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Public Prosecutor Vs. K.G. Sivaswamy and anr - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Appeal No. 896 of 1951
Judge
Reported inAIR1954Mad249; (1953)2MLJ602
ActsPolice Act, 1861 - Sections 30, 30(1), 30(2) and 30(3)
AppellantPublic Prosecutor
RespondentK.G. Sivaswamy and anr.
Appellant AdvocateParty in person
Respondent AdvocateC.R. Pattabhiraman, Adv.
DispositionAppeal dismissed
Cases ReferredEmperor v. Shama Kandu
Excerpt:
police act (v of 1861) (sic) (1) and (2)--scope of--'thorough--fare', the (sic) occasion requires', meaning of-- power of police officer (sic) general prohibitory order for particular period.;section 30 of the police act (v of 1861) gives the superintendent of police (district or assistant) power to direct the conduct of assemblies and processions in certain circumstances. the assemblies or processions which he seeks to control must be on public roads or on public steerts or thoroughfares. a place where the public merely congregate is not a thoroughfare. the essential idea of a thoroughfare is the right of the public to pass and re-pass over it. a place to which the public are merely entitled to go and over which they have no right of way is not a thoroughfare. the exercise of his power.....1.the workmen employed in the mills in koilpatti appear to be split into warring factions that have scant regard to law or the public peace. the blackshirts also seem to have been adding in their own way to the difficulties of local officials. on 31-12-1950 the assistant superintendent of police, sankarankoil, wrote to the assistant collector, tuticorin, (he is the executive sub divisional magistrate of the area) giving a resume of the situation from 1948. he remarked :"now, both in the labour front and in the political front trouble is brewing ...... the situation is full of explosive possibilities and breach of the peace is inherent in it."after this appraisal of the situation he ended his letter in the following manner:"under the circumstances i consider it necessary to regulate the.....
Judgment:
1.The workmen employed in the mills in Koilpatti appear to be split into warring factions that have scant regard to law or the public peace. The Blackshirts also seem to have been adding in their own way to the difficulties of local officials. On 31-12-1950 the Assistant Superintendent of Police, Sankarankoil, wrote to the Assistant Collector, Tuticorin, (he is the Executive Sub Divisional Magistrate of the area) giving a resume of the situation from 1948. He remarked :

"Now, both in the labour front and in the political front trouble is brewing ...... The situation is full of explosive possibilities and breach of the peace is inherent in it."

After this appraisal of the situation he ended his letter in the following manner:

"Under the circumstances I consider it necessary to regulate the conduct of meetings and processions by enforcement of Section 30, Police Act. I, therefore, propose to apply Section 30, Police Act, within the limits of Koilpatti town and Koilpatti Panchayat Board, for one year from 10-1-1951 and request your concurrence."

2. Sometime in February -- the date does not appear in the document before me -- the Assistant Collector, Tuticorin, replied to the Assistant Superintendent as follows:

"Your suggestion to enforce Section 30, Police Act, 5 of 1361, for one year within, the limits of Koilpatti town is accepted."

On 5-3-1951 the Assistant Superintendent of Police, Sankarankoil, issued an order in which he stated that rival groups exist among the labourers in Koilpatti, that subsequent to 1949 various instances involving a breach of the peace had occurred, that serious disputes still exist and that in the judgment of the Executive First Class Magistrate, Tuticotin, meetings, assemblies; processions and the like within the limits of Koilpatti town and Panchayat Board and in villages within a radius of three miles from Koilpatti Panchayat Board area are likely to cause serious breaches of the peace if not controlled by the police. He then recorded his view :

"I am satisfied that it is intended by the office bearers, members, adherents and sympathisers of the above said groups and members of the public in general, in Koilpatti town and Panchayat Board, to convene or collect assemblies and organise and conduct processions and the like in public places, streets, roads and thoroughfares within the limits of Koilpatti town and Panchayat Board."

After that he passed this order :

"The other office bearers, members, adherents and sympathisers of the groups and organisation named, as well as those of other groups and associations and the members of the public in general who intend to convene and collect assemblies, organise and conduct pro-cessions and the like, to apply for a licence, to the Assistant Superintendent of Police, San-karankoil, for such meetings, assemblies and processions and the like within the above-said limits, under Section 30, Police Act, 5 of 1861, for a period of one year with effect from 15-3-1951. Any disobedience of orders will render persons liable for punishment under Section 188, I. P. C. and other provisions of the law."

This order was addressed to twenty-one named individuals who were said to belong to the I. N. T. U. C. group employed in the Loyal Mills, to ten individuals said to belong to S. R. V. group employed in the same Mills; to nine individuals said to belong to other Labour groups; to nine individuals who were said to belong to the Blackshirts party and to eleven individuals, said to belong to the Socialist party. In other words, it was a special order so far as the individuals specified in the order are concerned and a general order as regards the rest of the public.

