At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE PANCHAPAKESA AYYAR & THE HONOURABLE MR. JUSTICE BASHEER AHMED SAYEED
For the Appearing Parties: V.P.Raman, Advocate.
PANCHAPAKESA AYYAR, J.
( 1 ) THIS is a reference made to this Court under Section 432, Cri.P.C., by the second Presidency Magistrate in M.P.No.329 of 1958 in C.C.No.184 of 1958 at the instance of the accused, G. N. Annadurai, leader of the D. M. K. and ten others. These eleven persons were charged in that case for having committed an offence punishable under Section 41 of the City Police Act. The case of the prosecution was that the accused had committed the offence by having proceeded towards the triplicane beach on 3-1-1958 to conduct a public meeting in defiance of the order of the Commissioner of Police, Madras, dated 31-12-1957, banning all meetings in the city except certain specified, categories of meetings which could be held without a licence and meetings for which licences had been given by the commissioner of Police, Assistant Commissioner of Police, etc., and subject to the conditions of the licences. The accused had proposed to hold a public meeting at Triplicane Beach on 3-11958 at 6 p. m. on behalf of the Dravida Munnetra Kazhagam and had applied to the Commissioner for permission to hold the meeting, under Clause (1) of his order dated 31-7-1957. The order dated 31-7-1957 prohibiting public meetings, except those covered by licences, and those allowed specifically, was passed because of reliable information received by the Commissioner that leaders and volunteers of the Dravida Kazhagam had, in pursuance of their earlier decision to erase the word "brahmin" from the name-hoards of hotels, and to take out processions and assemble in front of such hotels in the City of Madras for the purpose of picketing, resolved to intensify their campaign from 1-8-1957 through processions, assemblies, picketings, going together in batches, etc. and because of reliable information received by the Commissioner that the Tamil Nadu Socialist party had proposed to launch a State-wide agitation from 1-8-1957 in support of its eighteen-point charter of demand by taking out processions, assemblies, etc. , and picketing in front of the residences of Ministers and Government officers and in front of police stations, and because the Commissioner apprehended that the situation caused by the actions of the Dravida Kazhagam and the Tamilnad socialist Party might be exploited by the anti-social and hooligan elements in the city resulting in acts of mischief and violence leading to rioting and the disturbance of public tranquility and breach of the peace, and he considered that it was necessary for the preservation of public peace and public safety to prohibit assemblies and processions for the purposes mentioned above and also for any other purposes involving a general unrest affecting the maintenance of communications and supply of services essential to the community in the city of madras. This order of the Commissioner was passed under Section 41 of the City Police Act, and it was made applicable to all assemblies and processions in any street, road, thoroughfare or other public place within the limits of the City of Madras during the period commencing from 1-8-1957, and ending with 14-8-1957, both days inclusive. On receiving the application of the accused for holding a meeting on 31-1958, the Commissioner called for a report from his subordinate and he received a report that in view of the decision of the Dravida Munnetra Kazhagam to hold black flag demonstrations, etc., against Prime Minister Nehru, it was not desirable t
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permit the meeting at Tilak Ghat on the 3rd January on the eve of the Prime minister's visit to Madras. In view of such report, the Commissioner passed an order refusing the permission for the meeting on the ground that if it was permitted at Tilak Ghat that day the Dravida Munnetra Kazhagam leaders were likely to exhort the audience to acts of violence at the time of the Prime Minister's visit and there was a likelihood of a disturbance of the peace. So, he gave them such an order, on 2-1-1958, after they had published notices that they wanted to hold black flag demonstrations to condemn the Prime Minister's speeches against Tamil leaders and in favour of Hindi etc., in their paper "nam Nadu". The Dravida Munnetra Kazhagam leaders thereupon resolved to defy the ban of public meetings and to hold the meeting on 3-1-1958 in spite of the refusal of permission and to vindicate their right to freedom of speech and assembly. In the issue dated 2-1-1958, under the caption "my Request", Annadurai stated that he had decided, with the