Patna High Court
Brahmanand Lal And Ors. vs The State on 23 December, 1958
Equivalent citations: AIR1959PAT425, 1959CRILJ1100, AIR 1959 PATNA 425, ILR 38 PAT 544
JUDGMENT Misra, J.
1. These are seven applications in revision against the conviction of the petitioners on various dates in different parts of the State of Bihar for violation of the provisions of Section 9 (2) of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950 hereinafter called "the Act") for which they were proceeded against under Sub-section (5) of Section 9 of the Act. The learned Magistrate in each case passed appropriate sentence upon the petitioners. They appealed against the convictions and sentences and their appeals were dismissed on the point of their convictions, but certain modifications were made in some instances with regard to the sentence.
The petitioners have come up to this Court seeking a revision of the orders and for setting aside the convictions and sentences concerned. All the applications involve, apart from the few individual points, a common question of the validity of Sub-section (2) of Section 9 of the Act as also the notification issued by the Government of Bihar, in pursuance of Sub-section (2) of Section 9, being notification No. A/A/204/51-C-8006, dated 29-6-1951. According to the learned counsel for the petitioners, the individual question for consideration would be the adequacy of the finding recorded by the Courts below as to whether what the petitioners concerned participated in was merely a procession or a public procession and, if the finding merely amounted to their participation in a procession and not necessarily in a public procession, whether the convictions of the petitioners on such finding would be sustainable.
2. Mr. B. C. Ghose, who appears in support of the applications in Criminal Revision Nos. 119 of 1954, 169 of 1956, 183 of 1956 and 838 of 1957, has referred to a number of decisions of the Supreme Court as also of this Court and other High Courts in support of his contention that Sub-section (2) of Section 9 of the Act as also the notification referred to above must be held to be invalid in view of the provisions of Arts. 14 and 19 of the Constitution of India. He has referred to the case of Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh, AIR 1954 SC 224. That case relates to the validity of the Uttar Pradesh Coal Control Order, 1953, Clauses 4(3) and 7 and 8. According to the provisions of that Order, unrestricted power had been given to the State Controller to restrict trade in coal to persons who held a licence from the Coal Controller.
Their Lordships of the Supreme Court held that this amounted to imposing an unreasonable restriction upon the freedom of business and trade guaranteed under Article 19 (1) (g) of the Constitution and did not come within the protection of Clause (6) of the Article. Mr. B. C. Ghose has relied upon the principle of that case in support of his contention that in the present instance also the Legislature has conferred unrestricted power upon the State Govvernment or upon the authority to be designated by that Government for prohibiting public processions. The power conferred is thus unreasonable and arbitrary. There is no check upon the discretion of the authority issuing a licence to allow a public procession to be taken out, nor is these any procedure provided for obtaining a redress. He has referred in this connection, in particular, to the following observation in that judgment:
"No rules have been framed and no directions given on these matters to regulate or guide the discretion of the licensing officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as, a check upon injustice that might result from improper execution of the same. Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasoas for what he does.
This safeguard, in our opinion, is hardly effective; for there is no higher authority prescribed in the Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons, therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person.
It was pointed out and with perfect propriety by Mr. Justice Matthews in the well-known American case of Yick Wo v. Hopkins ((1885) 118 U. S. 356 at p. 373), that the action or non-action of officers placed in such position may proceed from enmity or prejudice, from partisan zeal or animosity, from favouritism and other improper influences and motives which are easy of concealment and difficult to be detected and exposed, and consequently the injustice capable of being wrought under cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation.
In our opinion, the provision of Clause 4 (3) of the Utter Pradesh Coal Control Order must be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19 (1) (g) of the Constitution and not coming within the protection afforded by Clause (6) of the article."