3. At about 7-30 p. m. on 19-3-1951 two persons named Sivasamy and Ponniah, who are said to be members of the Socialist Party, convened a meeting in Gandhi Maidan, Koilpatti, without applying for and obtaining a licence from the Assistant Superintendent of Police, Sankarankoil, to hold their meeting. Ponniah addressed the gathering introducing Sivaswami to the audience and Sivasami addressed them. The Circle Inspector of Police, Koilpatti, went to the meeting and informed both the accused of the ban that had been imposed on the meeting and asked them not to proceed with it. Sivasami took the line that the prohibitory order was illegal and tried to go on with the meeting. Thereupon the Inspector arrested both Sivasami and Ponniah & subsequently laid a charge-sheet against them under Section 32, Police Act.

The Sub-Magistrate, Koilpatti, acquitted both the accused holding:

"In the result, I find firstly that the order Ex. P, 2 is itself 'ultra vires' the Assistant Superintendent & hence not enforceable & secondly that even if it be assumed that the order is legal, the manner of its execution was :imporpep and that the order does not apply to a place-like the Gandhi Maidan which is not a thoroughfare. Ir" either case it follows that the accused are -not guilty of the offence with which they stand charged, and I therefore acquit them under Section 245(1) Cr. P. C."

Against this order of acquittal the State has preferred an appeal.

Section 30, Police Act (5 of 1861) enacts: "

1. The District superintendent or Assistant District Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, & prescribe the routes by which, and the times at which such Processions may pass.

2". He may also, on being satisfied that it is intended by any person or class of persons to convene or collect an assembly ; in any such road, street or thoroughfare or to form a procession which would, in the judgment of the Magistrate of the district, or of the sub division of a district, if uncontrolled, be likely 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 apply for a licence.

3. On such application being 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 & otherwise giving effect to this section; provided that no fee shall be charged on the application for, or grant of, any such licence.

4. He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies."

4. In one or two respects the section is not as clear as it might be. Nevertheless when it is carefully read certain points are seen to stand out. The first sub-section gives the Superintendent of Police (District or Assistant) power to direct the conduct of assemblies and processions in certain circumstances. Two modes--these of course are not exhaustive -- in which this power may be exercised are indicated in the sub-section itself. They are the power to prescribe the routes of processions and the power to prescribe the times at which processions may pass. Thus the Superintendent may direct that processions must move along certain routes and streets which means that he may direct that they shall not pass along other routes or streets. The Superintendent may also direct that the processions shall start and end at the time he may prescribe which, in its turn, implies that the processions cannot- be taken out at other times. These and the other powers relating to the conduct of assemblies and processions may be exercised "as occasion requires."

Familiar examples of such occasions are furnished by our religious festivals and celebrations, Sri Ramanavami, Vijayadasami, Ramzan Bakrid, Easter, Christmas. The occasions on which these powers may be execrised need not however be religious. They may be political, as for instance an election, or economic, as tot instance a lockout or a strike. They may be social, as for instance, the visit of a noted personality. In fact, the occasion may be anything; it may arise anyhow, it may arise at any time, it may be of varying duration, but nevertheless it must be an occasion.

5. The learned Public Prosecutor argued that the word 'occasion' would cover a situation where local parties are at war. The argument is only partly right. I have no doubt that when some incident or other has brought factious feeling to a boil, the situation may be described as an "occasion". But, I am reluctant to endorse the view that the mere existence of factions and the coming into being of a protracted state of what may be called cold war between factions would be an "occasion" within the meaning of the sub-section, when the cold war becomes or threatens to become a hot war that would certainly be an "occasion". But something which happens every day is certainly not an "occasion" unless of course a storm gathers everyday and, Sub-section (1) is not intended to control every day conduct.

6. That is not the only limitation imposed on the Superintendent by this sub-section. The assemblies or processions which he seeks to control must be on public roads or in public streets or thoroughfares. The learned Public Prosecutor argued that a place where the public congregate is a thoroughfare. I am unable to agree. The essential idea of a thoroughfare is the right of the public to pass and repass over it. A place to which the public are merely entitled to go and over which they have no right of way is not a thoroughfare. When a Court is sitting the court hall and its precincts would be a public place in the sense that the public have a right to go there and usually do go there, but a court hall is not a thoroughfare. The marina including the carriageway and the foot paths are thoroughfares, but the sands where people congregate to take the air or to relax or to amuse themselves, though a public place, cannot be said to be a thoroughfare. Of course, there may be thoroughfares across a public place, but nevertheless a thoroughfare is essentially different from a public place. No authority beyond a standard dictionary would seem to be required for saying that every public place is not a thoroughfare and that the essential idea of a thoroughfare is the right of passage and repassage.

In the Concise Oxford Dictionary this meaning is given to the word "thoroughfare" road, street, especially one through which much traffic passes. I would refer the more punctilious to -- 'R. N. Basu v. Emperor', AIR 1933 All 612 (A), where it was held that a park was not a thoroughfare, and, to -- 'Antarjami Mohanty v. State of Orissa', (B), where it was held "every public place will not necessarily become a thoroughfare unless that place is used as a passage for people to pass through". Of course in order to constitute a thoroughfare it is not essential that the public should have a right to ride or drive over it, it is enough if they have a right to walk across but the right to pass and repass is essential.