consent of the Secretary, to speak at the meeting at Tilak Ghat at 5-30 p. m. on 3-1-1958, even if the police refused permission, and that thousands would applaud this decision to hold the meeting even it was banned, but added that whatever happened, the meeting should go on the most peaceful manner without the least violence or any vile act. On 3-1-1958 under the caption "my Duty" Annadurai wrote that he was determined to break the ban and address the meeting, and that if he was arrested, though it was quite natural for his followers to become angry, they should restrain themselves and behave non-violently and in a manner worthy of Tamil culture. As already stated, he and his followers were arrested near the Fort umbrella, some furlongs from Tilak Ghat, when proceeding in cars to attend the meeting. At the meeting place some furlongs away, some two thousand members of the Dravida Munnetra Kazhagam crowd are said to have behaved in a disorderly fashion and to have pelted stones. We are not concerned in this reference with that alleged act. ( 2 ) WHEN the case came up for hearing, the accused wanted the learned Magistrate to refer four questions to this Court for decision under Section 432, Cri. P. C. Those four questions were:(i) Is Section 41 of the Madras City Police Act viola-rive of Articles 19 (1) (a) and 19 (1) (b) of the Constitution of India in so far as it imposes or enables the Commissioner of Police to impose unreasonable restrictions on the exercise of the fundamental rights guaranteed? (ii) Is Section 41 void on the ground that it lays down no standards or criteria to guide the Commissioner of Police in the exercise of his discretion hut confers an arbitrary and uncontrolled power on him? (iii) Is the order of the Commissioner of Police dated 31-12-1957 purporting to prohibit all assemblies at all public places within the city, violative of the Constitutional guarantees of free speech and assembly, in that the said order amounts to a 'blanket-ban' on all public assemblies? (iv) Is the order of the Commissioner of Police dated 31-12-1957 violative of the provisions of Section 41 of the City Police Act, and is it void also on the ground that it states no reasons on its face to justify itself?( 3 ) SOME American decisions were quoted before the learned Magistrate in support of the accused's contentions that Section 41 of the City Police Act was against fundamental rights and ultra vires of Articles 19 (1) (a) and 19 (1) (b) of the constitution of India, and void also because it laid down no standards or criteria to guide the Commissioner of Police in the exercise of his discretion, but conferred an arbitrary, absolute and uncontrolled power on him without limit of time or place, or subject to any appeal to the Government or to Court, It was also contended before him that the American decisions made the Commissioner's order dated 3112-1957 under Section 41 of the City Police Act void as it was a blanket ban on all public assemblies, and not merely on assemblies likely to cause disturbances of the public peace. It was urged further that the order of the Commissioner was void also on the ground that it stated no reasons on its face to justify itself. ( 4 ) THE learned Magistrate rightly considered that the decisions of the Supreme court of India and of the High Courts, which were now available on the points at issue, should be preferred to decisions of foreign Courts like the American Courts, and held that under the rulings of the Supreme Court and of the High Courts there was no doubt that Section 41 of the City Police Act was only a reasonable restriction on the freedom of speech and assembly guaranteed under Articles 19 (1) (a) and 19 (1) (b) of the Constitution. But he considered that a reference to this Court was necessary on the other two questions in a modified form. The subject matter of the reference made by him is ;"1. Whether in deciding a cause of disobedience of an order under section 41 of the City Police Act, promulgated by the Commissioner of police, can the Court enter into the question whether the order itself is violative of the provisions of Section 41 of the City Police Act and is, therefore, inoperative. 