B.P. Banerjee, J.
1. This instant writ application has been moved on behalf of Bamnabadn Sarvajanik Durgapuja Committee situated in to Rani Nagar Police Station in the District of Murshidabad against a prohibitory order under Section 144 Cr.P.C. passed by the Sub-Divisional Magistrate, Lalbagh District Murshidabad at q the instance of the Office-in-Charge of Ranilf Nagar Police Station, by which the petitioners and others were prevented from taking out of immersion procession of Goddess Durga and do passing in front of two mosques in the village Bamnabad of that Police Station playing with music or musical instruments. As a result of the aforesaid prohibitory order, petitioners alleged that they were prevented from taking out immersion procession on the Bijaya-dashami Day i.e. on 4th Oct. 1984 or soon thereafter with the playing of drums and other traditional musics which are used in such religious ceremony. It is stated that the said image of Goddess Durga is still lying in the village pandal and had not been immersed as yet.
2. It was contended by Mr. Dutta Majumdar that right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution and that the police or the Sub-Divisional Magistrate by executive order cannot abridge or interfere with such fundamental rights. Article 25 of the Constitution provides that subject to public order, morality and health and to the other provisions of Chap. III of the Constitution all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagated religion. Articles 25 and 26 of the Constitution guarantee the right to practice and propagate not only matters of faith or belief but also all the rituals and observances which are regarded as integral parts of Religion by the followers of a particular religion or sect thereof. The preamble of the Constitution also mentions the liberty of worship to all the people of India.
3. The freedom of free profession, practice and propagation of religion as guaranteed under Article 25 of the Constitution is only subject to the interest of public order so that it would not authorise the outrage of the religious feelings of another class with a deliberate intent.
4. In the instant case it is an integral part of religious practice of a section, Hindu religion play drums and other instruments at the one of taking out immersion ceremony and least this is being followed from time memorial and the same cannot be law fully nterfered with by any person. It was held by the Supreme Court in Gulam Abbas v. State of Uttar Pradesh reported in AIR 1981 SC 198 : 1981 Cri LJ 1835 that the entire basis of action under Section 144 of the Criminal P.C. is provided by the urgency of the situation and the power there under it is intended to be availed of for preventing disorders,obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. The preservation of public peace and tranquillity is the primary function of the Government and the aforesaid power under Section 144 is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the executive magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly, lawful in themselves, for, it is obvious that when there is a conflict between public interest and private rights, the former must prevail. The exercise of such power must be in aid of legal rights and against those who interfere with the lawful exercise thereof and even in cases where there were declared or established rights, thepower should not be exercised in a manner that would give material advantage to one arty to the dispute over the other but in a fair anner ordinarily in defence of legal rights if there be such and the lawful exercise thereof ther than in suppressing them. In other vords, the magistrate's action should be directed against the wrong-doers rather than pronged.
5. The right of the citizens to take out i processions flows from the right in Article 19(1)(b) to assemble peacefully and without arms and the right to move anywhere in the territory of India. A restraint on the right to take out procession under the circulars is a restriction. The reasonableness of the restriction is the guiding factor.
6. The proper course as held by the Supreme Court in the aforesaid case was for the Magistrate to ascertain which party was in the wrong and was interfering with a legal exercise of the legal rights of the other party I and to bind down that party restraining them from committing any act which may lead to a breach of peace.
