DEBNARAYAN SAODAGAR Vs. INSPECTOR OF POLICE SADAIR MURSHHDABAD

JUDGEMENT

(1.) THIS is a writ petition by thirty three Writ petitioners challenging an order passed under section 30 (3)of the Police Act, 1861 imposing a condition upon immersion procession. The allegation of the petitioners is that the petitioners are entitled to take the deity Shree Monosha Malta in procession in accompaniment of musical instruments along the village pathways of Sompara, Mahammadpur and Palitapara. It has been alleged that this right is being exercised for a long time and the image is ultimately immersed in a tank at Sompara. The police authorities imposed two conditions. The first was that the procession must pass out of the mosque area at Mohammadpur within 10. 00 hours, and 17. 00 hours on 18. 9. 85. The second condition was that no music shall be played or any other noise made within one hundred yards of any mosque, temple or place of worship. The order has been given by the police authority on the basis of an agreement reached between the Hindu and the Muslim communities on 25. 5. 82 at 10. 00 hours at the office of Sompara-I Gram Panchayat on the issue of a tension due to Harinam Sangkirtan near the mohammedan Mosque on 11. 5. 82.

(2.) THE petitioners claims that this is an interference with the religious right. Immersion is a custom among the Hindus and these processions are usually accompanied by bands and drums etc. This cannot be stopped under any circumstances.

(3.) ON principle I am unable to accept this contention. There is no absolute right to play music or beat drums under any circumstances. The right is always a qualified right. To give an example, if there is a hospital and the procession is to pass by that hospital the police authority may reasonably impose a condition that no noise will be permitted near the hospital. The State can always impose reasonable restriction upon the exercise any fundamental right. The question is whether the restriction is reasonable or not. This must depend on the facts and circumstances of each case. There cannot be any absolute yardstick of reasonableness. The facts of this case indicate that there was communal tension. An agreement was entered between the two communities to maintain peace and the agreement was also not to beat drums or play music in front of any temple, mosque or any other place of religious worship.