In my opinion, however, that being a case relating to freedom of trade guaranteed under Article 19(1)(g) of the Constitution, the principle thereof will not apply to the facts of the present case. I am inclined to draw a distinction between cases which fall under this clause and cases in which the Legislature has provided for assumption of power by the Government, or the authority appointed by that Government, for imposing certain restrictions in the interest of public order. The cases cited by Mr; B. C. Ghose, therefore, relating to other clauses, apart from Articles 19(1)(b) and 19 (1) (d), stand as a class by themselves. The other class, in my opinion would be of cases wherein the enactment concerned is the Preventive Detention Act as also Acts for the maintenance of public order.
The latter class of cases stands on a different footing and has been recognised judicially as being governed by principles which are not in pari materia with the principle applying to cases relating to restrictions on trade. Learned counsel has accordingly referred to the case of State of Madras v. V. G. Row 1952 SCR 597 : (AIR 1952 SC 196). That case bears on the question of the validity of Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, as amended by Indian Criminal Law Amendment (Madras) Act 1950, including within the definition of "unlawful association", an association which had been declared by the State by notification in the Official Gazette to be unlawful on the ground "that such association constitutes a danger "to the public peace, or has interfered or interferes with "the maintenance of public order or has such interference "for its subject etc., etc." Patanjali Sastri, C.J. in that case drew a distinction between the principle underlying an unlawful association and that underlying preventive detention. Referring to the latter the learned Judge referred to Gopalan v. State of Madras 1950 SCR 88 : (AIR 1950 SG 27) and observed thus :
"In the case of preventive detention, no doubt this Court upheld in Gopalan's case deprivation of personal liberty by such means, but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of Article 21. As pointed out by Kama C. J. at page 121, quoting Lord Finlay in Rex v. Hallidav 1917 AC 260 at p, 269, the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based."
Further on, the learned Judge while referring to Dr. N. B. Khare v. State of Delhi 1950 S. C. R. 519 : (AIR 1950 SC 211) drew the following distinction :
"We consider that that case is distinguishable in several essential particulars. For. one thing, externment of individuals, like preventive detention, 59 largely precautionary and based on suspicion. In fact, Section 4(1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. Khare's case, authorised both preventive detention and externment for the same purpose and on the same ground namely, 'with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc."
I think it unnecessary to refer to the other grounds on which the Madras Criminal Law Amendment Act, 1950, relating to Section 15 (2) of the Indian Criminal Law Amendment Act, 1908, was held to be ultra vires the Madras Legislature as constituting a violation of Article 19(1) (c) (4) of the Constitution. It is enough to emphasise that a distinction had been drawn in that case between various rights guaranteed under Article 19 of the Constitution to the Indian citizens as also the limits of reasonable restrictions to be placed on the exercise of such fundamental rights. It is, no doubt, true that preventive detention, however objectionable otherwise under conditions of peace prevailing in the country, has been held to be justified under Article 21 which incorporates a specific provision for preventive detention in the Chapter dealing with fundamental rights.
Public order involving the consequence of externment of individuals is not included in Article 21, yet externment of individuals being a matter of a precautionary character based on suspicion has been put in the same category as preventive detention. It is obviously so, because it involves the maintenance of law and order and the security of the citizens as a class which mav be threatened in certain circumstances by men inclined to do mischief and which may involve anticipatory action based on suspicion. The same principle has been reiterated in the case of Virendra v. State of Punjab 1958 S.C.J. 88 : ((S) AIR 1957 SC 896).
