EMPEROR Vs. AFAQ HUSAIN JAUHAR

JUDGEMENT

(1.) This is an appeal by the Local Government against the acquittal of the respondent, Afaq Husain Jauhar. The respondent is the editor, printer and publisher of the Urdu newspaper "Khaiyat", Cawnpore. On 17 March 1939, an order was issued by the learned District Magistrate, Cawnpore, under Section 144, Criminal P.C. prohibiting the public living in the areas administered by the Cawnpore Municipality, the Cawnpore Cantonment Authority and the Juhi Notified Area Committee from printing or publishing in any way any article, leaflet or pamphlet, etc. likely to increase communal tension or to excite inter-communal feeling and lead to a breach of the public peace. The respondent published an article under the headline "Sanginon ke saye men Kailash Hotel men baja", (i.e. "music in the Kailash Hotel under the protection of bayonets"), on 3 April 1939 in his paper in disobedience of the order. He was prosecuted under Section 188, I.P.C. for this publication and was convicted and sentenced to pay a fine of Rs. 100. He appealed to the learned Sessions Judge, who relying on a judgment of a learned single Judge of this Court, reported in Sat Narain V/s. Emperor ( 39) 26 A.I.R. All. 746 set aside his conviction and sentence and acquitted him. In his order the learned Judge observed: The ruling says that the first two clauses of Section 144, Criminal P.C. do not invest the Magistrate with any power to issue an order to the general public A provision for such an order is, however, made in Sub-clause (3) of Section 144, Criminal P.C., and the obvious conclusion from the terms of this sub-clause is that no order under Section 144 can be issued to the general public except when frequenting or visiting a particular place. This is a clear limitation placed by the law upon the power given to the Magistrate to issue an order to the general public under Section 144, Criminal P.C., and any order which ignores this limitation must be held to be bad in law. In that case the accused was the publisher of a newspaper in Allahabad, and it was held that a general order such as the one in the case now in point was bad in law, and the conviction was quashed. In the present case too the order relates to general public living in the areas of Cawnpore Municipality etc, and it cannot be said that this order referred to the general public when frequenting or visiting a particular place.

(2.) The order in the present case was as follows: Whereas communal feelings in Cawnpore are strained and increase in communal tension is likely to result in a breach of the peace and a disturbance of the public tranquillity, I.L.P. Hancox, District Magistrate, Cawnpore, hereby prohibit within the areas administered by the Cawnpore Municipality, the Cawnpore Cantonment Authority and the Juhi Notified Area Committee any person from printing or publishing in any way any article, leaflet or pamphlet, etc., likely to increase a communal tension or to excite inter-communal feeling and lead to a breach of the public peace. This order will remain in force for a period of two months, unless previously withdrawn.

(3.) The question for our decision is whether this order is competent and valid under Section 144(3). Section 144(3) enjoins that any order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.