7. The second and third sub-sections of Section 30 confer on the Superintendent powers of closer control over assemblies and processions. He may, subject to the conditions laid down in them require those who convene an assembly or take out a procession to obtain a licence-from him. In that licence he may lay down detailed conditions for the conduct of the assembly or procession. He may, for instance, insist that nobody in the assembly or procession should carry arms or lethal weapons. He may prohibit the shouting of war cries or slogans or the carrying of banners that may provoke violence. So long as the conditions imposed are 'bona fide' and fairly calculated to attain the purpose of preserving law and order and are not arbitrary or capricious, the Superintendent has an ample measure of discretion in the matter.

8. However, the exercise of his power is subject to certain" limitations;

1. The place where it is intended to convene or collect an assembly must be a public road, public street or thoroughfare. That is made clear by the use of the word "such" in the second sub-section.

2. The assembly must be such that it would "in the judgment of the Magistrate of the district, or of the sub-division of a district, if Uncontrolled, be likely to cause a breach of the peace". This means that the District Magistrate or the Sub-Divisional Magistrate must apply his mind to the matter and he must reach the conclusion that the assembly or procession, if uncontrolled, is likely to cause a breach of the peace. It will be noticed that the word used in the sub-section is "judgment" and not "apprehend" or "reason to apprehend". The word "judgment" has a firmer connotation and requires that the Magistrate of the district or subdivision must have applied his mind to the matter and come to the considered conclusion that the assembly or procession if uncontrolled is likely to cause a breach of the peace.

I may state at this point that there was some discussion over the question whether in Sub-section (2) of the clause "which would, In the judgment of the Magistrate of the District, or of the subdivision of a district, if uncontrolled, be likely to cause a breach of the peace" governs only the word "procession" occurring immediately before it or whether it also qualifies the word "assembly" occurring a little earlier. I am clear in my mind that the clause qualifies both the word "procession" and the word "assembly". And that is for two reasons. If the draftsman had intended that the clause should qualify only the word "procession" I would expect him to have cast the sub-section in the following manner: he may also on being satisfied that it is intended by any person or class of persons' to form a procession which would, in the judgment of the Magistrate of the district, or of the sub-division of a district, if uncontrolled be likely to cause a breach of the peace or to convene or collect an assembly in any such road, street or thoroughfare etc. I have had some opportunity of familiarising myself with -the technique of legislative drafting and employing the words actually occurring in Sub-section (2) of Section 30. I have no doubt that an ordinary draftsman would, if the intention had been that only the word "procession" should be qualified by the clause, have arranged the words in the manner I have indicated above.

The argument based on drafting technique apart, the very purpose of the sub-section is to confer on the police powers to avert breaches of the peace. If the assembly is not of a kind that is likely to produce a breach of the peace it would be wholly, pointless to insist that its conveners should apply for a licence. In so far as it is likely to obstruct traffic, sufficient provision exists in Sub-section (1) of Section 30 and elsewhere in the Act and other enactments.

It has next to be remarked that the requirement that the assembly should be in a public street, road or thoroughfare does not however seem to apply to processions; as the section stands, the expression "in any such road, street ,or thoroughfare" applies only to the word "assembly". That being So a procession in any public place--whether the place is a street, road, thoroughfare or not--would be covered by the second sub-section. Whether that sub-section extends to the processions which pass over or along places which are not public places is a matter on which I need express no opinion now. A procession, it will be appreciated, is only an assembly in motion; an assembly that consciously intends to go from one place to another or to a place and back or may be even round a place. When the assembly becomes a procession, that even if it is not on a public road, street or thoroughfare, it would become subject to control under Sub-section (2).

3. The Superintendent must be satisfied that any person or class of persons 'intend' to convene 'an' assembly or form a procession. The difference between the words used here and those used in the first sub-section where the relevant expression is "as occasion requires" will at once be noticed. In order to enable the Superintendent to act under Sub-section (2) he must be satisfied oft certain points. One is that any person or class of persons intend to collect an assembly or take out a procession. It is of course not necessaiy that he should know the names of the promoters. The requirements of the sub-section would be met if he is satisfied that a certain class of persons, for instance, Hindus, Muslims or Christians in a locality intend to take out a procession. But, he must be satisfied that they intend to do so. The power conferred by the sub-section is not exhausted in respect of any occasion merely because it has been used in respect of a particular assembly or a procession. It can be used on the same occasion in respect of any number of assemblies or processions.