That was a case in which Section 2 of the Punjab Special Powers (Press) Act was challenged by the editor, printer and publisher of two papers from Jullundur and New Delhi, viz., The Daily Pratap and Vir Arjun. A grievance was made that the powers conferred upon the Government of the Punjab under the aforesaid Act constituted a violation of the rights guaranteed to the citizens by Articles 19 (1) (a) and 19 (1) (g) of the Constitution. It was observed in that connection as follows :
"It is next said that an executive officer may untruthfully say, as a matter of form, that he has been satisfied and there is nothing in the section which may prevent him from abusing the power so conferred by these sections. But, as pointed out in Khare's case, 1950 S.C.R. 519: (AIR 1950 SC 211), the exercise of discretionary preventive power to be exercised in anticipation for preventing a breach of the public order must necessarily be left to the State Government or its officers to whom the State Government may delegate the authority. No assumption ought to be made that the State Government or the authority will abuse the power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of power,"
It is thus clear that a law of an anticipatory character for preventing a breach of the public order has been placed on a footing which is different from restriction imposed on carrying on trade etc., and as such Sub-section (2) of Section 9 of the Act also must be tested in that light. It appears to me that, as it is, the principle in Dr. Khare's case (1950 SCR 519: (AIR 1050 SC 211)) is still good law so far as a legislative provision relating to the maintenance of public order is concerned. Mr. B. C. Ghose urged that the above case was overruled in the case of AIR 1954 SC 224 -- Uttar Pradesh Coal Control Order case. That is an incorrect submission as is clear from the extract from Virendra's case 1958 SCJ 88 : ((S) AIR 1957 SC 896). A reference may be made in this connection to the decision of this Court in Inderdeo Singh v. The State AIR 1951 Pat. 242. That is a Division Bench decision of this Court constituted by Das and Sinha, JJ. In that case also a similar question arose with regard to the validity of Section 9 in a similar context and it was held that the restriction imposed by the Bihar Maintenance of Public Order Act, so far as it relates to public procession etc., was not unreasonable and did not constitute a violation of the fundamental right guaranteed under Article 19 (1) (b) (3) of the Constitution of India.
Learned counsel for the petitioners endeavoured to distinguish this decision on the ground that this decision preceded the pronouncement of the Supreme Court in other cases subsequent to it and particularly the Uttar Pradesh Coal Control Order case and that it rested upon the principle of the decision of the Supreme Court in Dr. Khare's case 1950 SCR 519 : (AIR 1950 SC 211), which was overruled. I have already pointed out that the principle in Dr. Khare's case 1950 SCR 519: (AIR 1950 SC 211) is still good law so far as the maintenance of public order is concerned and, accordingly, I hold that the principle in Inderdeo Singh's case AIR 1951 Pat 242 will be applicable to the consideration of the validity of subsection (2) of Section 9 of the Act in the present context as well.
3. It has next been urged that Section 9(2) should be held to be ultra vires the Bihar Legislature as constituting a violation of Art. 19(1), also, for this reason that the present Act originated in the promultation of the Bihar Maintenance of Public Order Ordinance No. IV of 1946. The Ordinance was replaced by Act V of 1947. It was extended from year to year. It was in 1949 when Federal Court declared certain provisions of the Act to be ultra vires in the case of Jatindra Nath Gupta v. Province of Bihar 1949-11 FCR 595; (AIR 1949 FC 175) that on 3-6-1949, the Governor of Bihar promulgated Ordinance No. II of 1949.
The same was also declared to be ultra vires in the case of Bidya Chaudhury v. Province of Bihar ILR 28 Pat 775 : (AIR 1950 Pat 19). This was then followed by Ordinance No. IV of 1949 promulgated on 22-6-1949. It was then substituted by the Bihar Maintenance of Public Order Act (Act III of 1950) on 4-1-1950. It was amended from time to time and by Act XX of 1951 on 6 6-1951, Section 9 of the Act was amended. Thereafter, it is being extended every two years. The Act, therefore, which might be justified in an emergency now purports to be a permanent Act which amounts to deprivation of the freedom of peaceable assembly and movement of the citizens of Bihar in a permanent manner, although such restriction, in order to be reasonable, can be justified only when an abnormal situation demands it.
In ray opinion, there is no substance in this contention. The Legislature has not placed this Act on the statute book as a permanent legislative measure but the situation is reviewed every two years to find out whether the extension of the Act for a further period would be justified in the circumstances. If the Legislature, therefore, which is in the best position to know the conditions of law and order prevailing in the State, is satisfied that a further extension of the Act is warranted, it is not for the law court to say that it should not have been extended. If the Legislature consisting of the representatives of the people coming from different constituencies in the State is satisfied about the desirability of the imposition of the restriction for a particular period, its legislative judgment must be held to be supreme and on this ground the provision cannot be struck down as invalid and ultra vires as violating Article 19 (1) (b) (d) of the Constitution of India.
