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Abu HusaIn Shaikh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1940Cal358
AppellantAbu HusaIn Shaikh and ors.
RespondentEmperor
Cases ReferredPabutty Charan v. Queen Empress
Excerpt:
- .....on the assumption that the notice which was actually promulgated was not the order recorded by the learned magistrate on 8th may 1939 but an inadequate precis thereof contained in a parwana, dated 9th may 1939. it may be noted that the learned advocate does not contend that disobedience of the order did not tend to cause the requisite consequences for which provision is made in section 188, i.p.c., as regards the promulgation of the order it appears that, on 8th may 1939 the learned sub-divisional magistrate came to the conclusion that it was necessary to issue a prohibitory order restraining certain persons and the public generally, from holding or attending the rival hat at domraon and he drew up a formal order with regard to this matter which is in the following terms:whereas i am.....
Judgment:
ORDER

Edgley, J.

1. This rule is directed against the order, dated 1st December 1939, made by the learned Sessions Judge of Khulna, by which he affirmed the convictions of the petitioners under Section 188, I.P.C. The case for the prosecution was to the effect that the petitioners had disobeyed an order promulgated by the Sub-divisional Magistrate of Khulna prohibiting the holding of a hat at Domraon which had been established as a rival hat to another hat which is known as the Gazirhat. It was alleged that the prohibitory order was issued by the Sub-divisional Magistrate on 8th May 1939 and that thereby certain specially named persons and the public generally had bean forbidden to hold the rival hat at Domraon on Fridays and Mondays and had also been ordered to abstain from certain other acts set forth in the order. It was alleged that this order has been duly promulgated in the locality on 12th May 1939, but that in spite of its promulgation the petitioners (who are members of the general public) had disobeyed it and had therefore rendered themselves liable to prosecution under Section 188, I.P.C.

2. The case for the defence was mainly to the effect that the order had not been disobeyed and that, in any case, it was an invalid order and had not been properly promulgated in accordance with the provisions of the law. The case for the defence was rejected by both the Courts below and the petitioners were convicted under Section 188, I.P.C., and were sentenced to pay fines or, in default to undergo various periods of imprisonment.

3. Two points have been pressed by the learned advocate for the petitioners in connexion with this rule. In the first place he contends that the order was not properly promulgated in accordance with the provisions of the Criminal Procedure Code and he further contends that the order itself is invalid as it is not in proper form and gives insufficient information to the members of the public regarding the acts from which they had been ordered to abstain. In this connexion, it may be mentioned that these arguments are mainly based on the assumption that the notice which was actually promulgated was not the order recorded by the learned Magistrate on 8th May 1939 but an inadequate precis thereof contained in a parwana, dated 9th May 1939. It may be noted that the learned advocate does not contend that disobedience of the order did not tend to cause the requisite consequences for which provision is made in Section 188, I.P.C., As regards the promulgation of the order it appears that, on 8th May 1939 the learned Sub-Divisional Magistrate came to the conclusion that it was necessary to issue a prohibitory order restraining certain persons and the public generally, from holding or attending the rival hat at Domraon and he drew up a formal order with regard to this matter which is in the following terms:

Whereas I am satisfied from a report of the Sub-Inspector of Police of Terokhada Police Station, dated 6th May 1939 endorsed by the Circle Inspector of Police, Sadar, dated 6th May 1939, that a rival hat is being held at Domra, Police Station Terokhada, within the local limits of my jurisdiction, at a distance of less than a mile from the old and long established hat at Gazirhat on Mondays and Fridays (i.e. the dates on which Gazirhat is held) whereby the public tranquillity is being disturbed, for which breach of the peace, danger to human life, public safety, riot, and affray, are imminent and whereas immediate prevention and speedy remedy of such disturbance is desirable, I do hereby direct under Section 144, Criminal P.C., the persons named in the margin and the public in general, when frequenting and visiting the said hat at Domra from the date of promulgation of this order, to abstain from holding or attending the rival hat at the above named place at Domra on Mondays and Fridays and not to do any unlawful acts by seizing or restraining traders and boatmen coming to Gazirhat and threatening or committing violence to the people attending Gazirhat or to commit any breach of the peace or disturb public tranquillity.

4. Given under my hand and the seal of this Court this 8th May 1939.

K.N. Majumdar.

Sub-Divisional Magistrate, Khulna.

8th May 1939.