It is common knowledge that at certain times in the year Hindus, Muslims and Christians take out numerous processions starting from different temples, dargas, or chapels, that these some times go different ways and some times converge to form larger processions. The powers conferred by this sub-section may be exercised in respect of every one of such processions. But the requirement of the sub-section that any person- or class of that persons 'intend' to take out a procession always remains. Therefore the sub-section does not contemplate a general order over a prolonged stretch of time so as to take in assemblies and processions which at the time the order is issued nobody has even thought of collecting or forming. What the subsection visualises is something proximate, something concrete, some particular assembly or assemblies, some particular procession or processions. It does not 'empower a superintendent to lay down a general interdict.

4. Next the Superintendent must issue a notice requiring the persons convening an assembly or promoting a procession, to apply, for a licence. The notice may be general or special, depending upon the circumstances of the case. Where the names and addresses of the persons intending to convene an assembly or promote a procession are known it will be more appropriate to issue a special notice, but where the persons intending to convene an assembly or promote a procession belong to a class of persons, upon every one of whom it may not be practicable to serve a special notice, or where it is likely that a particular individual intending to collect an assembly or promote a procession is likely to evade the notice--these are merely illustrative --a general notice may be issued.

5. Finally in the licences which he issues the Superintendent may lay down detailed conditions for the conduct of the assembly or procession. Sitfh seems to me to be the effect of Section 30(1) and (2).

9. It is not necessary to examine all the decisions cited at the Bar during the arguments and so I shall content myself with rapidly reviewing those that seem more directly in point. In -- 'Emperor v. Krishnalal', AIR 1917 All 450 (C) it was ruled that an order of the Superintendent of Police,

"that no one plying the trade of a jatrawal is to be allowed to frequent the Mbghal Sarai Railway station and the thoroughfares and other public places in Moghal Sarai without having first obtained a pass or licence from the Superintendent of Police or District Magistrate"

was 'ultra vires'. The effect of the decision is that Section 30 cannot be invoked to control the movement of 'individuals' in public places or thoroughfares.

10. In -- 'Emperor v. Shamakandu', AIR 1919 Pat 173 (D), the court decided,

"under Section 30, Police Act, there must be a notice, special or general, on each occasion on which an intended assembly or assemblies is or are required by the Superintendent ot Police to be controlled by means of licences to be taken out by the persons, celebrating the festivities concerned."

In that case an order issued in connection with the Mohurrum of 1915 was held not to be available in respect of Muhurrum of 1916. It may be remarked, however, that the court did not Indicate--nor was it necessary for it to do so --for what length of time an "occasion" may be said to last. It will, however, seem to imply that one notification will cover the whole of a festival spread over a number of days.

The headnote to the case in -- 'Sitaramdas v. Emperor', AIR 1926 Pat 173 (E) reads as follows:

"After an application for a licence to take out a procession is made under Section 30, Police Act, 1861, the applicant is free to take out the procession whether the licence applied for is issued or not. If the licence has been 'issued' the licensee is bound to obey the conditions upon which it is granted whether it has been delivered or not; if, on the other hand, it has not been issued, he is only bound to see that, the general law is not broken.

Where, therefore, under the orders of the District Superintendent of Police, the petitioner applied for a licence to take out a religious profession, but the licence imposing certain conditions, although signed by the Superintendent, was not in fact delivered to tne applicant who, however, without waiting for delivery of licence took out the procession. Held: in revision, that no offence punishable under Section 32, Police Act, was committed as there was neither a failure to apply, for a licence nor a violation of an order "issued" under Section 30;

'Held also', that the word "issue" in that section signifies that if the District Superintendent or Assistant Superintendent of Police signs the licence and delivers it to some one with directions that it shall in due course be delivered to the appellant, the licence has been issued within the meaning of the section."

11. The case in -- 'Emperor v. Shankar Singh', AIR 1929 All 201 (F) was under Sub-section (4) of Section 30 of the Act. Though it is not directly applicable it is nevertheless of interest as indicating to some extent the powers of a police officer under Section 30 of the Act. The Court ruled,

"The powers given to the police by Section 30(4) of the Police Act to regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies do not extend to the passing of an order that no crowds attended by music shall pass within the inhabited parts of a particular city during the Holi. A total prohibition is not covered by the word 'regulate'."

In -- Public Prosecutor v. Satyanarayana', AIR 1931 Mad 484 (G), there was a notice in respect of assemblies and processions which were actually and actively in contemplation, and, a copy of the notice was served on "one of the leading spirits at the meeting." The scope of Sub-sections (1) and (2) of Section 30 did not really arise for consideration in that case.