4. Learned counsel has also urged that, in any view; there being no provision for appeal to and review by a State Government against the order passed by the District Magistrate to whom the power to grant licence has been delegated, the provision cannot be justified. Apart from the fact that a similar provision in Ordinance 2 of 1949 considered by a Division Bench of this Court in Inderdeo Singh's case AIR 1951 Pat 242 was upheld, I am further of opinion that there being a distinct prevision in Section 9 (2) that the authority entrusted with the exercise of the power to grant or refuse licence for taking out a public procession can refuse the prayer for grant of licence only after recording reasons therefor, this is an adequate safeguard against the misuse of power.
Although there is no provision for an appeal to the State Government, the refusal being an administrative act, as contended by Mr. B. C. Ghose, on behalf of the petitioners, there is no reason why, in case of arbitrary refusal of licence, the matter cannot be agitated and taken up with the higher executive authorities in the Government. The reference to observations in some of the judgments of the Supreme Court that the absence of the provision for appeal to the State Government would make the exercise of power by a subordinate executive authority unreasonable, does not necessarily mean that where no such distinct provision is made the law otherwise reasonable must be held to be bad if it impinges upon the fundamental right guaranteed under tha Constitution of India.
In such a case, the petitioner may have a remedy even by way of an application for grant of a writ or direction. The case of AIR 1954 SC 224: 1954 SCR 803, does not lay down that a writ will not lie. It is, however, unnecessary to go into this) question in detail in deciding the merits of the instant applications. As has been observed by S. R. Das, C. J. in Virendra's case 1958 SCJ 88: ((S) AIR 1957 SC 896), what will be struck down in such a situation is not the legislative provision itself but the abuse of the Dower in a particular instance! granted under such provision. I am, therefore, satisfied that Section 9 (2) of the Act is valid and the decision of this Court in the case of Nabi Hussain v. The State, Cri Revn. Nos. 177 and 578 of 1952, by Ja-muar and Rai, JJ., dated 11-9-1952, lays down the law correctly, and I see no reason to differ in the conclusion in the above two cases. The decision in the case of (1885) 118 US 356 rests upon its own facts and it is unnecessary to refer to it in view of the decisions of the Supreme Court in India and the other decisions of this Court to which I have referred above.
5. Learned counsel has next urged that, in any case, the notification issued by the Government of Bihar (No. A/A/204/51-C-8006) is ultra vires and in excess of the power conferred on the State Government under Section 9 of the Act. In support of this contention, he has urged that Sub-section (2) of Section 9 relates to public procession whereas the notification which is in these terms :
"No. A/A/204/51-C-8006 (29-6-1951) -- In exercise of the powers conferred by Sub-section (2) of Section 9 of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950), and for the purpose of the maintenance of public order, the Governor of Bihar is pleased to direct that no procession shall be permitted in any area or place in the State unless an application for license for the same has been made to the District Magistrate in accordance with the rules published under notification No. A/D8/1018/ 51-C-7669, dated 20-6-1951 in the Bihar Gazette, Extraordinary, dated 22-6-1951, and the license has been obtained."
refers to all processions. The notification thus being in excess of the power conferred on the State Government by the Legislature, must be held to be bad in law, He has referred to the case of Ramkhelawan Poddar v. The King, AIR 1951 Pat 418. That case relates to the validity of the notification issued under Section 6 (1) of the Bihar Maintenance of Public Order Ordinance (IV of 1946). The petitioners in that case were prosecuted before a Magistrate on the allegation that they had assembled in uniforms to hold R. S. S. parade. They were convicted under Section 6 (4) of the Ordinance and sentenced. Ramaswami, J. (as he then was) referring to the notification dated 14-11-1946, held that the notification prohibited any meeting or procession without the sanction of the District Magistrate or Additional District Magistrate, whereas Section 6 of the Ordinance provided for prohibiting, restricting or imposing conditions upon the holding or taking part in public processions, meetings or assembly.