2. Whether in this particular case, the restriction imposed by the order is an unreasonable restriction on the fundamental rights of freedom of speech and assembly guaranteed under the Constitution and is, therefore, void, or is the order banning the meeting proposed to be conducted in such circumstances by the accused a proper and valid order under Section 41 of the City Police Act. ( 5 ) WE have perused the records and heard Mr. V. P. Raman, the learned counsel for the accused, and the learned Advocate General and the learned Public prosecutor, for the State. Mr. V. P. Raman sought our permission for arguing also on the question of the validity of Section 41 of the City Police Act not covered by the reference before us, as in his opinion, the learned Magistrate went wrong in not referring that question also to us. We permitted him to do so. In effect, the two questions argued before us by Mr. V. P. Raman, the learned counsel for the accused, and by the learned Advocate-General and the learned Public Prosecutor were these. "1. Is Section 41 of the Madras City Police Act (III of 1888) to be struck down as going against the provisions of Articles 19 (1) (a) and 19 (1) (b) of the Constitution of India, having become liable to be struck down after the corning into operation of the Constitution on 26-1-1950? and 2. If Section 41 is not liable to he struck down, can the order dated 21-71957 by the Commissioner of Police prohibiting public meetings except those allowed thereunder liable to be attacked at the trial in the lower court, as also the refusal of permission to the accused to hold a public meeting on 3-1-1958?"Mr. Raman relied on several grounds for holding that Section 41 of the City Police act had to be struck down because of Articles 19 (1) (a) and 19 (1) (b) of the constitution of India. He said that the framers of the City Police Act of 1888, passed in pre-Independence days had not dreamt of or contemplated the freedom of speech and assembly granted by the Constitution of India under Articles 19 (1) (a)and 19 (1) (b ). He urged that under Articles 19 (1) (a) and 19 (1) (b), there is now perfect freedom of speech and assembly for all citizens of India, provided they assemble peaceably and without arms, and said that this freedom to assemble is not confined to private places but also extends to public places. The learned Advocate-General urged that the freedom of assembly granted under article 19 (1) (b) is Specifically made subject, in the Constitution itself, under Article 19 (3) to any law imposing in the interests of public order, reasonable restrictions on the exercise of that right. Mr. Raman did not dispute this. He urged that the restrictions imposed under Section 41 were not reasonable restrictions at all hut unreasonable and arbitrary restrictions as they conferred an autocratic, unlimited and absolute powers on a police officer, the Commissioner of Police, without even a right to apply to the Government to get the order rescinded or modified and a right to approach the Court and without any limitation of time, like the 15 days prescribed in the Bombay City Police Act and in the Travancore Cochin Police Act. The learned Advocate General pointed out that though there is no express provision in Section 41 for approaching the Government to get the Commissioner's order passed under that section rescinded or modified, everybody, including the accused, knew that the Government, under whom the Commissioner was directly working, could be approached for rescinding or modifying such orders, though what orders the Government would pass would depend on the merits of the case, he also pointed out that though no specific time limit is found in Section 41 itself, as in the Bombay and Travancore Cochin Act, and there were cases in olden times of some order extending to three months, and in one case even to one year, still, following the observation in a ruling of this Court in 1955, expressing the advisability of fixing a time limit for an order under Section 41 of the City Police Act to 14 days, the Commissioner has been for the last three years observing that time limit of 14 days as in the order attacked now, and in the previous orders filed, and that, he will always do so, and that, if necessary, we might in our order in this case emphasise the desirability of incorporating a provision for a time limit of 15 days in Section 41 itself, as in the Bombay and Travancore Cochin Acts. Mr. Raman agreed that, as a matter of convention, for the last three years, the time limit of 14 days has been observed in the orders under Section 41. But he said that, as the section itself did not impose a time limit, or give the right to approach the Government for rescinding or modifying the order of the commissioner, it ought to be struck down, as was done with such a section by the supreme Court in Virendra v. State of Punjab, (S) (A). But in that case there was no proof that any conventional time limit of 14 days was observed rigidly, as here, for a long stretch of years. We do not think, therefore, that Section 41 should be struck down for that reason, though we think it desirable to express our opinion that a provision should be made in Section 41 by way of an amendment incorporating a time limit of 15 days, as in the Bombay and travancore Cochin Acts instead of leaving it merely to convention. We also add that any order under Section 41 extending over 15 days at a time will be held invalid.