12. The case in -- 'Debendrakanth Mandal v. Emperor', AIR 1932 Cal 286 (H), is very much in point. In that case the Superintendent of Police with the approval of the Magistrate promulgated a notice requiring any person taking out a procession which might pass by the Imambari or any mosque to apply to him for a licence. The order was issued on 30-3-1929, and was to remain in force for two months. On 15th September that order was disobeyed and the persons concerned were convicted. When the matter was taken up to the High Court it was contended for the petitioners that the order of the Superintendent was 'ultra vires' and illegal. . The judgment runs :

"Mr. Basu.....contends that Section 30 doss not contemplate a general order of the character issued by the Superintendent of Police. His contention is that on ths wording of Section 30, there must be some procession or meeting actually in contemplation at the time, and then and then only can the Superintendent of Police with the approval of the Distrit Magistrate or Sub-Divisional Magistrate call on the convener of the assembly or procession to apply for a license. Reading the section carefully that appears to me to be the correct interpretation of it. The Superintendent of Police has first of all to be satisfied that it is intended by a person or a class of persons to take out a procession or hold a meeting. He has then obviously to take the opinion of the District Magistrate or the Sub Divisional Magistrate and if, in the opinion of that officer, such assembly or procession; if uncontrolled, may cause a breach of the peace, he might then issue a notice general or special that these persons shall apply for a licence. 'The section does not, I think, empower him to issue a general notice as he has done that any one taking out a procession passing a Mosque must take out a licence'. It does not contemplate his taking any action. until he is satisfied that it is intended to take out a procession which, in the opinion of the District Magistrate or the Sub-Divisional Magistrate, if uncontrolled, would be likely to cause a breach of the peace."

If I may say so with respect this seems to be the correct view of the matter.

13. I have already mentioned that in -- 'AIR 1929 All 201 (F)' it was decided that the power to regulate music conferred on the pulice by Section 30(4) of the Police Act did not empower them to impose a total prohibition. In -- 'Emperor v. Qasim Raza', AIR 1935 All 657 (I), it was held that the same rule applies under Section 30(2) and that the sub-section does not in terms give any power to the authorities absolutely to forbid the taking out of a procession. The court remarked that "the power to control does not include the power to forbid."

14. The decisions thus far examined either support or are consistent with the exposition which I have attempted to give of the ambit ot Sub-sections (1) and (2) of Section 30. A different view, however, found favour with a special Bench of the Patna High Court in -- 'Emperor v. Abdul Hamid', AIR 1923 Pat 1 (J). The court there observed:

"The terms of the section are sufficiently wide to empower the Superintendent to issue a general notification containing a prohibition, against convening or directing or promoting processions without a licence even though such prohibition is without limit of time."

In respect of this statement I would make certain observations. The first is, as explained on p. 660 of 'AIR 1935 All 657 (I)' that it wag merely 'obiter'. The persons concerned in that case were convicted not under the provisions of the Police Act but under the Indian Penal Code. The next observation that I would make, is that Das J. one of the three Judges who constituted the Special Bench dissented from this view. The-third is that there is no discussion in the judgment of Mullick J. in which this expression of opinion occurs of the scope of Sub-section (2) of Section 30. Finally, if I may say so with respect, the view expressed by the court fails to give effect to the words "on being satisfied that it is_ intended by any person or class of persons to convene or collect an assembly.........or to form processions" that appear in the sub-section.

These words make it clear that before a Superintendent of Police can act under Section 30(2) he has to be satisfied in respect of certain matter and that matter is that some person or per-sons intend to convene an assembly or form a procession. Obviously where no such intention exists there can be no satisfaction that it exists, and, the power under Section 30(2) cannot be exercised. It is no doubt true that Section 30(2) does not say that the order of the Superintendent shall not be in force for more than a certain period but it was clearly unnecessary for the legislature to say so since it is apparent from the language used that the period during which the order of the Superintendent can operate or remain in force is dependent upon the duration of the contingency cheated by the intention of persons to collect assemblies or take out processions. That being so I must respectfully dissent from the view that the Superintendent can issue an order without limit of time.

15. The case in -- 'Rambabu' v. Emperor', AIR 1946 Pat 381 (K), is of little assistance. There a licence had been issued for the taking out at a particular procession on 2-4-1944. That licence had specified the hours during which the procession might pass and the route it might take. They were perfectly valid conditions and 'undoubtedly within the scope of Section 30(2). The conditions'of the licence were violated, the orders of the police and the Magistrates disobeyed and a determined effort was made to break through the police cordon. The court held that an offence under Section 141, Penal Code, had been committed. If I may say so with respect, that decision was clearly right.

16. The last case I have to refer to is reported in -- 'Laxmikant v. Emperor', AIR 1943 Nag 199 (L). That was a decision under Section 30(4) of the Police Act which is very differently worded from Sub-section (1) and (2).

17. If the order issued by the Assistant Superintendent of Police dated 5-3-1951 is examined in the light of the discussion that has so far been made, it will be seen to be bad in every way. The Superintended did not inform the Sub-Divisional Magistrate that any person or class of persons intended to collect any assembly or assemblies or take out any procession or processions; and he could not have done so because he himself does not appear to have had such information. In his letter he merely stated that he, considered the situation "full of ex-plosive possibilities", that it was necessary to regulate the conduct of meetings and processions and that he 'proposed' to apply Section 30 for one year and invited the concurrence of the Magistrate.

