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Mathai Manjooran and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1954CriLJ110
AppellantMathai Manjooran and ors.
RespondentState
Cases ReferredArithottathu Swamiar v. Chaki Mamma
Excerpt:
.....been 'illegally arrested and imprisoned' by the state for violating the following order of the district magistrate, trichur, an order which according to them is 'ultra vires' of the constitution: ii and iii was in any way incorrect or exaggerated and we are certainly not prepared to say that the district magistrate did not discharge his functions properly simply because he acted upon the report and sworn testimony of a responsible officer like an assistant superintendent of police, the veracity of whose statements he had no valid reason to suspect. no realistic attempt to define fundamental rights can hence fail to include qualifications and article 19(3) embodies the limitations on the right in question: we dare say the allegation is unfounded and we are happy that it is so for it..........been 'illegally arrested and imprisoned' by the state for violating the following order of the district magistrate, trichur, an order which according to them is 'ultra vires' of the constitution:(original in malayalam omitted.)2. the order (ex. i) is based on ex. ii, a report to the district magistrate by the assistant superintendent of police, trichur, which reads:the district action committee of the p. s. p. & k. s. p. of pudukad, trichur district, have declared their intention to march into ramanilayam palace in a big jatha on 9-8-1953 at 4 p. m. to meet the central minister, sri nanda, who is camping there on ayurvedic treatment and rest, without his permission. for this purpose they are exhorting the people daily in public meetings and making other propaganda throughout this,.....
Judgment:

M.S. Menon, J.

1. The petitioners before us are the accused in C. C. No. 1314 of 195S of the Second Class Magistrate's Court, Trichur. They invoke Article 226 of the Constitution and complain that they have been 'illegally arrested and imprisoned' by the State for violating the following order of the District Magistrate, Trichur, an order which according to them is 'ultra vires' of the Constitution:

(Original in Malayalam omitted.)

2. The order (Ex. I) is based on Ex. II, a report to the District Magistrate by the Assistant Superintendent of Police, Trichur, which reads:

The District Action Committee of the P. S. P. & K. S. P. of Pudukad, Trichur District, have declared their intention to march into Ramanilayam Palace in a big jatha on 9-8-1953 at 4 P. M. to meet the Central Minister, Sri Nanda, who is camping there on Ayurvedic treatment and rest, without his permission. For this purpose they are exhorting the people daily in public meetings and making other propaganda throughout this, District to bring a very large number of volunteers and people to this town for the above purpose. There is also a very large section of people in Trichur who are opposed to such demonstrations and forcible entry into Ramanilayam and they have determined to interfere and stop such demonstrations and jatha. The P. S. P. & K. S. P. parties have also declared that in spite of refusal by the Central Minister to meet them they will force an entry into Ramanilayam Palace brushing away or smashing any obstructions caused by any one.

In the circumstances stated above there is every likelihood of serious breach of the peace and in order to prevent such untoward happenings and breach of the peace I request that all the approach roads to Ramanilayam Palace may be prohibited for a distance of one furlong from the outer compound walls of the Ramanilayam premises for preventing entry of Jathas, processions or volunteers or other demonstrations to Ramanilayam on 9-8-1953.

The approach roads are specified below:

1. North : One the Kovilakathum Padam road east and at the Cherumukku Temple road junction.

2. South : Museum road on the Museum front, and north Fort road in a line with the Museum front.

3. South : Mithunappally road (Palace Road) at the Training College front and Court road - Zennana Mission road junction and Paliam road at the North Police Station junction,

4. West : Satram road in front of North : Police Station, 'moat' and west gate of Palace.

3. The Assistant Superintendent of Police also gave a sworn statement (Ex. III) before the District Magistrate in the following terras:

This is a report put in by me and signed by me. All that are stated therein are true and correct. The Action Committee of the P. S. P. & K. S. P. are bent upon leading a jatha consisting of very large number of people from all over the District to Ramanilayam Palace under the pretext of presenting a memorandum to the Central Minister Sri Nanda on 9-8-1953 and make unnecessary demonstrations and cause annoyance and obstruction to the public. This is strongly resented by a large section of the public here. There is every likelihood of imminent breach of peace on the occasion. Hence I request that processions and assemblies may be prohibited within a radius of one furlong from the outer walls of Ramanilayam and also the approach roads and roads round shown in the petition to avoid untoward happenings and breach of peace.

