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In Re: M. Viswanadha Rao and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in112Ind.Cas.863
AppellantIn Re: M. Viswanadha Rao and ors.
Cases ReferredSundram Chetty v. Queen
Excerpt:
criminal procedure, com (act v of 1898), section 144 - public peace, preservation of--public and private right, conflict between--duty of government. - - ' the position could not have been better stated. if the government consider that that is the only method by which the right can effectively be enforced, but that it cannot be adopted without danger to the public interest at large, it is not for us to say that they are bound to adopt it or to suggest other means of enforcement, as to the efficacy or advisability of which they, and not we, are the proper judges......prosecutor. the dispute out of which it arises, is concerned with the rights of the hindus of nellore town to conduct processions with music past the mosques of that place. the hindus have obtained from a competent civil court a declaration of their right to conduct such processions subject to certain limitations. in october last, they were, however, prohibited by an order of the district magistrate passed under section 144, criminal procedure code, from 'taking any procession with music in any street of nellore where there are mosques' the operation of the order has been extended till 7th february, by the governor in council 'in so far as it prohibits any procession with music within so yards of any mosque in nellore.'2. mr. ethiraj for the petitioners concedes that he cannot.....
Judgment:
ORDER

1. This criminal [revision petition has been placed before a Full Bench at the instance, we are informed, of the Public Prosecutor. The dispute out of which it arises, is concerned with the rights of the Hindus of Nellore Town to conduct processions with music past the mosques of that place. The Hindus have obtained from a competent Civil Court a declaration of their right to conduct such processions subject to certain limitations. In October last, they were, however, prohibited by an order of the District Magistrate passed under Section 144, Criminal Procedure Code, from 'taking any procession with music in any street of Nellore where there are mosques' the operation of the order has been extended till 7th February, by the Governor in Council 'in so far as it prohibits any procession with music within SO yards of any mosque in Nellore.'

2. Mr. Ethiraj for the petitioners concedes that he cannot contend that it is the duty of the authorities who are responsible for the preservation of the public peace in the town of Nellore to enforce the decree is all circumstances and, at all costs. If that be so, cadit questio, if we are not being asked to lay down that is their duty it is difficult to see what we are being asked to say. We are not here to advise the Government what measuire they should take to protect the rights of the Hindus or to preserve the public peace at Nellore. The preservation of the public peace is their function and in the performance of that function, it may be necessary for them to override temporarily private rights. To quote the judgment of Sir Charles Turner, C.J., in Sundram Chetty v. Queen 6 M. 203 : 2 Weir. 77: 'The first duty of Government is the preservation of life and property, and, to secure this end, power is conferred on its officers to interfere with even the ordinary rights o members of the community. The order of the 26th March, 1859, appreciates the distinction between rights which have a primary, and rights which have a secondary claim to such protection as the Government can afford; and, where the Government cannot protect both classes of rights, it may and it ought to abandon the latter to secure the former. In this view...the Government is not bound to deprive some members of the community of the services of the force that is found necessary for the protection of their lives and property to enable others to exercise a right which not only is not indispensable to life or to the security of property but, in the case assumed, creates an excitement which endangers both.' The position could not have been better stated. Where there is a conflict between public interest and a private right, the former must prevail. The right which the petitioners claim and are entitled, in ordinary circumstances, to exercise, has once been enforced by drafting Police into the town from seven other districts. If the Government consider that that is the only method by which the right can effectively be enforced, but that it cannot be adopted without danger to the public interest at large, it is not for us to say that they are bound to adopt it or to suggest other means of enforcement, as to the efficacy or advisability of which they, and not we, are the proper judges. We decline to interfere and dismiss the petition.


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