( 6 ) WE are satisfied that the right of assembly guaranteed to citizens under Article 19 (1) (b) of the Constitution is controlled validly by the reasonable restrictions allowed by Article 19 (3) of the Constitution itself. This is because the dance of liberty is possible only on the platform of law and order. It has been a problem in all States how to reconcile the liberty of, an individual to do as he pleased with the supreme need of public safety, security and order. Countries have dealt with the problem in different ways. As Mr. Raman himself pointed out, under the Belgian constitution, there is no right of public assembly at any time without a police permit. Under our Constitution, the normal thing is the right to assemble, subject to reasonable restrictions, like assembling peaceably and without arms. It is all a question of emphasis. Even in America, the right of public meeting in parks and other public places is severely restricted (Please see Davis v. Commonwealth of Massachusettes, (1897) 42 Law Ed. 71 (B) cited by the learned advocate General). The rulings of the Supreme Court in Bhagubhai Dullabhbhai v. Dist. Magistrate, Thana, (C), (A) and of the Bombay High Court in Bapurao Dhondiba v. State. (D) and of the Travancore Cochin High Court in Manjooran v. State AIR 1954 Trav-C 47 (E), relied on by the learned Advocate General, will show that it has been uniformly held in India that all the fundamental rights guaranteed under Article 19 (1) have been severely restricted under Article 19 (3) and that restrictions, where reasonable, will be upheld by Courts as valid. The learned Advocate General also relied on the ruling in Ex parte, Lewis, (1888) 21 QBD 191 (F) for the position that such rights can never be uncontrolled or free from restrictions. ( 7 ) THEN Mr. Raman urged that the powers given to the Commissioner under section 41 of the City Police Act were arbitrary and uncontrolled and far more extensive than the powers given to a District Superintendent of Police under section 30 (2) of the Indian Police Act, or even under Section 144, Cri. P. C. , to a magistrate, and that, therefore, Section 41 must be struck down. The learned advocate General replied that actually Section 41 of the City Police Act has laid down certain conditions to be observed by the Commissioner before passing an order under that section prohibiting public meetings and that one of conditions is that he should consider such prohibition to be necessary for the preservation of the public peace or public safety. He urged that the Commissioner of Police of Madras and the other two presidency towns was not a mere police official, like the District Superintendent of Police in the muffassal acting under Section 30 (2) of the Indian Police Act, but was also a magistrate in some respects and entitled to remand people, and also a justice of the peace, and that the presidency police administration ever since 1727 had been considered to be different from the district police administration, and so there was a reasonable classification and no discrimination. Mr. Raman urged that the difference between the presidency towns and moffussil, emphasised by the learned Advocate General, was not real, and was illusory, and that Section 41 of the City Police Act, with its wide terms, cannot be defended on the ground of "reasonable classification" as against the narrower provisions of Section 30 (2) of the Indian Police Act. The learned Advocate General stated that in presidency towns there would be large concentrations of population and large hooligan elements which might suddenly cause a disturbance and that the Commissioner of Police has to keep his pulse on the tempo of this hooligan population and its activities and act swiftly in emergencies. Mr. Raman urged that, from a reading of the police administration report of 1956, he found as many as 1537 riots in the mofussil and none in Madras city. From this he concluded that the Madras city was, if anything, having a more orderly population than the mofussil. We cannot agree. Possibly, the presence of section 41 and the action taken under it may itself be responsible for the absence of rioting in Madras City compared with the mofussil. Anyway from the time of caesar and Antony, city mobs have been, noted for their excitability and sudden acts of mob violence, including incendiarism. ( 8 ) ANOTHER matter raised by Mr. Raman was that Section 41 differed from Section 144, Cri. P. C. in not being justiciable or subject to judicial scrutiny, and that it must, therefore, be