bawan Dwadshi fair is held is a public place whereas the same cannot be said, by looking at the plan, about the place where the Gurdwara now exists. We, therefore, agree with the learned Judge that this matter should be decided in a regular suit after taking full evidence particularly because the decision will be of a far-reachina importance and will determine whether anv licence haa to be obtained for holding anv assemblv at that place in future or not. The uncertainly about this matter will thus be eliminated for ever.

4. Another point that has been argued before us is the constitutional validity of Section 30 of the Act. It is submitted that arbitrary power has been given to the Superintendent of Police of the Assistant Superintendent of Police and the District Magistrate or the Sub Divisional Magistrate to grant or not to grant the licence for holding assemblies* at the places mentioned in the section. Reliance is placed on Himat Lai K. Shah v. Commr. of Police, Ahmedabad : [1973]2SCR266 wherein Rule 7 framed bv the Commissioner of Police under Section 33(1)(o) of the Bombay Police Act, 1951. was struck down on the ground that it afforded no guidance and gave arbitrary power to the Commissioner of Police. Section 33(1)(o) of the Bombay Police Act, 1951, provides:

33 (1) The Commissioner and the District Magistrate, in areas under their respective charges or anv part thereof, may make, alter or rescind rules or orders not inconsistent with this Act for;

** ** ** **(o) regulating the conduct of and behaviour or action of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes bv which, the order in which and the times at which the same mav pass.

Rule 7 framed under that section bv the Commissioner of Police reads as under :

7. No public meeting with or without loudspeaker, shall be held on the public street within the jurisdiction of the Commissioner of Police, Ahmedabad City, unless the necessary permission in writing has been obtained from the officer authorised) by the Commissioner of Police.

It was observed that Section 33(1)(o)

authorises the making of rule for 'regulating' the conduct, behaviour or action of the persons who are members thereof. Rule 7 impliedlv gives power to the Commissioner to refuse permission to hold a T>ublic meeting and, when a meeting is prohibited, there is no question of regulating the conduct, behaviour or action of persons constituting assembily, as exhypothesis, no assembly has been constituted. The sub-section does not authorise framing of rules to regulate the conduct, behaviour or action of persona before an assembly is constituted.

It was further observedi that freedom of assembly is an essential element of any democratic system and the framerg of the Constitution of India were aware that public meetings were being held in pub-lice streets and that the public had come to regard it as part of their rights and privileges as citizens, The conferment of a fundamental right of public assembly would have been an exercise in futility.' if the Government and the local authorities could legally close all the normal places, where alone the vast maioritv of the people couldl exercise the right. If there ig a fundamental right to hold public meeting in a public street, then a rule like Rule 7, which gives an unguided discretion, practically dependant upon the subjective whim of an authority to grant or refuse permission to hold a public meeting on public street, cannot be held to be valid. There is no mention in the rule of the reasons for which an application for licence can be rejected. 'Broad proohvlactic rules in the area of free expression and assembly are suspect. Precision of regulation must be the touchstone in an area so closelv touching our precious freedoms', as observed in National Association for the Advancement of Colored People v. Button (1963) 371 US 415 at P. 438.

5. That case is clearly distinguishable from the case in hand. Section 30 of the Act does not give an absolute or unguided power to the District Superintendent or the Assistant District Superinr tendent of Police or the Magistrate of the district or the sub division to grant or not to grant the licence for holding a meeting at a thoroughfare. That power can be exercised only if. in the iudgment of the Magistrate of the district or a sub division of a district, the collection of an assembly, if uncontrolled, would be likely to cause a breach of the peace and in no other circumstances. The section cannot therefore, be struck down on the ground that it gives unguided or arbitrary power to the authorities mentioned therein for regulating the conduct and collection of assemblies in a thoroughfare. In case any authority passes an order which is not in accordance with the provisions of the section, that order will foe liable to be struck down but there is no reason to strike down the section as-it is. The submission of the learned counsel is, therefore, repelled.