The order of the Magistrate does not show, nor does it otherwise appear, that he applied his mind to the possibility of any assembly or procession being likely to cause a breach of the peace; in the context he could not have possibly done that. In effect the Assistant Superintendent told the Magistrate that he intended doing a certain tiling and the Magistrate adopting the line of least resistance and without applying his mind to the matter on which the statute required him to form a judgment acquiesced in it. It will, be noticed that the order in question was not issued in respect of or in relation to any intended assembly or procession. The duration of the order was for an arbitrary period of one year. The, order 'applied not merely to any person or class of persons as required by Sub-section (2) but to the members of the public in general, also. The order ignored the fact that in respect of assemblies it is only the assemblies in public, roads, streets or thoroughfares that can be dealt with Under Section 30(2).

18. I have no doubt in my mind that the order of the Superintendent of Police was illegal. Besides, the two accused before the Magistrate had not collected or convened any assembly in any public street, public road, or thoroughfare. In my opinion, they Were rightly acquitted. This appeal is therefore dismissed.

Chandra Redddi, J.

19. This appeal is filed by the Government of Madras State against the order of the Second Class Magistrate of Koilpatti acquitting the respondents. The case came up for hearing in the first instance before Somasundaram J. who referred it to a Bench as in his opinion it involved an important question of law. The respondents were prosecuted under Section 32, Police Act (Act 5 of 1861) hereinafter referred to as the Act for violation of the provisions of Section 30 of the said Act. The facts are not in dispute, the only question debated being whether on the facts found, the respondents could be said to have committed any offence.

20. On 19-3-1951 the two respondents con-vened a public meeting to be held on the Gandhi Maidan in Koilpatti and when the meeting was about to be addressed, the Inspector of Police served a copy of the order passed under Section 30 of Act 5 of 1861 and asked them not to proceed with the meeting as a licence was not obtained as required by the order. In disregard of this the respondents wanted to proceed with the meeting. Thereupon the police officer arrested the two respondents and finally charge-sheeted them before the Second Class Magistrate, Koilpatti, under Section 32 of the said Act.

21. The order served on the respondents was one passed by the Assistant Superintendent of Police under Section 30 of the Act on 5-3-51. After setting out the circumstances necessitating the promulgation of such an order, namely, the existence of serious disputes, keen rivalry and high tension between the two rival groups of workers-of the Loyal Mills and after mentioning the names of several persons belonging to these two-groups, the operative part of the order ran thus :

"The other office-bearers, members, adherents and sympathisers of the groups and organisations named, as well as those of other groups and associations and the members of the public in general, who intend to convene and collect assemblies, organise and conduct procession and the like, to apply for a licence to the Assistant Superintendent of Police, Sankaran-koil for such meetings, assemblies and processions and the like within the above-said limits, under Section 30 of the Police Act 5 of 1861 for a period of one year with effect from, 15-3-1951. Any disobedience of orders will render persons liable for punishment under Section 188, I. P. C. and other provisions of the-law. At least five day's time should be given to the Assistant Superintendent of ' Police, Sankarankoil, for the issue of a licence."

22. The validity of the order was challenged on the ground that such an order would not come within the purview of Section 30 of the Act, as none of the ingredients necessary to constitute an offence under Section 32 was present in the case. It was contended before the Magistrate, 'inter alia', that the place where the meeting was sought to be held was not either a public road, or public street or a thoroughfare, that a general order to be in force for a particular. period is obnoxious to the provisions of Section 30 and that it is unconstitutional being opposed to the fundamental rights guaranteed Under the Constitution. These contentions found favour with the lower court and the respondents were acquitted. Hence the present appeal by the State Government.

22a. It is urged on behalf of the State Government by the learned Public Prosecutor that the view of the Magistrate that the order in question falls outside the scope of Section 30 of the Act is erroneous and that the provisions of Section 30 are in terms applicable to the present case, while it is maintained on behalf of the respondents that Section 30 of the Act does not empower the police officer concerned to make an order of the kind passed in this case. To appreciate the relative contentions it is necessary to ex-tract the relevant provisions of the Act. Section 30 of the Act runs thus: (His Lordship quoted the provisions of Sub-sections (1) and (2) of the section and then stated:)

The penalties for disobedience of the orders issued under Section 30 are provided for in Section 32 of the Act. Section 32 enacts :

"Every person opposing or not obeying the orders issued under the last three preceding sections, or violating the conditions of any licence granted by the District Superintendent or Assistant District Superintendent of Police for the use of music, or for the conduct of assemblies arid processions, shall be liable on conviction before a Magistrate to a fine not exceeding two hundred rupees,"

The answer to the questions arising in this matter turns mainly on the construction to be placed on Sub-section (2) of Section 30 of the Act.

