RAMNAD ZAMIN DEVASTHANAM TAHSILDAR Vs. KADAR MEERA AMBALAM

JUDGEMENT

(1.) These two are connected revision petitions filed against the orders of the Second Class Magistrate, Mudukulathur, in Miscellaneous Cases Nos. 11 and 13 of 1931 on his file. In the exercise of the powers vested in him under's 144, Criminal Procedure Code, he passed an order on 12 October, 1931, restraining both the Hindus and the Muhammadans of Kamudi (styled as A party and B party) from taking any kind of procession, Becular or religious, through the streets of Kamudi town or taking any part in such a procession. On 22nd December, 1931, he passed another order in similar terms but making an exception in the case of bona fide marriage and funeral precessions, sb to which he put another restriction, namely, that licenses should be obtained in good time from the Police under Section 30, Clause 2 of the Police Act V of 1861.

(2.) Owing to the tension of feelings between the Muhammadans and the Hindus of Kamudi in the matter of taking proe ceseicne, both secular and religious, through the streets of this town, the Sub-Inspector of Police made a report on 14 June, 1931, and thereupon, the Sub- Magistrate of Mudukulathur thought it necesBaiy to paes an emergent ex parte, order under Section 144, Criminal Procedure Code, prohibiting any kind of processions through the streets of this town either by the Hindus or by the Muhammadans, as he apprehended a riot or breach of the peace. He passed this order on 15 June, 1931, as an emergent measure, but however permitted the parties to appear with their witnesses and recorded before him on 18 June, 1931, to show cause why this ex parte order should not be made absolute. In accordance with that direction both parties filed statements in support of their respective claims, and the Nadar Hindus and non-Nadar Hindus of the A party and also the Muhammadans of the B party adduced some oral evidence before him. The Sub-Inspector of Police was also examined. The immediate cause of the disnute seams to be that the Hindus wanted to take their processions through the Mela Street (West Street) of Kamudi which is inhabited both by Muhammadans and Hindtis, and this was objected by the Moslems. The Hindos contend that according to immemorial usage they have a right to take their proceessions accompanied with music through the public streets of Kamudi including the West Street; whereas, the Muhammadans on tend that by reason of the beating of drums and other attendant music the votaries in the mosque, which is about 50 yards from the West Street, would be disturbed in their prayers, as also the women and the old and the infirm who have to worship in their houses in that street. After setting forth these contentions in his order, the Magistrate brushed aside the evidence adduced by the parties with the remark that it is beside the point, as in his opinion he was not competent to give a finding as to the rights of the respondent parties to pass through any street wish processions. The only points which he thought he should take into consideration are, the existence of strained relations between the Muhammadans and the Hindus in the matter of taking processions through the street question and the likelihood of a serious breach of peace if an order under Section 144 is not passed. Holding that there were sufficient grounds for proceeding under Section 141 and also thinking that immediate prevention was necessary, he made the original ex parte order absolute on 20 July, 1931. On 19 August, 1931, a petition was put in by the Hindus to the Joint Magistrate, Ramnad, under Section 147, Criminal Procedure Code, for causing an enquiry to be made as regards the matters in dispute and declaring the right of the Hindus to carry procession with music along the street in question in accordance with the long established usage and prohibiting interference with the exercise of such natural rights. But this petition was dismissed by the Joint Magistrate on 2nd September, 1931, stating that no action was necessary as the Sub-Magistrate reported that there was no likelihood of a breach of the peace. On 17 September, l931, the Joint Magistrate in dealing with the petition of the Hindus presented under Clause (4) of Section 144, Criminal Procedure Code, against the order of the second Glass Magistrate aforesaid, passed in Miscellaneous Case No. 8 of 1931, upheld the view taken by the Second Class Magistrate in his order dated 20 July, 1931, that it was not his province to deal with the question of the rights of the respective parties to take processions through public streets, and dismissed the petition. On 24 September, 1931, one of the Musliois filed a petition praying for an order under Section 144 prohibiting the Nadar-Hindus of Kamudi from taking their God in procession through the Mela Street known also as Muhammadan Street. In connection with this petition, the Second Glass Magistrate passed an order on 12 October, 1931, preventing both parties from taking any kind of procession in Kamudi town through any of the streets. He declined to reconsider this order and dismissed the petition of the Hindus on 17 October. The Joint Magistrate to whoai a petition was put in under Clause (4) of this section for rescinding or altering the order of the Second Class Magistrate dated 12 October, declined to interfere. He seems to be of opinion that in a proceeding under Section 144 any discussion as to the rights set up by the parties in the matter of carrying on processions in public streets would be irrelevant and a consideration of the same would not be the legitimate function of a Magistrate. This order was passed by him on 22 November, 1931. On the eve of the expiration of two months from 12 October, 1931 the date of the order of the Second Class Magistrate under Section 144, the Sub Inspector of Police again applied for an order under Section 144 prohibiting procesaioas in Kamudi town and in connection with that report a fresh order was passed by the Second Class Magistrate on 2 December, 1931, restraining both parties from taking processions in the street except bona fide marriage and funeral processions, for which license should be obtained from the Police in due time.

(3.) It is now contended on behalf of the petitioners in these revision cases, that the aforesaid orders of the Sub-Magistrate under Section 144 are illegal and ultra vires and that the learned Magistrate has taken an incorrect view of the scope of his functions under this section and misdirected himself in assuming that he had no concern at all with the rights of the parties. It is further contended that such repeated ex parte orders passed in quick succession, at the same time reiusing to hold any enquiry as to the rights set up by the parties practically operate as a permanent injunction restraining them from exercising me natural rights of citizens in public streets and are wholly illegal.