SHAM SUNDER LAL Vs. EMPEROR

JUDGEMENT

(1.) The applicant, Sham Sunder Lal, has been convicted by a Magistrate of the First Class of an offence under Section 32 of the Police Act V of 1861 and sentenced to a fine of Rs. 200. An application in revision was made to the Sessions Judge and has been rejected. The applicant comes up before this Court in further revision.

(2.) The facts of the case are briefly as follows: There is a mala held every year at a village called Daranager, 7 miles from Bijnor. Last year this mela was held from the 8 of November. The District Magistrate issued orders to the police that a certain schedule of tolls for the admission of animals and carriages into the mela ground had been fixed. Various toll-gates were set up for the collection of these tolls and at the gate in question in this case a District Board schoolmaster was put to receive the tolls. The applicant, when asked by this official to pay the toll for the bullock tonga in which he was seated refused to pay it and entered into argument with the toll-collector. The police constable on duty ordered the applicant to pay the tax or go back, an order which was disobeyed by the applicant, who remained arguing and, it is said, forced his way into the mela grounds. He was accordingly arrested and taken to a Deputy Magistrate on duty at the fair. The contention of the applicant is that the District Magistrate had no power to impose the toll required from him and that consequently the constable on duty had no right to direct the applicant either to pay the toll or go back.

(3.) Section 31 of the Police Act prescribes that "it is the duty of the police to keep order at places of public resort and to prevent obstructions on the occasions of assemblies... and in any case when any road, street, thoroughfare, ghat or landing-place may be thronged or may be liable to be obstructed." Section 32 makes a person liable to conviction for opposing or not obeying an order issued under Section 31. It is clear that an order issued under Section 31 may be an oral order by a police constable issued during the control of the public at any place of public resort. The only question, therefore that arises in this case is whether the constable was entitled to direct the applicant to pay the toll or to turn back. It is contended on behalf of the applicant that the constable was not entitled to do this because it has not bean proved that the Magistrate was entitled to impose the toll. On the other hand there is a presumption in favour of any order of an official being legal until the contrary is proved. In this case it has not been shown that the road was a public thoroughfare. The probability is that the road on which the toll "barrier was set up was a temporary road made on the zamindar's land for the passage of visitors to the mela. The applicant failed to prove that he had a right, by any dedication of the surface of the road to the public, to use this road. It cannot be denied that if this road is the property of the zamindars they could make the granting of a license to use any portion of it or to enter on to their lands, conditional on the payment of a toll. It is possible that the collector may have been granted actually or impliedly the right to collect such a toll. It is common ground that tolls had been collected for many years, a fact which would justify an inference of a grant to collect the tolls. It is therefore possible that the District Magistrate had a right to collect the toll and as a presumption must be made that any action taken by him was lawful, and this presumption has not been met, it must be held for the purposes of this case that the imposition of the toll by the Magistrate was lawful. From this point of view it is clear that the police constable was in order in telling the applicant to pay the toll or turn back. He could not direct the collector to give way and let the applicant proceed on his way if the toll- collector was acting lawfully.