23. The first point that falls to be decided is whether Gandhi Maidan in this case is a public road or a public street or a thoroughfare within the meaning of Section 30. There can be no doubt that it is not a public road or a public street. The only question is whether it is a thorough-fere. That it is a public place cannot be disputed. But the matter for consideration is whether every public place is a thoroughfare so as to fall under Section 30. In other words, is the expression thoroughfare of such a wide import as to include every public place irrespective of the use to which it is put. The meanings of the expression "thoroughfare" so far as they are relevant for the inquiry as given in Murray's English Oxford Dictionary Vol. IX, part II are :

"A passage or way through, (a) ........ (b) ....... (c) A road, street, lane, or path forming a communication between two other roads, or streets, or between two places, a public way unobstructed and open at both ends especially, a main road or street, a highway."

This shows that every public place cannot become a thoroughfare.

The term "thoroughfare" can include a public place as stated above serves as a passage for the public. In my opinion every place of public resort cannot be a thoroughfare for purposes of Section 30 of the Act. It is only a place which is used by the public for passing from one place to another that will attract the provisions of Section 30 and the expression "thoroughfare" is not of such wide connotation as contended for by the appellant. If the Legislature wanted that Section 30 should cover every public place the intention would have been expressed in clear and unambiguous terms by the use of the words "a public place" or "a place of public resort". The absence of these expressions in my opinion indicates that the intendment of the section was not to include in its scope every place to which the public have a right to resort.

24. Support to this view can be had in- --AIR 1933 All 612 (A)'. There, the accused persons who convened a meeting to be held in a public park were required to apply for a licence for that meeting under Section 30, Police Act. The order having been disobeyed and the conveners having been prosecuted for that offence, the question arose whether a public park was a thoroughfare within the ambit of Section 30. It was answered in, the negative and Kendall J. in dealing with the question observed : "It is certain, however, that the park is not intended to be exclusively used as a thoroughfare or as a way which people pass, and this is not its chief or primary object. It is no doubt a public place, but Section 30, Police Act, does not refer to a public place." The same view is shared by the Bench of the Orissa High Court in -- ' (B)'. It was laid down in this case that in order to succeed in a prosecution, under Section 30 it must be established that the actual site of the meeting was used as a passage by the public.

25. The learned Public Prosecutor in support of the theory that the expression "thoroughfare" is capable of wider meaning relies on the passage in Roland Burrows "Words and Phrases Judicially defined" (Vol. 5) page 291. Under the word "thoroughfare" it is stated : Australia:

"The question in this case is whether a railway enclosure is a 'thoroughfare' ............This railway was open for public traffic. Every person on paying his fare had a right to sit in the train and pass over the line, and therefore it was a thoroughfare. It is said that a member of the public has no right to walk along the railway line nor has a person the right to drive or ride along the line; but it does not follow that a place is not a thoroughfare because the right to use it is restricted in a certain way. In England there are many places where the public have a right to walk, but where the public cannot drive or ride, and such places are thoroughfares. It does not follow because a place is not open for all purposes that it is not a thoroughfare."

This is an extract from the judgment of Darley C. J. in -- 'Ex P. Ryan (1899) 20 N. S. W. L. R. 274' (M). Evidently this construction is based On the terms of the provisions of the Railway Act in Australia. So, that does not throw "much light on the point for decision in this case". I therefore feel that the definition of "thoroughfare" as given in that ruling is not of much help in this case. There is no evidence in the present case that Gandhi Maidan is used by the public for gaining access to other places. All that P. W. 1 testifies to is that the venue of the meeting is a public place. It follows that the order directing the persons mentioned therein to obtain a licence before holding the meeting at Gandhi Maidan, which as I have already said cannot be called a thoroughfare, is beyond the powers of the Assistant District Superintendent of Police and contravention of such an order does not constitute an offence within the meaning of Section 32 of the Act. This is sufficient to dispose of the appeal.

26. But as another point also was argued at great length, I would like to deal with it. The point is whether Section 30(2) confers a power on the District or Assistant District Superintendent of Police to pass a general order so as to be effective for a specified period or whether it can only be with reference to a particular meeting. Mr. Rangaswami Aiyangar the learned Public Prosecutor submitted that the order contemplated can be, of a general nature and it need not be confined to any specific meeting or a procession. According to the learned Public Prosecutor, the intendment of the section is to enable the police officer to regulate processions and assemblies and therefore the officer concerned can pass an order to be operative for a specified period and for particular places which in the opinion of the authorities are considered to be potential sources of disturbance to public peace or tranquility and that it is not obligatory on the officer concerned to pass a separate order for every meeting. In my opinion, the language of Sub-section (2) of Section 30 cannot bear the interpretation that is sought to be put upon it by the learned Public Prosecutor.

