YESHWANT Vs. EMPEROR

JUDGEMENT

(1.) YESHWANTA , son of Vishwanath, and 16 others were convicted of the offence of knowingly joining and continuing in an assembly of more than five persons likely to cause a disturbance of the peace, after it was commanded to disperse, punishable under Section 151, I.P.C., and sentenced to pay fines of Rs. 200 each, with the exception of one who was fined Rs. 100. On appeal the First Class Magistrate exercising powers under Section 30, Criminal P. C., upheld the conviction, but reduced the fines to Rs. 50 each, and in one case to Rs. 25. All of them have filed a joint application for revision in this Court. On 24th August 1930 at Lonar the applicants headed a procession which is described as Shila Pola procession with music playing and moved along a route leading past the front of a mosque. The Moslems had gathered in the mosque determined to resist the applicants' procession with violence. With a view to avert a disturbance of the public peace, the Sub-Inspector of Police commanded the processionists to stop the music and disperse. The applicants disobeyed the order on the ground that they had a lawful right to use a public way for leading their procession with music and moved forward when the Moslems made a violent attack culminating in grievous hurt to several members of the procession. The situation was brought under control by opening fire.

(2.) THE lower appellate Court found that the Hindus had been going in procession with music past the mosque in previous years and that such processions were permitted by the Subdivisional Officer, but it held that the readiness of the Moslems who had assembled in the mosque to resist the progress of the Hindu procession with violence created a reasonable apprehension that the processionists were likely to cause a disturbance of the public peace which justified the Sub-Inspector in commanding the applicants to disperse, and consequently that the applicants were guilty of the offence punishable under Section 151, I. P. C., by reason of their having defied the command. It appears from the record that the applicants' procession was, being taken out when no prayers were being recited at the mosque. It is strenuously contended for the applicants that their procession was lawful and not likely to cause a disturbance of the public peace. Reliance is placed on Beatty v. Gillbanks (1883) 9 QB 308 for the proposition that a lawful assembly cannot be dispersed simply because it is threatened with opposition by another body of men to the danger of the public peace. In the reported case the facts were that one William Beatty, who was Captain and a leader of the Salvation Army, was in the habit of organizing and directing processions headed by musical band, flags and banners. In the past he was opposed by another organized band of persons called the Skeleton Army. To obviate a recurrence of collusion between the two bands, a public notice signed by two of the Justices of the Peace was issued calling upon all persons to abstain from assembling in the public streets to the disturbance of the public peace, and a copy of the notice was served on Beatty. The procession headed by Beatty was stopped by the police force and he was prosecuted for being a member of an unlawful assembly. While reversing his conviction in appeal Field, J., observed as follows : What has happened here is that an unlawful assembly has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justice amounts to this: that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition:" see Beatty v. Gillbanks (1883) 9 QB 308.

(3.) COMMENTING on these cases Dicey in his Law of the Constitution remarks that ordinarily an otherwise lawful public meeting cannot be forbidden or proclaimed unlawful by the Magistrates or police officers simply because the meeting may probably or naturally lead to a breach of the peace on the part of the wrongdoers. But he mentions two limitations or exceptions to the application of this principle : (1) if there is anything unlawful in the conduct of the persons convening or addressing a meeting and the illegality is of a kind which naturally provokes the opponents to a breach of the peace the meeting may become unlawful ; (2) when a public meeting, though the object of the meeting and the conduct of the members thereof are strictly lawful, provokes a breach of the peace, and it is impossible to preserve or restore the peace by any other means than by dispersing the meeting, then the Magistrates, constables and other persons in authority may call upon the meeting to disperse. The learned writer further observes that the only justification for preventing a lawful assembly from exercising their lawful rights is the necessity of the case and that the limitations which arise from the paramount necessity of maintaining the King's peace are in reality nothing else than restraints which for the sake of preserving the peace are imposed upon the ordinary freedom of individuals. It is then evident that the question whether the conduct of an assembly is of a kind which is likely to disturb the public peace or whether the public peace cannot be maintained without dispersing a lawful assembly is, in reality, a pure question of fact.