forgotten. But the Supreme Court has in (S) (A) specifically held that such orders are not justiciable or subject to judicial scrutiny, and cannot in their very nature be, and that the Court is wholly unsuited to gauge the seriousness of the situation, for it cannot be in possession of materials which are available only to the Executive Government. It goes on to add:"quick decision and swift and effective action must be of the essence of these powers, and the exercise of it must, therefore, be left to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make the exercise of these powers justiciable and subject to judicial scrutiny will defeat the very purpose of the enactment. "( 9 ) THE next contention of Mr. Raman was that, even so, the Supreme Court has not advocated the absolute prohibition of the right of public meeting or any other fundamental right guaranteed under Article 19, whereas Section 41 allows the total prohibition of the right of public meeting. In our opinion, Section 411 does no such thing. It gives the Commissioner a wide discretion according to the exigencies of the situation to allow some public meetings as for marriages and funerals without a licence, some others with a licence, and to prohibit some others either in particular areas or for particular days or occasions. Wide powers are essential in modern times, only they must be exercised by responsible officials in a reasonable manner. Mr. Raman has not been able to show us any order of the Commissioner prohibiting public meetings in the city of Madras for months to come and without giving any reason. There have been orders of the Commissioner prohibiting only demonstrations in front of the Assembly or in other particular areas. In other words, there has never been a total prohibition (the people and the Government would never have allowed that, and the Court would have issued a writ against it), and partial prohibitions in the whole of Madras City for a time only rarely, and even then there have been several public meetings as for marriages, funerals, sports, religious purposes or those held under statutory or legal authority without any need to take any permission at all. In our opinion, therefore, Section 41 has never, in theory even, allowed total prohibition of the right of public meeting. Mr. Raman is no doubt right in urging that each fundamental right, like the right of speech, meeting, worship etc. , is separate, and it is no answer when prohibiting a public meeting to say that the speeches intended to be delivered thereat may be printed and circulated among the persons likely to attend the meeting. But, as stated above, there is no total prohibition of public meeting without rhyme or reason allowed under Section 41. Now we shall scrutinise Section 41. It runs :"the Commissioner or subject to his orders, any police officer above the rank of head-constable, may, from time to time, as occasion may require, direct the conduct of all assemblies and processions in (public places), prescribe the routes by which and the times at which such processions may pass; keep order in (public places) and. prevent obstructions on the neighbourhood of places of worship during time of public worship and in any case when (public places) may be thronged or liable to be obstructed; and may (licence and regulate or prohibit the use of music or sound amplifiers in public places); and the Commissioner may prohibit any assembly or procession if he considers such prohibition to be necessary for the preservation of the public peace or public safety; and every person opposing or not obeying any order issued as aforesaid, or violating the conditions of any such licence, shall be liable on conviction to a fine not exceeding one bundled rupees. "No doubt, the Commissioner is given under it very wide powers but to be used as the emergency dictates. Mr. Raman's contention was that no police officer should be given such wide powers and that though the Commissioner was a justice of peace and a magistrate of sorts, the order he passes under Section 41 is as commissioner of Police, as a police officer, and his considering that it was necessary for the preservation of public peace or public safety would be only a matter of his opinion and that he might be influenced by his own prejudices, either political or personal, or slavish support of the patty in power unscrupulously. The learned Advocate General's reply to this was that where the Commissioner's orders are vitiated by mala fides, they could always be challenged on that ground either by a writ to this Court, before the prosecution, or in the criminal case, after the prosecution is launched, and that the mere possibility that a power may be abused is no