5. Thereafter, on 9th May 1939 certain parwanas were issued to the Sub-Inspector of Police in charge of the Terokhada Police Station, which purported to be orders under Section 144, Criminal P.C. In this case we are only concerned with one of these parwanas, Ex. 1, which was addressed to the public generally. This parwana is in the vernacular and is to the following effect:

To the Public at large.

It is hereby made known to you that there is every likelihood of a serious breach of the peace as there is an existing dispute regarding the establishment of a rival hat to the Gazirhat in Mouza Domraon between the proprietor of the said Gazirhat and the persons who desire to establish the said new hat.

I do hereby forbid you to frequent the said new hat which is being held on Mondays and Fridays in Mouza Domraon within the jurisdiction of the Terokhada Police Station.

Fixed: date 23rd May 1939.

Given under my hand and the seal of the Court, this 9th May 1939.

To

C/O Terokhada Police Station, For service and return.

K.A. Majumdar.

Sub-Divisional Magistrate, Khulna,

9th May 1939.

6. On the back of the abovementioned document is endorsed a service return in the handwriting of the Sub-Inspector to the effect that the notice had been duly promulgated and its contents had been explained verbally. It was further stated that the general public and the Haturias, (who admittedly are the persons concerned in organising the rival hat) had been warned not to violate the order. The notice was said to have been promulgated on 12th May 1939 between the hours of 9 A.M. and 12-30 P.M. The judgments of both the Courts below contain findings to the effect that the pro. hibitory order made by the learned Sub-Divisional Magistrate on 8th May 1939 wag duly served, but it does not appear that in arriving at those findings either the learned Magistrate or the learned Sessions Judge considered the effect of the service return which appears on the back of the parwana, Ex. 1. In this connexion, it is pointed out by the learned advocate for the petitioners that the record indicates that the order, dated 8th May 1939, must have been made before the public had actually begun to assemble at the Domraon hat and he contends that, in the form in which it was actually promulgated, it was illegally directed to the public generally without regard to the limitation imposed by Sub-section 3 of Section 144. He argues that an order under Section 144, Criminal P.C., which is addressed to the public generally, is only valid (1) if it is issued at a time when the members of the public, whom it is sought to restrain from doing certain acts, are actually frequenting or visiting a particular place and (2) if it is addressed to the limited section of the public who may have occasion to visit or frequent the prohibited area. In support of the above contention reliance is placed upon certain observations made by Mukherji J. in Ashutosh Roy v. Harish Chandra : AIR1925Cal625 which are in the following terms:

Although Clause (3) of Section 134 provides that an order under this Section may be directed to particular individuals or to the public generally when frequenting or visiting a particular place, it does not provide for the issue of an order to the public generally except as qualified by the last line of the clause. The order can only be issued to the public generally when frequenting or visiting a particular, place. This order in so far as it directs the public in general to abstain from attending the hat is bad, since it is not until the public attend the hat that the order can be binding on them. They cannot be forbidden by the order to do an act, when the order cannot be addressed to them until after they have done that act.

7. Mukherji J. adhered to these views in a later case, Abdul Majid v. Nripendranath : AIR1934Cal393 . It appears, however, that the main grounds on which both these decisions were based had no connexion with the subject-matter of the abovementioned observations, and this being the case, these observations must admittedly be regarded as obiter dicta. In this connexion, Mukherji J. who appears on behalf of the petitioners, admits that, if the view expressed in the abovementioaed observations were correct, it would render it impossible in many cases to prevent any apprehended danger unless the names of the persons threatening trouble were actually known to the Magistrate at the time when he issued his order, as no order could be issued against unknown persons whom it was considered desirable to restrain unless such persons had actually assembled at a particular place and a Magistrate with the requisite powers happened to be present there at the critical time. In my view, the language of the Code does not warrant Huch a narrow interpretation. The second portion of Section 144(1) provides that a Magistrate duly empowered

may by a written order stating the material facts at the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

It is further provided by Sub-section (3) that an order under this Section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

8. In my view, the plain meaning of Sub-section (3) read in the light of Sub-section (1) is that, in the circumstances set forth in Sub-section (1), a Magistrate may not only direct an individual to abstain from a certain act or acts but may also issue a similar direction to members of the public generally, provided in the latter case the prohibition is limited to occasions on which the members of the public may frequent or visit a particular place. In other words, it would not be legal to issue a general prohibition to the public to abstain from a certain act but an order to the public generally to abstain from a certain act on the occasions when they happened to visit a particular place would be valid. The language is also sufficiently wide to cover residents in a particular locality but, in either case, it is, of course, essential that the place covered by the order and also the act prohibited should be described with reasonable precision, whether such place be an entire district or a particular street in a town and whatever the nature of the prohibited act may be. For instance, if it is intended to prohibit access to a certain place within a particular locality, such as a certain street within the Municipality of Howrah, it would be necessary to tell the general public that, when frequenting or visiting the Municipality of Howrah they should abstain from visiting the prohibited street which should be named.

