S S VENKATARAMANA AIYAR Vs. EMPEROR

JUDGEMENT

(1.) This is a petition for revision of the order of the Divisional Magistrate of Erode, dated 1st September 1917, passed under Section 144 of the Criminal Procedure Code prohibiting the petitioner, who is a High Court Vakil at Erode, from flying a a Home Rule flag and directing him to remove the said flag immediately. The order says, "as this is a ease of emergency, this order is passed ex parte." It was served on the petitioner at 9 P. M. on the 1st September 1917.

(2.) The order is defective Prima facie in the following matters: (1) it does not say where the flag was being flown by the petitioner, but this seems to be immaterial as the petitioner knew where it was being flown, that is, over his residence; (2) it does not set out what were the materials on which the Magistrate arrived at the opinion that the flying of the Home Rule flag was (a) "causing annoyance to the public" and was (6) "likely to cause disturbance of the public tranquillity," and (c) "also likely to lead to a riot or affray:" (3) it does not state that annoyance was being caused to any person or persons lawfully employed, the words lawfully employed being found in Section 144, Clause 1; but this also seems to be an immaterial defect as annoyance to persons lawfully employed is only one of several alternative grounds mentioned in Section 144, Clause 1, and the prevention of a disturbance to the public tranquility or of a riot or affray is sufficient to support the order; (4,) it does not mention any facts to support the opinion that it was "a case of emergency.? As I have dealt with the irregularities (1) and (3) while mentioning them, there remain only the irregularities (2) and (4) for consideration.

(3.) It was held by that very learned Judge Sir S. Subramania Aiyar in Chinnappudayan. In the matter of 30 M. 548 : 3 M.L.T. 18 : 7 Cr. L.J. 28, in respect of the analogous provisions in Section 145 of the Criminal Procedure Code, (which expressly require that the Magistrate should state the grounds of his being satisfied" while Section 144 requires only the statement of the "material facts of the case") that the omission to state in the preliminary order the grounds on which the Magistrate was satisfied of the existence of a dispute likely to cause a breach of the peace was only an irregularity and did not affect the jurisdiction of the Magistrate and did not make his order void. It is, again, admitted in the petitioner s clerk s affidavit, paragraphs Nos. 10 and 11, that the Circle Inspector of Police and the Village Munsif of Erode submitted each a report to the Sub-Divisional Magistrate and that these reports formed the materials on which the ex parte order was issued. I think, there fore, this defect No. (2) also is not a sufficient ground for interference with the order.