4. Exhibits II and III make it quite clear that in the absence of any legal infirmity attaching to the order of the District Magistrate, the said order is amply justified by the facts and circumstances of the case. There is an allegation in the petition that the District Magistrate in imposing the ban merely relied 'on baseless information rendered by the police'. No attempt was made before us to substantiate the averment that the information embodied in Exs. II and III was in any way incorrect or exaggerated and we are certainly not prepared to say that the District Magistrate did not discharge his functions properly simply because he acted upon the report and sworn testimony of a responsible officer like an Assistant Superintendent of Police, the veracity of whose statements he had no valid reason to suspect.

5. The only point that was urged before us was a question of law : that Section 26, Travancore-Cochin Police Act, 1951 (Act 2 of 1952) under which Ex. I was promulgated is ultra vires of the Constitution for the reason that it infringes Article 19(1)(b) of the Constitution which provides that all citizens shall have the right to 'assemble peaceably and without arms'.

6. Every democratic society has to face the clash between the claims of the individual to his freedom and of the community to a Quiet and ordered existence. No realistic attempt to define fundamental rights can hence fail to include qualifications and Article 19(3) embodies the limitations on the right in question:

Nothing in Sub-clause (b) of the said Clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

7. It has to be noted that Article 19 of the Constitution does not specifically enumerate the right to take out processions, as is done for example in Article 125 of the Constitution of the Union of Soviet Socialist Republics. There can be no doubt however that the right is implicit in the right of assembly and we propose to proceed on that basis.

8. Section 26, Travancore-Cochin Police Act, 1951, (Act 2 of 1952) empowers a District Magistrate to prohibit a procession or public assembly in the following terms:

The District Magistrate may, by order in-writing, prohibit any procession or public assembly, whenever and for so, long as he considers such prohibition to be necessary for the preservation of the public peace or public safety;

Provided that no such prohibition shall remain in force for more than fifteen days without the sanction of the Government.

and the main argument on behalf of the petitioners is that as under Article 19(3) only 'reasonable restrictions on the exercise of the right' can be imposed, the power to 'prohibit' embodied in the section is 'ultra vires' of the Constitution. According to them a power to impose restrictions is a power to regulate the exercise of a right and a power to prohibit is an abrogation of the right itself and they sought to support the contention by a reference to - 'Gopalan v. The State of Madras' : 1950CriLJ1383 . That decision is no authority for such a general proposition & we are not prepared to agree that 'Reasonable restrictions in a given case cannot amount to a total prohibition of the exercise of the right so long as the prohibition is strictly circumscribed in time and. operative area to suit the exigencies of definite threats to public order. That is the type of prohibition contemplated by Section 26 of the Travancore-Cochin Police Act, 1951, (Act 2 of 1952) and we hold that the section is 'intra vires' of the Constitution.

9. The view that we have expressed is not anything new in this Court. In - 'Arithottathu Swamiar v. Chaki Mamma' AIR 1952 Trav-C 347 (B) a Judge of this Court has already held that 'reasonable restrictions' in appropriate cases can amount to a complete stoppage or prohibition.

10. We find a statement in the petition to the effect that the petitioners were not 'given sufficient facilities' to move this Court 'in time to prevent the continuation of their illegal imprisonment'. This point was not raised at the Bar and no attempt was made to substantiate the allegation. We dare say the allegation is unfounded and we are happy that it is so for it will be a very serious matter indeed if access to this Court has been any way denied or delayed.

11. The prayer for a withdrawal of the case to this Court under Article 228 of the Constitution was not pressed by the petitioners.

12. During the course of the argument we informed the petitioners that we were prepared, if they so desired, to enlarge them on bail on their own bonds and the State apparently had no objection to such a course. The petitioners, however, submitted that they would rather continue in custody as they were fighting for a principle and what they were really interested in was an adjudication on the merits.

In the right of what is stated above we dismiss the petition.


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