1. The applicants have been convicted under S. 296, Penal Code, and sentenced to fines. On the evening of 26th August 1941 some of the Hindus of Chanda took out a procession in which they were carrying the idol of Shri Ganesh to the place of installation. The public road along which they were proceeding passed the Jumma Musjid. The procession reached the mosque at 2 minutes past 7. The station house officer (P.W 6) asked the procession to stop their music while they went past the mosque. At this the musical efforts of the procession were redoubled. They went past the mosque with loud music at about 5 minutes past 7 and caused much disturbance to the evening prayers which were then in progress in the mosque. These are the findings of fact of the lower Courts and must be accepted in revision. The first contention in this Court is that the Hindus had an inherent right to play music on a public road and that they committed no offence even if they did disturb the Muslim prayers. On 18th February 1930 the District Superintendent of Police passed an order prohibiting any procession to pass the local mosques with music within the hours of prayer. Those hours included the hour 6-30 P.M to 7-30 P.M By that order a procession wishing to pass a mosque during those hours had to do so without music and the music had to stop 40 paces from the mosque and was not to be recontinued until the procession had left the mosque 40 paces behind.
2. On 31st July 1941 there was a consultation between the District Magistrate and the leaders of the Hindus and Mahomedans regarding the procession which the Hindu Mahasabha proposed to take out on 1st August.
3. In his order of 31st July 1941, the District Magistrate stated that in accordance with the usual practice the procession would not be allowed to pass in front of mosques during actual prayers. The Kazi of Chanda stated that on 1st August the Mahomedans would be having their prayers from 7 P.M to 7-20 P.M and the Hindus agreed to take out their procession with music either before 7 P.M or after 7-20 P.M That order prima facie dealt only with the procession that was to be taken out on 1st August. In the appellate Court it seems to have been admitted that the District Magistrate's order was not a legally enforceable order but was merely the record of an agreement between the parties. The prosecution and conviction of the applicants were based on the order of the District Superintendent of Police dated 18th February 1930. If that was a valid order, then the conviction of the applicants must stand, whether that order was modified by the District Magistrate's order of 31st July 1941 or not, for the conduct of the applicants amounted to a breach of either order. Under Section 30(4) of the Police Act, the District Superintendent of Police may regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies. It has been suggested that the power to regulate does not include the power to stop music, and I have been referred to the decision in A.I.R 1929 ALL. 201.1 That decision is clearly distinguishable because there the order was that no procession with music should pass within the inhabited parts of the city. Here the order was that no procession with music would be allowed to pass within 40 paces from the mosque, and that is clearly a regulation that falls within the ambit of S. 30(4).
4. It has also been contended that the District Superintendent of Police had no power to pass an order regulating the extent to which music could be used on future occasions, and I have been referred to the decision in 58 Cal. 879.2 That however was a decision on sub-s. (2) of S. 30 which is very differently worded from sub-s. (4). Sub-section (4), in my opinion, clearly gives the District Superintendent of Police a right to regulate the extent to which music may be used in the streets on future occasions, and it is not necessary for him to pass a separate order ion every occasion. Reliance has been placed by the applicants on S. 79, Penal Code, which provides that nothing is an offence which is done by any person who is justified by law or who, by reason of a mistake of fact, in good faith believes himself to be justified by law in doing it. As I have shown, the applicants were not justified by law in doing what they did, because they were committing the breach of a vaild order, and there was no mistake of fact on their part. Lastly, it has been contended that, as the applicants were themselves engaged in the performance of religious worship or religious ceremonies, they cannot be convicted of causing disturbance to another different community. There is, in my opinion, nothing in S. 298, Penal Code, to justify that interpretation. The convictions are therefore upheld and the application for revision is dismissed.
5. Application dismissed.
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