The notification thus exceeded the ambit of Section 9 of the Ordinance; as such it was ultra vires, and the petitioners should not be deemed to have committed any offence by violating that notification. That case made reference to an unreported decision of this Court (Criminal Appeal No. 270 of 1948, Ram Khelawan Singh v. The King), decided on 8-12-1948, by Agarwala, C. J. Mr. G. P. Sahi, appearing for the State, has, however, contended that even assuming that the notification in question in the present case has used the word "procession", which is made subject to the grant of licence, but Section 9 (2) has empowered the State Government to subject public processions only to the condition of a grant of the licence. the entire notification cannot be held to be invalid on that ground.
It may be ultra vires in so far as private processions as opposed to public processions are concerned. That however, would not justify the Court an holding that the entire notification is bad as it is subject to Section 9 (2) o£ the Act with which it is to be read. Learned counsel for the petitioners, however, has contended that this argument would be legitimate only where the part which is held to be ultra vires is separate and severable from the part which is valid. Where, however, the language employed is such that no such distinction can be drawn, the entire provision should be struck down.
In the case of Virendra referred to above 1958 SCJ 88: ((S) AIR 1957 SC 896), S. R. Das, C. J. referring to such a situation has approved "that if the language employed in the impugned law is wide enough to cover restriction both, within and outside the limits of constitutionally permissible legislative action affecting the guaranteed fundamental rights and so long as the possibility of the statute being applied for purposes not sanctioned by the Constitution cannot be ruled out the sections must be struck down as ultra vires the Constitution." But in the case before their Lordships it was held that the language used in Section 2 of the impugned Act quite clearly and explicitly limited the exercise of the powers conferred to the purposes specifically mentioned in the section and to no other purpose. In my opinion, however, the contention raised on behalf of the State by Mr. G. P. Sahi cannot be ruled out as being devoid of force.
In the present instance, however, I am not inclined to go against the pronouncement in Ram Khelawan Poddar's case, AIR 1951 Pat 418, which is a Division Bench decision of this Court, particularly in view of the fact that although this case was decided in 1949 and was reported in AIR 1951 Pat 418 and although the State Government had occasion to consider the matter when the duration of the Bihar Maintenance of Public Order Act had to be extended from time to time, the notification stood in the same form as before and, accordingly, following the principle in Ram Khelawan Poddar's case, AIR 1951 Pat 418, it must be held that the notification mentioned above is ultra vires the provisions of Sub-section (2) of Section 9 of the Act, and the petitioners cannot be held to have committed any offence for violation of the prohibition contained in the aforesaid notification. In Nabi Hussain's case Cri. Revn. Nos. 177 and 578 of 1952 (Pat) cited above, the argument with regard to the validity of the notification was not raised and considered.
6. The facts of the cases giving rise to the various applications, briefly stated, are as follows :
7. In Criminal Revision No. 119 of 1954 the petitioners are alleged to have taken out a procession on 30-11-1953. in the coal-fields in Dhanbad in violation of Government Notification No. A/DB/ 1018/51-C-7669, dated 20-6-1951 and No. A/A/204/ 51-C-8006. dated 29-6-1951, under the Bihar Maintenance of Public Order Act. On 8-12-1953, they were sentenced to simple imprisonment for three months by the learned Subdivisional Magistrate of Dhanbad. The learned Sessions Judge, Manbhum-Singhbhum, summarily dismissed the appeal. The present application is directed against the conviction and sentence of the petitioners.
8. In Criminal Revision No. 183 of 1956, there are four petitioners. They were alleged to have taken out a procession on 13-1-1954, in contravention of Bihar Governor's order contained in Notification No. A/A/204/51-C-8006, dated 29-6-1951, without a licence. They were convicted under Section 9(5) of the Act and sentenced to undergo rigorous imprisonment for six months as also to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for three months each. The appeal preferred by them was dismissed by the learned Additional Sessions Judge, but the sentences passed upon them were reduced to rigorous imprisonment for two months and a fine of Rs. 100/- each, in default, rigorous imprisonment for one month more.