According to that sub-section the officer concerned should be satisfied that any person or class of persons were intending to convene or collect an assembly or form a procession. It is also necessary that before the powers could be exercised under Sub-section (2), the Magistrate mentioned in the sub-section should apply his mind to the question whether it would lead to a breach of the peace or not. It looks to me that the condition precedent to the promulgation of the order under this sub-section is a meeting or a procession in contemplation. It is something immediate or in prospect that is envisaged in the sub-section and not what is remote or Something likely to happen in distant future. If the sub-section was intended to invest the District or Assistant Superintendent of Police with power to issue a general order to be operative for a particular period the expression "on being satisfied etc." does not have significance. It is clear to my mind that this sub-section visualises a meeting or a procession in contemplation by any particular individual or class of individuals. The satisfaction, contemplated on the part of the officer concerned is in relation to an assembly or a procession that is proximate,

The object in requiring a licence to be obtained in a given situation is to direct the conduct of all the assemblies and processions on the public roads or in the public streets or in the thoroughfares in the interest of traffic and maintenance of order in those places by laying down conditions which have to be conformed to by the licensee. The police officers enumerated in the section have to deal with each case as it arises by applying, their mind to it. A separate order must be passed as and when the police officer is satisfied that a public meeting is going to be convened or a procession is going to be taken out.

27. That this is the true meaning of the subsection is seen from -- 'AIR 1932 Cal 286 (H)'. In that case the Superintendent of Police of Hooghly promulgated a notice under Section 30, Police Act, requiring the persons taking put a procession that might pass by a particular mosque to apply to him for a licence. This order was to remain in force for two months. It was ruled by Cuming J. that Section 30 did not confer a power on the Superintendent of Police to issue a general notice as had been done in that case.

28. The same view was taken in the dissenting judgment of Das J. in -- 'AIR 1923 Pat 1 (J)', though the other two Judges Mullick and Coutts JJ. took a different view on this aspect of the matter. In support of this view Das J. placed reliance on an Unreported decision of that Court in --'Emperor v. Shama Kandu', Cr. Ref. No. 32 of 1917 (Pat) (N). The opinion of the majo-rity of the Judges was that the words in Section 30 are sufficiently general to enable the authorities concerned to issue a general notification for the purposes mentioned therein. In -- 'AIR 1935'All 657 (I)', a Bench of the Allahabad High Court was not inclined to attach weight to these remarks observing that they were 'obiter'. The-construction placed by the majority of Judges on Sub-section (2) misses the significance of the language "on being satisfied." If the authority concerned could issue an order to be in force, for a particular period, the question of his being satisfied that a meeting is going to be convened does not arise at all. It also fails to give effect to the words "an assembly" and "a procession" occurring in the early part of the sub-section. In my judgment the use of these words is suggestive of One assembly or one procession. I express my respectful disagreement with the majority view in --.'AIR 1923 Pat' 1 (J)' and I am inclined to agree with the opinion expressed by Das J.

29. In this context, Mr. Pattabhiraman, counsel for the respondents cited to us a judgment of Jwala Prasad J. in -- 'AIR 1919 Pat, 173 (D)'. Though the facts in that case are not 'ad idem' with the present one, some of the observations are apposite. There a notification was issued on 10-11-1915 in connection with the then ensuing Mohurrum requiring persons taking out processions on certain routes to obtain a licence. In December 1916 a procession was taken out during the Mohurrum without a licence. The person responsible for it was charged for disobedience of the order promulgated in 1915. On a reference by the Sessions Judge whether a conviction under Section 32 of Act 5 of 1861 for disobedience of the order mentioned above was valid, it was ruled by Jwala Prasad J. that the order of the District Superintendent of Police had no force or application to the celebration of Mohurrum in 1916. In dealing with that point the learned Judge remarked that

"there must be a notice, special or general, on each occasion on which an intended assembly or assemblies are required by the Superintendent of Police to be controlled by means of licences to be taken out by the persons celebrating the festivities concerned."

30. Another decision relied on for the respondents is -- 'AIR 1917 All 450 (C). But I do not think that it is very much in point aa what was laid down there was that an order prohibiting persons plying the trade of, Jatra-wal from frequenting Moghal Sarai railway station and the thoroughfares and other public places in Moghal Sarai without a licence is "ultra vires" as Section 30, Police Act, refers to assemblies and processions.

31. To substantiate the proposition that a general order of this nature to be effective for a specific period without reference to any, particular meeting can be passed, the learned Public Prosecutor cited to us a case of the Nagpur High Court in -- 'AIR 1943 Nag ,199 ' (L). I must observe that this ruling is not quite relevant as it deals with Section 30(4), the language of which is altogether different from that of Section 30(2). In fact this case refers to -- 'AIR 1932 Cal 286 (H)', and distinguished it on the ground that the last mentioned case is based on the peculiar language of Sub-clause (2). It appears to me that under Section 30(2) it is utterly beyond the power of either the District or the Assistant District Superintendent of Police to pass an order which can be in operation for a particular period. It is only in relation to meeting that is In contemplation that an order under that subsection can be issued. In the view I have taken of these two questions I do not propose to deal with the further contentions raised or to examine the rulings cited as bearing on them,

32. On this discussion, it follows that the order in question is invalid and therefore disobedience of it does not amount to any offence. In these circumstances, the appeal filed by the State Government is dismissed.


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