reason for denying the power itself, or to strike down the section of the Act conferring that power. He cited several passages from the Supreme Court and other rulings mentioned above in support of his proposition and we agree that that he is right. There is no presumption that a high police officer will act unscrupulously and in order to please the political bosses. ( 10 ) IT follows from all this that Section 41 of the City Police Act cannot be held to be ultra vires and cannot be struck down as going against the provisions of Articles 19 (1) (a) and 19 (1) (b) of the Constitution, and that the Magistrate was quite right in holding that there was no need to refer that question, relating to the validity of section 41, to this Court.( 11 ) NOW, we come to the second point urged by Mr. Raman, viz. , that the general order of the Commissioner passed on 31-12-1957 extending his previous order under Section 41 because of the activities of the Dravida Kazhagam and the Tamil nad Socialist Party was illegal as it was sought to be applied not only to the dravida Kazhagarn and the Tamil Nad Socialist Party people but also to people totally unconnected with them, that is, to members of the Dravida Munnertra kazhagam which he claimed was antagonistic and opposed to the activities of the dravida Kazhagam and the Tamil Nad Socialist Party and its 18 points charter and believed in non-violence and high standards of conduct. He also said that while Section 41 did not mention the need to take out any licence, or the power to issue licences, the Commissioner had allowed certain meetings without any need for a licence and certain other meetings subject to a licence from him or the Assistant Commissioners of Police, and introduced "discrimination", offending against Article 14 of the Constitution. ( 12 ) WE are not satisfied that the reasoning of Mr. Raman in this respect, seeking to show the Commissioner's order dated 31-7-1957 to be void, is sound. That the dravida Munnetra Kazhagam believes in culture and non-violence and had no connection with the activities of the Dravida Kazhagam in erasing the word "brahmin" from certain hotel name boards, or with the activities of the Tamil Nad socialist Party and its eighteen points charter, will not vitiate the order of the commissioner dated 31-7-1957. The Commissioner, it is admitted by Mr. Raman, did not have the Dravida munnetra Kazhagam in view when he passed the order on that date. Mr. Raman is not in a position to deny that the Dravida Kazhagam and the Tamil Nad Socialist party did carry on some agitation, causing some disturbance, and some anxiety to the city police. He says he is not interested in arguing that matter. His grievance is that an order intended to meet a situation created by the activities of the Dravida kazhagam and the Tamil Nad Socialist Party has been applied to the Dravida munnetra Kazhagam which was forced to apply for a licence if it was to hold a public meeting. But this kind of situation is by no means unusual, still less will it make the application of the same rule illegal. It is not so much the Dravida Kazhagam and the Tamil Nad Socialist Party which worried the Commissioner, but, the hooligan elements exploiting the situation and likely to cause disturbances. When a state of disturbance exists, all are caught in it, good and bad, law-abiding citizens and hooligans alike, just as when an epidemic, like cholera, is on, even people observing ail sanitary rules are not immune, and, just as when a curfew is imposed it is clamped on law-abiding citizens also. It is inevitable that in such a situation caused by others the Dravida Munnetra Kazhagarn also should be caught in the not of the general order dated 31-13-1957.( 13 ) AS regards the exceptions referred to by Mr. Raman, as amounting to discrimination under Article 14, they are, in our opinion, reasonable classifications. Thus, marriages, funerals and religious assemblies are not likely to be participated in by hooligans. They are also least likely to break the law normally, in their own interests, and, were rightly exempted from licences. Statutory meetings or meetings under express legal authority are also not likely to cause disturbance or to be participated in by hooligans. Meetings sanctioned by a special licence by the commissioner or the assistant Commissioner of Police will also not cause disturbance, because the police will see to it that there is proper bandobust. Then there remain only assemblies and processions in which the Governor of madras or any Minister of the Union Government or the State Government participates. This too is not a favour conferred on his political bosses to carry their favour. Surely, in meetings in which they participate