1. This Rule was issued upon the Chief Presidency Magistrate to show cause why the conviction of the petitioner and the sentence passed upon him should not be set aside on the ground that the order of the Commissioner of Police dated the 4th August 1912 does not come within the scope of Clause (4) of Section 62 A. of the Calcutta Police Act (Act IV B.C. of 1866) and Clause (4) of Section 39A of the Calcutta Suburban Police Act (Act II B.C. of 1866). The two sections are in identical terms and were inserted in the Acts referred to by the Calcutta and Suburban Police (Amendment) Act (Act III B.C. of 1910).
2. Clause (4) runs as follows: 'The Commissioner of Police may also, by order in writing, prohibit any procession of 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 seven days without the sanction of the Lieutenant-Governor'.
3. The facts of the case are these. The petitioner, Leakat Husain, describes himself as a Swadeshi preacher. He says that since some time in 1905, he has led hundreds of processions in Calcutta; and elsewhere in furtherance of the Swadeshi movement. On the 3rd August 1912, Sub-Inspector, S.C. Mitra, received a printed notice from the petitioner, being a copy of a notice which he had published, or was intending to publish, inviting the public to take part in two processions and meetings on the 7th August. On the 4th August, the Commissioner of Police passed the following order:
Whereas it appears to the Commissioner of Police that it is necessary for the preservation of the public peace that he should prohibit any procession or public assembly in which you, Leakat Husain have or may have any concern whatsoever on the 7th August 1912, within the Town and Suburbs of Calcutta, the Commissioner of Police, in pursuance of the provisions of Section 62A Clause (4) of Act IV of 1866 B.C. and Section 39A Clause (4) of Act II of 1866 B.C. as modified up to the 1st June 1910, hereby prohibits you, the said Leakat Husain, from having any concern whatsoever with any procession or any public assembly on the 7th day of August 1912, within the limits of the Town and Suburbs of Calcutta.
4. On the same day, i.e., 4th August 1912, the Commissioner of Police passed a further order requiring the said Leakat Husain to comply with the order above set out.
5. The two orders were admittedly served on Leakat Husain personally.
6. On the 5th August, the Commissioner of Police passed a third order to the following effect:
Whereas it appears to the Commissioner of Police, Calcutta, that it is necessary for the preservation of the public peace or the public safety that he should prohibit any procession or public assembly which has any reference to the boycott movement or the subject of the boycott of foreign or imported goods or which has any reference to the celebration of what is known as the boycott day, the Commissioner of Police, in pursuance of the provisions of Section 62A Clause (4) of Act IV of 1866 and Section 39A Clause (4) of Act II of 1866 B.C. as modified up to the 1st June 1910, hereby prohibits any procession of public assembly on the 7th day of August 1912, within the limits of the Town and the Suburbs of Calcutta, which has any reference whatsoever to the boycott movement on the subject: of the boycott of foreign or imported goods, or which has any reference whatsoever to the celebration of what is known as the boycott day, on the 7th of August 1912.' It is not disputed that the petitioner received this order on the 7th August when he was leading the first of the processions formed by him that day.
Previously to the 7th August, the petitioner had expressed his intention to disregard the Commissioner's orders of the 4th August, on the ground that they were illegal.
On the 7th, the petitioner was leading a procession along Cornwallis Street at about 7A.M., and what happened is thus described by the Magistrate: 'inspector N.N. Bose met the procession and went up to accused and told him that he had been served with a notice from the Commissioner, prohibiting him from taking out a procession and asked accused why he had done so. Accused said the orders served on him were illegal and he refused to disperse the procession. The Inspector asked him to disperse it and showed him another order of the Commissioner, Exhibit 3, prohibiting any procession on 7th August which had any reference to the boycott movement. This document was explained to accused. Accused asked one of his followers, Upendra Nath Chowdry, to read it to him. Upendra explained it to the accused and signed it, but the accused refused to sign it. About this time, the Deputy Commissioner, Mr. Lawman, with Inspector Mulcahy came up. The processionists shouted out Bande Mataram, at the call of the accused. The accused was arrested and the procession dispersed. Accused was immediately released on signing a bond. Shortly after, the accused again formed the procession and led it down the street with banners flying till it reached Sukeah street where it was stopped and dispersed by Inspector Fazal.
7. On these facts, the petitioner has been convicted under Sub-clause (ii) of Clause (6) of Section 62A of the Calcutta Act and sentenced to pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for one month.
8. It is contended for the petitioner that the Commissioner's orders of the 4th August were illegal because they were addressed to the petitioner personally and are not orders within the scope of Clause (4). That clause, it is argued, enables the Commissioner of Police, when he considers it necessary for the preservation of the public peace and the public safety, to prohibit a procession or public assembly; but does not enable him to forbid individuals to join any procession or public assembly which may be formed or held. In our view, there is reason and force in that argument. A. power, such as that conferred by Clause (4), must be exercised strictly according to the terms of the statute. It is one thing to say that a procession will not be allowed and quite another thing to say that if a procession is formed, particular individuals are not to join therein. We are of opinion that the law does not give the Commissioner power to discriminate between individuals in this way. It was suggested by the learned Standing Counsel for the Crown that the Commissioner might prohibit a procession in which a certain person should take part, if he considered that the presence of such person would be dangerous to the public peace or safety. Assuming that to be so, it is not what the Commissioner did. If regard be had only to his orders of the 4th August, no member of the processions, formed on the 7th August, disobeyed those orders except the petitioner. The processions were not prohibited, but the petitioner was prohibited from taking part in them.
9. Whatever may be said, however, as to the orders of the 4th August and the first of the two processions which took place on the 7th August, we are clearly of opinion that in forming and heading the second procession, the petitioner disobeyed the Commissioner's order of the 5th August, a perfectly good and valid order and in so doing committed the offence of which he has been convicted.
10. As to the suggestion that public notice of the order of the 5th August should have been given in the manner provided by Section 102A of the Calcutta Act and Section 49A of the Suburban Act, these sections only lay down the procedure to be followed when public notice is required to be given by some other provision in the respective Acts. The clause now in question requires that an order made thereunder should be in writing but does not require that public notice should be given of it. As we have mentioned, it is not disputed that the order of the 5th August was brought to the petitioner's knowledge.
11. It was further suggested that the clause in question is ultra vires of the Indian Legislatures. The Rule was not issued on this ground which was not fully argued. We may say, however, that we see no reason to doubt that the Indian Legislatures are Competent to make Police regulations of this kind in the interests of the public peace and safety.
12. The result is that the Rule must be discharged.