BOMBAY HIGH COURT

                                                    D.V. Belvi

                                                         Vs

                                                      Empore

                                        (Madgavkar and Murphy, JJ.)

                                                   05.03.1931

                                                  JUDGMENT

Madgavkar, J.
1. This is an application in revision against an order under Section 144 of the Criminal Procedure
Code passed by the District Magistrate, Belgaum, on December 11, 1930, forbidding Prabhat
Pheris in the city and cantonment of Belgaum as creating a nuisance and inconvenience and
creating conditions favourable to the disturbance of public tranquillity. The period of the order
was two months. The order has, therefore, expired, but we have allowed the application to be
argued on the merits, as it is represented to us that a certain number of persons have been
convicted and the prosecution of others is contemplated for disobeying the order.

2. The two grounds on which the order is challenged are, firstly, that the order is too wide, and
secondly, that evidence tendered by the petitioners was not allowed to be adduced by the learned
District Magistrate.

3. It is contended for the Crown that the order is an administrative order, the recording of
evidence was not absolutely necessary and that the order was implicitly confined to the streets of
Belgaum.

4. The weight of authority is in favour of the view that such orders are judicial and not
administrative. The question has been set at rest in cases of this Court such as Queen-Empress v.
Lakhmidas Makandas1 Emperor v. Bhagubhai , and Emperor v. Ganesh Mavlankar2 and by the
Madras High Court in Queen-Empress v. Tirunarasimha Chari3 and Muthuswami v. Thangammal
Ayiyar4

5. If the order is judicial, the Magistrate must keep an open mind and record not necessarily the
whole but at least a reasonable portion of the evidence essential for the judicial determination of
the objections rather than say, as he apparently does here, that his opinion could not be changed
by any such evidence and refuse to record any evidence.

6. We are also of opinion that the order being addressed to the public generally must be limited
under Section 144(3) to the public when frequenting or visiting a particular place. To argue that
though no such particular place is specified, all the streets in the city and cantonment of Belgaum
are implied, would appear to defeat the objects of the section, prohibiting, as it does, the
performance of acts, which would otherwise be lawful. This has been so held by this Court in the
three Bombay cases cited above. It has also been considered in Dagdu Tatya Shimpi v. Emperor5,
decided by Patkar and Wild JJ., on Juen 13, 1929 (Bom. Unrep.)

7. On these grounds the petition must, in our opinion, be allowed and the order of the District
Magistrate set aside as being bad in law for the reasons stated above.

Cases Referred.

1(1889) I.L.r. 14 Bom. 165
2(1930) 33 Bom. L.R. 59
3(1895) I.L.R. 19 Mad. 18
4(1929) I.L.r. 53 Mad. 320
5(1929) Criminal Revision No. 162 of 1929