9. It is argued by the learned advocate, who appears on behalf of the Crown, that the construction of Sub-section (3) which I propose to adopt would impose an undue restriction upon the powers of the authorities mentioned in Sub-section (1) as regards the issue of orders prohibiting the members of the public at large from visiting a particular district. I think however that the acceptance of this contention would necessitate the placing of too wide an interpretation upon the language of the sub-section. It seems to me to be clear that, as regards notices issued to the general public, some limitation, as already indicated by me, must have been intended. The expression 'a particular place' appears to be sufficiently wide to include the whole district over which a Magistrate may have jurisdiction, Abdul Karim v. Emperor (1937) 24 A.I.R. Lah. 80 but, apart altogether from the question whether even a District Magistrate has jurisdiction to direct a prohibitory order under Section 144, Criminal P.C., to members of the public outside his district, I think it is clear that the public who can be affected by a prohibitory order of this nature must consist of those who ordinarily frequent or visit or have occasion to frequent or visit the district as a whole or some place within the district. The law does not contemplate the prohibition of the frequenting or visiting of the 'particular place' to which reference is made is Sub-section (3) but the prohibition of some act on an occasion on which such place is frequented or visited. It would not therefore be reasonable to suppose that it could have been the intention of the Legislature to empower a Magistrate by means of an order under Section 144, Criminal P.C., to restrain the movements of the members of the public before they had occasion to frequent or visit the district over which he had jurisdiction by forbidding them to frequent or visit the district at all.

10. Subject to the above-mentioned qualification I am of opinion that Section 144, Criminal P.C., gives a Magistrate full power to restrain the activities of the public within his jurisdiction by issuing orders of a general nature such as the one which was issued by the learned Sub-Divisional Magistrate of Khulna on 8th May 1939. The validity of general orders of this nature has been recognized in at least two decisions of this Court, namely in Nagendra Nath v. Rakhal Das Sinha (1919) 6 A.I.R. Cal. 108 and Nigharendu Dutt v. Emperor : AIR1939Cal703 . In those cases it was not thought necessary to apply the test to which Mukherji J. referred in Ashutosh Roy v. Harish Chandra : AIR1925Cal625 cited above, and, with great respect to the observations of the learned Judge in that case, I do not consider that the Legislature in-tended that the scope of an order under Section 144, Criminal P.C., should be restricted in the manner suggested by him. The learned advocate for the petitioners then referred to a certain irregularity which had been found by both the Courts below in connexion with the promulgation of the order, which was to the effect that no copy thereof had been stuck up as required by Section 134, Criminal P.C. Admittedly, however, an irregularity of this nature would be immaterial provided the persons whom it was sought to prosecute in respect of any disobedience of the order had knowledge of its contents and, in this connexion, it was 'pointed out by Wilson J. in Pabutty Charan v. Queen Empress (1889) 16 Cal. 9.

that the terms of Section 134 are directory and ought to be followed and that it is an irregularity when they are not.

The learned Judge then went on to say: But it does not follow that the order is a nullity in consequence, and I think that when the order has been duly made and promulgated although not strictly in accordance with the terms of the law, and has been brought to the actual knowledge of the person sought to be affected by it, that is sufficient to bring the case under Section 188, I.P.C.

