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 cl. (4) of sec. 62(A) of the Calcutta Police Act (Act IV B.C of 1866) end cl. (4) of sec. 39(A) of the Calcutta Suburban Police Act (Act II B.C of 1866). The two sections are identical terms and were inserted in the Acts referred to by the Calcutta and Suburban Police (Amendment) Act (Act III B.C of 1910).
Cl. (4) runs as follows:—
“The Commissioner of Police may also, by order in writing, prohibit any procession or public assembly whenever and for so long as has 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.”
The facts of the case are these. The Petitioner, Leakat Hussain, 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 lie should) prohibit any procession or public assembly in, which you, Leakat Hussain, have or may have any concern whatsoever on the 7th of August 1912, within the town and suburbs of Calcutta, the Commissioner of Police in pursuance of the provisions of sec. 62(A), cl. (4) of Act IV of 1866, B.C, and sec. 39(A), cl. (4) of Act II of 1866, B.C, as modified up to the 1st June, 1910, hereby prohibit you the said Leakat Hussain, 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.”
On the same day, i.e, 4th August, 1912, the Commissioner of Police passed a further order requiring the said Leakat Hussain to comply with the order above set out.
The two orders were admittedly served on Leakat Hussain personally.
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 dap, the Commissioner of Police, in pursuance of the provisions of sec. 62(A), cl. (4) of Act IV of 1866 and sec. 39(A), cl. (4) of Act. II of 1866, B.C, as modified up to the first June 1910, hereby prohibits any procession or 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 of 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 7 a.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 ??? were illegal and he refused to disperse the procession. The Inspector asked him to disperse it and showed him another order of the Commissioner, Ex. 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 Upeudra Nath Chowdhury 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. Lowman with Inspector Mulcahy came up. The processionists shouted out “Banda 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 Sukea Street where it was stopped and dispersed by Inspector Fazal.”
On these facts the Petitioner hag been convicted under sub-cl. (ii) of cl. (6) of sec. 62A of the Calcutta Act and sentenced to pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for one month.
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 cl. (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 cl. (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 he 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 Hiking part in them.
Whatever may be said, however, as to the orders of the 4th August and the first of the to processions which took place on the 7th August, we are clearly of opinion that in forming and leading the second procession the Petitioner disobeyed the Commissioner's older of the 5th August, a perfectly good and valid order, and in so doing committed the offence of which he has been convicted.
As to the suggestion that public notice of the order of the 5th August should have been given in the manner provided by sec. 102 of the Calcutta Act and sec. 49A of the Suburban Act, these sections only lay down the procedure to be followed when public notice is inquired to be given by some other provisions 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.
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.
The result is that the Rule must be discharged.
S.C.M
Rule discharged.