6. Shri Hardev Singh, the learned counsel for the appellants, has then strenuously argued that the appellants-have a fundamental right under Article 19(1) (a) and (b) and Article 25 of the Constitution of India to freedom of' speech and expression, to assemble peaceably and without arms at any place and to freely profess, practise and propagate their religion. This right ig not unfettered and absolute. According to Article 19 (2) and (3). reasonable restrictions can be imposed on the exercise of the riaht to freedom of speech and expression and to assemble peaceably and without arms in the interest of public order. Similarly, the freedom of conscience and the right freely to profess, practice and propagate religion is subject to public order. If such a freedom endangers public order, the authorities will be within their rights to restrict that right. The appellants have filed copies of two orders passed bv the District Magistrate. Ambala. in 1963. One of the orders (cor/v Annexure 'G') recites that it had come to his notice that the rival parties intended to hold public meetings and processions on public roads. streets and thoroughfares in the area of Anaj Mandi (Grain 'Market1) on the occasion of Bawan Dwadshi fair from 29-8-1963 to 31-8-1963. and on account of the intended meetings and processions of the rival parties there Was likelihood of the breach of the peace in case the meetings and processions were not properly regulated and controlled. He. therefore, directed that all persons who intended to organise such meetings or processions should apply for licence as reauired under Section 30(2) of the Act before holding such meetings qr processions. Anv such meeting or profession without licence would beconsiderea'unlawful and action would be taken in accordance with the provisions of law. Shri Mohan Singh Lamba, appellant filed an application requesting for a licence to hold a dewan on Bawan Dwadshi fair days outside Sri Guru Singh Sabha Northern Maidan. That application was refused on the ground that the agreement referred to in the-application with the Sanatan Dharam Sabha. Ambala City, had been withdrawn by that organisation; the application, bv implication admitted that the customary right of holding the Bawan Dwadshi Mela in Anai Mandi area vested in the Sanatan Dharam Sabha, Ambala City, alone and, in view of the .prevailing tension between Hindu and Sikh Communities in Ambala City, and 'to prevent anv conseauent breach of peace, he regretted his inability to issue a licence for holding anv dewan in the Anai Mandi area, Ambala City, on the Bawan Dwadshi fair from 29th tq, 31st August, 1963. The applicant wag, however, permitted to hold such a dewan anywhere else so that there was no danger of breach of peace. Similar reply was given to Shri Kartar Singh Tak-kar appellant who applied for the licence to hold a dewan from August 29 to Aueust 31. 1963. the dates on which the Bawan Dwadshi fair was to be held. For the subsequent vearg also, the permission to hold the dewan and to use loudspeakers on the days of Bawan . Dwadshi fair was refused. It is thus clear that the particular reason stated bv the District Magistrate for refusing the licence was that there was apprehension of breach of neace if the Sikhs were allowed to hold a dewan on the Bawan Dwadshi fair days at the site in front of the Gurdwara which was close to the site on which that fair was to be held. It has also been stated in the - written statement filed bv the District Magistrate in replv to the writ petition that no other Gurdwara in the entire States of Puniab and Haryana ever held such a dewan on Bawan Dwadshi fair days at anv place whatsoever which shows that there is no particular sanctitv of Bawan Dwadshi fair in the minds of the Sikh community. If they intend to honour the Bawan avtar, they can ioin the Hindus in their celebrations as before the partition of the country. It has also to be remembered that Gurdwara Singh Sabha was established in Anai Mandi after the partition of the countrv at the site where the tomb of Pir Lakhi Shah existed. It has no particular historical significance and in the citv of Ambala there are historical Gurdwaras. the management of which never thought of obserying Bawan Dwadshi festival.

7. It is admitted in the petition , that arrests under Section 107/151. Criminal Procedure Code, were made of the organisers of Akali meetings on Bawan Dwadshi fair days which clearly shows that the judgment of the District Magistrate that there was apprehension of breach of peace if a dewan was permitted to be held by the Sikhs at the site was not j without basis. The awpellants or their organisation which runs hundreds of Gurdwaras in the States of Puniab and Har-lyana have never organised such a dewan on anv other dav even outside Gurdwara Singh Sabha in Anai Mandi. The right freeW to propagate religion is subject to the condition that it does not violate similar fundamental rights of the followers of other religions. It cannot be said that anv person has the right to address a congregation of another religion in order to propagate his own. if it is likelv to be resented by the congregation and which may lead to the breach of peace. Such a fundamental right has to be exercised as a member of the society so that a similar right of the ther members of the society is not vielated. We, therefore, do not find any merit in the wbmikstan of ifce learned c*ansel that by prohibiting the appellants from holding the dewan on the particular days of Bawan Dwadshi fair in any way violates the fundamental rights of the appellants guaranteed under Articles 19 and 25 of I the Constitution.

8. For the reasons given above we find no merit in this petition which is dismissed with costs.

Pritam Singh Pattar, J.

9. I agree.


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