11. On this point the judgments of both the Courts below contain findings to the effect that the petitioners had the requisite knowledge with regard to the contents of the prohibitory order which was issued by the learned Sub-Divisional Magistrate of Khulna, but as I have already pointed out, these findings did not take into consideration the service return which was endorsed on the back of the parwana, Ex. 1, dated 9th May 1939. It is argued on behalf of the petitioners that the service return indicates that the order which was promulgated to the general public was not the formal order which was drawn up by the learned Magistrate on 8th May 1939 (Ex. 2) but was merely an inadequate precis of that order (Ex. 1), which gave no sufficient information with regard to the acts from which the members of the public had been directed to abstain. As already pointed out, the case for the prosecution was that the contents of the order, dated 8th May 1939, had been communicated to the petitioners and, this being the case, if it were found that the only order which had been notified to the general public was the precis, dated 9th May 1939, the conviction clearly could not be sustained. This latter order conveys a very inadequate idea of what had really been prohibited by the Magistrate. The formal order, dated 8th May 1939, set out the facts and the reasons for the prohibition and explained in clear terms what the acts were, from which the public were to abstain. There was no difficulty in understanding this order and it may be assumed that any law-abiding citizen to whom it had been explained would have obeyed it. The meaning of the precis was however obscure and it was even inconsistent with the terms of the main order. For instance, in the order, dated 8th May 1939 certain named persons and the public in general, when frequenting or visiting the new hat at Domraon, were directed to abstain from certain acts. It was therefore assumed in the main order that the persons to whom the order was directed were persons who would have occasion to frequent the Domraon hat. In the order, dated 9th May 1939 on the other hand, the persons concerned are actually forbidden to frequent the hat at all.

12. The learned advocate who appears on behalf of the Crown argues that it is quite clear from the evidence and the findings that the order which was actually served was the main order of the learned Magistrate, dated 8th May 1939, and on this point he has referred me to the depositions of some of the witnesses examined in the trial Court, more particularly to the testimony of Ashrafuddin Ahmed who recorded the service return on the back of the parwana, Ex. 1. It cannot be said however that his testimony is at all clear with regard to this matter. He states that he served the parwana and he also refers to the service of the order. His attention does not appear to have been called directly to the service return, dated 12th May 1939, and his evidence contains no clear indication on the point whether the main notice Ex. 2 was served by him with the parwana, Ex. 1, or whether it was served at all. The testimony of the Inspector, Girija Bhusan Roy, P.W. 7, is similarly somewhat inconclusive. It is true that he refers to the order, Ex. 2, and explains that he was present at Domraon when the order was served by the officer in charge of the Terakhada Police Station. He also states that the promulgation of the service was by reading out the order and explaining it to the persona who were present. The service return, dated 12th May 1939 is however to the effect that the parwana Ex. 1 was served in this way, and as the questions which were put to Girija Bhushan Roy as regards the service of the notice were not in sufficient detail, it is difficult to arrive at any definite conclusion on his testimony as it stands whether he was not confusing the parwana, Ex. 1 with the order Ex. 2.

13. It is strenuously argued by the learned advocate who appears for the Crown that, even if it be conceded that there may have been some confusion of thought with regard to the service which was effected between the hours of 9 A.M. and 12-30 P.M. it is abundantly clear that the notice which was promulgated during the latter portion of the afternoon of 12th May 1939 must have been the order, Ex. 2. Even with regard to this point, however, I do not think it would foe safe to come to any such conclusion without a further examination of the witnesses concerned with the promulgation of the notice after their attention had been expressly drawn to the service return on the back of the parwana Ex. 1.

14. With regard to the second main contention put forward by the learned advocate for the petitioners to the effect that the order itself is invalid, the decision must mainly depend upon the question whether the order which was actually promulgated was the main order recorded by the Magistrate on 8th May 1939 or the inadequate precis of this order, dated 9th May 1939. I have already referred to the nature of these two orders and I have pointed out that, in my view, the service of the par-wana Ex. 1, would be insufficient for the purpose of enabling this Court to sustain the conviction of the petitioners. If, on the other hand, the order which was actually promulgated and of which the petitioners had knowledge was the order recorded by the learned Magistrate on 8th May 1939, I would have been prepared to hold that this order complied with the provisions of Section 144, Criminal P.C., and to uphold the conviction on the basis of the findings contained in the judgment of the learned Sessions Judge. It is therefore necessary for the ends of justice that this case should be remanded to the trial Court in order that further evidence may be taken for the purpose of ascertaining whether the order, dated 8th May 1939, was actually promulgated as required by law and whether the petitioners had knowledge of its contents. After recording such further evidence on this point as the learned Magistrate may consider necessary he should reconsider the matter in the light of such further evidence and the observations which have been recorded in this judgment. Subject to these observations the decisions of the Courts below are set aside and the case is remanded to the trial Court for further consideration on the evidence which is already on the record with such additional evidence as the learned Magistrate may consider necessary. The petitioners will, of course, be allowed to cross-examine any witnesses who may be examined by the learned Magistrate and they may also adduce such further evidence in rebuttal as they may consider necessary. The rule is made absolute in these terms.


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