9. In Criminal Revision No. 169 of 1956, there are five petitioners. They were alleged to have taken out a procession without licence on 25-1-1954, at Chas in violation of the aforesaid notification under the Bihar Maintenance of Public Order Act. They were prosecuted accordingly under Section 9 (5) of the Act and sentenced by the trying Magistrate to rigorous imprisonment for six months and a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for three months more. The appeal preferred by them was dismissed by the learned Additional Sessions Judge, but the sentences passed upon them were reduced to rigorous imprisonment for two months and a fine of Rs. 100/-, in default, rigorous imprisonment for one month more.
10. In Criminal Revision No. 838 of 1957, there are three petitioners who were alleged to have taken part in a public procession at Jayanagar on 26-11-1955, in violation of Section 9 (2) of the Act. They were tried and convicted. The sentence passed by the learned Magistrate was rigorous imprisonment for a period of two months. The appeal preferred by them was dismissed by the learned Sessions Judge.
11. In Criminal Revision No. 765 of 1956, the only petitioner was charged with having taken out a public procession without a licence on 26-4-1955, in front of the Inspection Bungalow at Mathon where the President of India was staying on that day. He was sentenced to undergo simple imprisonment for a period of two months by the Subdivisional Magistrate, Dhanbad. On appeal, the learned Additional Sessions Judge upheld me conviction but reduced the sentence to simple imprisonment for one month only,
12. In criminal Revision No. 580 of 1956, there are five petitioners all of whom were alleged to have joined the public procession at Tatanagar railway station on 7-5-1956. They were convicted and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 30/- each, in default, to undergo further simple imprisonment for one week each. The appeal preferred by them was dismissed by the learned Sessions Judge.
13. In Criminal Revision No. 809 of 1957, there are four petitioners. They were alleged to have taken out a procession on 13-6-1956, on the Arwal-Paliganj Road. They were convicted by the Judicial Magistrate, Jehanabad, and sentenced to undergo rigorous imprisonment for one month each and also to pay a fine of Rs. 25/- each, in default, further rigorous imprisonment for fourteen days each. The appeal preferred by them was dismissed by the Additional Sessions Judge.
14. Thus, the common question involved in all the cases was the same, that is, the validity of Section 9 (2) of the Bihar Maintenance of Public Order Act, 1951 and the notification issued in pursuance of that provision.
15. The only specific point raised is that in Criminal Revision No. 119 of 1954, there is no finding that the petitioners took part in a public procession. Likewise, in Criminal Revision Nos. 580 of 1956, 838 of 1957 and 765 of 1956 there is no clear finding that the petitioners took part in a public procession. On this ground also the convictions cannot be sustained. It is, no doubt, true that if the contention of the petitioners had not succeeded in regard to the nature of the notification issued under Section 9 (2) of the Act, and if the same had been held to be valid, the convictions and sentences passed upon the petitioners in these cases, where there is no pecific finding recorded by the appellate Court with regard to the procession in which they took part as being public procession, would have been set aside even on this ground. As it is, however, I have held above that the petitioners' contention is correct that the notification issued by the Government of Bihar under Section 9 (2) of the Act is ultra vires, being beyond the scope of the section.
16. The other points raised have not been gone into as the petitioners are being acquitted on the ground of the invalidity of the notification aforesaid.
17. The applications must succeed. The convictions and sentences passed upon the petitioners are set aside and they are acquitted. Rule issued in all the petitions is made absolute.
U.N. Sinha, J.
18. As these applications can be disposed of without deciding the validity of Section 9 (2) of Bihar Act III of 1950, I would like to leave open the question as to the validity of that section.
But in view of the principle laid down in the case of AIR 1951 Pat 418, I agree that the convictions of all the petitioners should be set aside and the rules issued by this Court made absolute.