BHAGWATI PRASAD Vs. EMPEROR

JUDGEMENT

(1.) This revision application must be allowed. It is an application by three men, Bhagwati Prasad, Bajrang Bali and Prag, who have been convicted and sentenced by a Magistrate of Fatehpur, under Section 188, I.P.C., in respect of an alleged disregard by them of an order under Section 144, Criminal P.C., promulgated by a Sub-Divisional Officer. It seems that, at the time, disturbances were feared in the village of Haswa between the Hindus and the Muslims of the place. The Sub- Divisional Officer, therefore, thought it right to make an order under Section 144, Criminal P.C., prohibiting the collection of bricks and other materials that might be used as missiles in the village. I have carefully read the whole of this order. It is a long, loosely worded and rambling order which leaves much, in my opinion, to be desired. Orders of this kind should, I think, be short, simple and absolutely clear. If they are not, they lose almost the whole of their value and become extremely difficult of enforcement. This particular order was one purporting to be addressed to the "public generally" under Sub-section (3) of Section 144, Criminal P.C., and not to any particular individual. But, as far as I can see, the only indication in the order from first to last as to the "particular place" its operation is intended to cover is an unobtrusive, and almost parenthetic, statement at the very end of this long and complicated document that it: "...shall remain in force within the local limits of the boundary of Haswa." The facts have been clearly found in both the courts below. They are that the applicants were residents of the village and that heaps of bricks and other missiles were found on (among other places) the roofs of their houses. This has been proved and I accept it. I accept it also that the applicants have been proved to have known of the existence of the order. The point which has been argued before me is that the order itself is an unlawful one. As I understand it, this is put upon two grounds. It is said in the first place that no person, can, under an order addressed to the public generally, be prohibited from making such use as he pleases of his own premises. Put in another way, it is said, I think, that a person who lives in a particular house cannot be said to be "frequenting or visiting a particular place" at the time of doing an act or acts upon his own premises, notwithstanding that the premises themselves may be within the defined prohibited area. To support this contention, I have been referred to an authority of the Madras High Court, In re Sriramamurty (1931) 18 AIR Mad 242. The learned Judge who decided that case observes: ...No order can be passed against the public without that limitation as to place, namely that it must be one, whether publicly or privately owned, which at the time, when the prohibition operates, the public frequent or visit. They may have a right to frequent the place as in highways and places of public resort or they may be allowed or invited to visit it as at a public meeting held in private premises. But the place must be one which is open to the public as such. And this involves that the public cannot be prohibited from putting up flags in private houses, first because those who put up the flags are owners or occupants of such houses, and second because the public as such neither frequent nor visit private houses. It is a misuse of language to call house owners who use their houses members of the public for the purpose of this section, and I have not been shown any instance of such a use of the section....

(2.) With great respect, I have some difficulty in following this reasoning. I do not understand why a privately owned house or building should be beyond the reach of an order addressed to the public at large under Section 144, even so far as its own occupier is concerned. And it appears to me to put a somewhat narrow construction on the word "frequenting" to exclude a member of the public who occupies a house within a defined area from the category of those who frequent that area. I prefer the reasoning of Kendall J., in our own Court, who in Sharper v. Emperor has said: It has next been argued that as the applicants are themselves residents of one of the areas specified in the notice, they cannot be said to be frequenting that area. To live in an area is, of course, to frequent it, though a resident would ordinarily be said to reside in and not frequent his part of the city.

(3.) With this I respectfully agree. I think myself that the words "or to the public generally when frequenting or visiting a particular place" are wide enough to include all members of the public when within the defined area or at the defined place, whether he or she is present there frequently, e.g., as a resident-or merely casually or occasionally, e.g., as a "visitor." The ground however upon which, in my judgment, this revision must be entertained is the other ground taken before me that in this order there is no sufficient definition of the particular place where it is to operate. The purpose of the Criminal Procedure Code in requiring an exact definition of a particular place is obvious, because it would be manifestly unjust to the public to promulgate a prohibitive order-leading possibly to penal consequences-without making it quite clear what exactly it is that the public is forbidden to do and in what particular place or places. "When therefore the Act says that a "particular place" has to be defined it means, I think, what it says, namely that the public must be informed with certainty of the exact place in, at or within which the prescribed acts are forbidden to them. It must not be a matter of doubt, inference, calculation or inquiry. The order itself must, I think, define with particularity the place to which the prohibition extends. I have been referred to a number of authorities to this effect with which I respectfully agree: see D.V. Belvi V/s. Emperor (1931) 18 AIR Bom 325, Sat Narain V/s. Emperor (1939) 26 AIR All 746. In the present case I do not think that the somewhat casual reference to the village of Haswa in the words "this order shall remain in force within the local limits of the boundary of Haswa" is a sufficient compliance with Section 188(3), Criminal P.C. What, may I ask, are "the local limits of the boundaries of Haswa?" I doubt very much if the villagers themselves know. And, as I have already said, the order must, in my view, specify the place or area of its operation with such certainty that, in the minds of those to be affected by it, there can be no reasonable room for mistake. For these reasons, I allow this revision, set aside the convictions and remit the fines, which must be refunded, if they have already been paid.