1. The facts of the case out of which this Rule has arisen are shortly these: The petitioner has been convicted under Section 32, Act 5 of 1861, for taking out a certain image in procession without a license. The District Superintendent of Police had published a notice under Section 30, Act 5 of 1861, that all processions required license from the police. The case of the accused is that the idol was not taken out in procession and secondly it is argued that the notice prohibiting or rather requiring licenses to be taken for processions was not properly promulgated and that there were serious discrepancies between the original notice in English and the notice in Bengali which was actually published.
2. The first point to be considered is whether was a procession. The case of the petitioner is that the image in question was merely carried down to the ghat and immersed in the river. There was neither music nor did any one accompany the idol except the persons who actually carried the idol. He contends that there was not a procession. I find the word 'procession' has been defined in Murray's English Dictionary as
the action of a body of persons going or marching along in orderly succession in a formal or ceremonial way, especially as a religious ceremony or on a festive occasion.
3. It is therefore important to see what the findings of the Magistrate are on this question of fact. The findings of the Magistrate on this point are far from satisfactory. He deals with it as follows:
P.W. 6, Shambhu Sha, has in his cross examination said that the protima was carried by four or five men only without any dhole or kansb music. The defence wanted to make much out of this evidence. But even if the protima would have been carried to the river ghat by four or five carriers simply without a license in the face of the orders promulgated by the notice it would be considered taking it out in a procession without a license .... But the evidence of the Sub-Inspector and that of P. W. 6 being read together it is found that it was taken out to the ghat by the public street by a number of men and this surely constituted a procession.
4. Now in my opinion if the image was merely carried down to the ghat by the carriers without any other persons accompanying it and without anything being done in the way of ceremony there was no procession. The only finding of the Magistrate is that it was carried to the river ghat by a number of persons. But there is no finding that it was done in a formal or ceremonial way. One of the witnesses states that there was no music or procession, while the Sub-Inspector says there were some 8 or 10 persons and music also in the procession. The Magistrate does not find either one way or the other. I do not think that the findings of the Magistrate are sufficient to show that the image was carried in procession. It seems to me that the image was merely carried down by some four or five carriers and immersed in the river and there was nothing to be described as a body of persons going or marching along in orderly succession in a formal or ceremonial way. It does not seem to me that a license was required for what the petitioner actually did. The conviction of and the sentence passed upon the petitioner are set aside and the accused is acquitted. The fine if paid will be refunded.