7. In the instant case, a section of the Hindu Community was going to exercise their customary and religious rights through the public streets. In the instant case, the power of the Magistrate should have been exercised to defend the established religious right of a section of Hindu religion of taking out an immersion procession with the image of Goddess Durga playing musical instruments and drums and to secure such rights should have restrained the people of the other community from creating any disturbances. But instead, the learned Magistrate has prohibited and suspended such fundamental rights of a section of a religious community as aforesaid. The Magistrate had no right and/or jurisdiction and/or authority under Section 144 of the Criminal P.C. to interfere with such rights guaranteed under Article 25 of the Constitution and that in the facts and circumstances of the case, it appears that the said prohibitory order passed by the learned Magistrate had the direct effect of encouraging and supporting of the wrong-doers against the persons wronged and creating dissatisfaction amongst one section of the community against the other. If the mosques are situated by the side of public roads, such procession with such ceremonial and/or traditional playing of drums and musical instruments can pass as a matter of night and the people of the other religion and/or section thereof cannot have any objection and/or lawful excuse. It is well established that playing of musical instruments near mosques are not at all contrary to any of the religious rights of the people of that community and if any person belonging to any other religion or community intends to obstruct such lawful procession with the image of Goddess Durga with playing drums and musical instruments, it was the duty of the Police to apprehend those persons and to proceed against them-for creating breach of peace and communal harmony. It would be contrary to the concept of secularism if the fundamental right to freely profess, practice and propagate religion guaranteed under Articles 25 and 26 of the Constitution are allowed to be interfered with by an order under Section 144 of the Criminal Procedure Code in the facts and circumstances of the case. Secularism does not and cannot mean that the law enforcing, authority should try to abridge or take away such fundamental rights guaranteed under Constitution of India in such a cavalier fashion. The police authorities who are there to maintain law and order, instead of ensuring law and order, approached the learned Magistrate for an order under Section 144 of the Criminal P. C, for encroaching upon, the right' of the petitioner guaranteed under Articles 25 and 26 of the Constitution. If the Police authorities had a feeling that there may be an apprehension of breach of peace, the Police Authorities should have taken steps in accordance with law by obtaining a prohibitory order against the persons concerned who intended to create such obstruction and disturbance in the matter of practice of such religious rights. In the instant case, the action of the Police Magistrate and police authorities had forced the petitioner to keep the image of the Goddess Durga in the village pandal till today which is likely to create ill-feeling and great dissatisfaction amongst a section of the Hindu people in the locality against a section of the people of the other community. What the police authorities did in the name of maintaining peace and communal harmony and for maintaining law and order is something which had become a constant source of creating a highly prejudicial atmosphere in the locality which is bound to disrupt the communal peace and harmony.
8. Accordingly, I hold that the order of the learned Police Magistrate was wholly unwarranted and unjustified in the facts and circumstances of the case. I also hold that the Officer-in-charge of the police station had taken steps which were contrary to the steps which were required to be taken in the facts and circumstances of the case. It is a clear case that the action of the police authorities and the learned Police Magistrate had directly affected fundamental rights guaranteed under Articles 25 and 26 of the Constitution by forcing a section of the Hindu religious community not to perform their traditional and/or religious rights in the matter which might have fomented ill-feeling and disrupted communal harmony. It should have been the endeavour of the police authority and the Magistrate and all concerned to see that communal harmony should not have been disrupted inasmuch unless the communal harmony is maintained and any attempt to disrupt such communal feeling is nipped into the bud, the avowed object of the Constitution makers make this country a secular State would fail, I am constrained to hold that as the people of the other community could not make any lawful complaint in the matter of taking out sucl immersion procession with the image Goodess Durga with playing muslca instruments and drums, the police authorities acted in a reckless manner in rushing to the court and obtained a prohibitory order in the matter. It also appears that the learnec Magistrate also without application of mine and without appreciating the correct lega position and the consequences that might have followed for passing such an order, passed the prohibitory order under Section 144 of the Criminal P.C. it also appears that the said order.under Section 144 of the Criminal P.C. had spent up it force by lapse of time :
8A. In the facts and circumstances aforesaid, the application is allowed and the said order under Section 144 of the Criminal P. C, passed by the learned Sub-Divisional Magistrate, Lalbag, District Murshidabad is quashed, Let a writ in the nature of certiorari do issue quashing the said order and let a writ in the nature of mandamus commanding the officer of the Rani Nagar Police Station to take immediate steps and render all possible assistance so that the petitioners can take out the immersion procession with the immage of Goddess Durga for immersion in the river Padma playing the traditional musical instruments and drums and for that purpose I direct, the said respondents to post police pickets and I further direct the Officer-in-Charge of the police station to supervise the said procession with adequate number of polio officers and to take steps against person persons concerned who may resist and/ create disturbances in the matter. Sue. immersion ceremony is directed to take plac as early as possible not later than 10 days froi the date of the communication of this order the said respondent. On the prayer of the learned Advocate appearing for the State and as a special case and considering the peculiar facts and circumstances of the case, I direc that such procession should not pass by the side of the mosques on Friday noon when mass prayers are made in the mosques concerned, so that the right of the people of the other community to hold mass prayer on Friday noon is not interfered with and/or any hindrance is caused to their religious rights.
9. There will be no order as to costs.
10. Let the plain copy of the ordering portion be given to the learned Advocates forthe petitioners.