the police will be making the necessary bandobust, and so, there will be no chance of disturbance. We may add here that it has been held by a Bench of this court, to which one of us was a party, in Globe Theatres Ltd, v. State of Madras. (G), and in Naina mohamed v. Tirukalachari Panchayat Board, 68 Mad LW 903: ((S) AIR 1956 Mad 289) (H), that there is ample power, in suitable cases, to grant such exemptions based on reasonable classification, and that this has been recognised from the most ancient times, and will not amount to discrimination. So Mr. Raman cannot attack the order of the Commissioner dated 31-12-1957 as void on the ground of discrimination. ( 14 ) THE next ground urged was that the Commissioner should have served notices on Annadurai and other leaders of the Dravida Munnetra Kazhagam about their meeting likely to cause disturbances if held at Triplicane Beach (Tilak Ghat), peculiarly open to hooligans, and asking them to hold the meeting in some other less open place. But, in a sudden emergency, like that, where the names of all the persons likely to take part in a meeting could not he known to the Commissioner, it would be impossible for the Commissioner to serve notices on individuals, and, secure the desired ban. A general order, like the one passed on 31-12-1957, would be the one needed to secure the desired end.( 15 ) THEN Mr. Raman urged that the Commissioner should have given his reasons in full when refusing permission to Annadurai and the other Dravida Munnetra kazhagam leaders to hold the meeting on 3-1-1958 just as in an order of preventive detention full reasons are given so that the court may scrutinise them when challenged. Mr. Raman's complaint was that if he filed a writ petition in this court to quash the order of refusal, there would be no reasons on the face of the order for the court to scrutinise and satisfy, itself, about its un-sustainability, and no revision petition under Section 439, Criminal P. C. would also lie, as the commissioner is not a magistrate subordinate to this court. So he urged, rather iltogically, that Annadurai and others had no option but to defy the ban. ( 16 ) WE cannot agree. No law-abiding citizen need or should defy the ban, fraught with a danger of disturbance. He can file a writ. Absence of reasons in the commissioner's order may not always appear to the court to be a ground for not interfering with it. Nor is the order of the Commissioner refusing the licence to annadurai and others to hold the meeting at Tilak Ghat on 3-1-1958 an absolute negation of the right of the Dravida Munnetra Kazhagam people to assemble. They could assemble in 'any private building', without inviting the public also to assemble in thousands there. Mr. Raman said that the very life of a political party lies in inviting the public, and asking thousands to participate. That may be so. But then, the requirements of the law will have to be complied with. There was no special need to have the, public meeting only on that particular day and at Tilak ghat. It could have been postponed till the Government were moved against the commissioner's order, or the court was moved by a writ. Or it could have been held in a private building in Madras and confined to the members, or held outside the city limits. It will be remembered that the order dated 31-12-1957 applied only to the city and to public places in the city.( 17 ) LASTLY Mr. Raman asked whether there was no way in which Annadurai and others who had defied the ban, and are now being prosecuted for it, could challenge the validity of the Commissioner's order dated 31-12-1957 imposing the ban. Of course, they can challenge the Commissioner's order, as the learned advocate General himself admitted, on two grounds mentioned by Mr. Raman, viz. , that the order was 'outside the scope of Section 41, in which case the ruling in krishnalal v. Emperor, 35 Ind Cas 1008: (AIR 1917 All 450) (I), would normally apply, and secondly on the ground of 'mala fides'. In Smith v. East Ellore Rural Dt. Council, 1956 AC 736 (T), and, in W. P. No. 47 of 1958 (Mad) (K), on the file of this court, it has been held that mala fides stands in a class by itself, and that any order vitiated by mala fides is not a legal order which will be sustained in any court, and that disobedience and defiance of such a void order will be no offence. ( 18 ) THE learned Advocate General urged that that, in this case, Annadurai and others had not alleged mala fides and laid the foundation for that attack on the commissioner's refusal to grant a licence for the meeting on 3-1-1958. He also urged that the order of the Commissioner dated 31-12-1957 and his order refusing a licence were well within the scope of Section 41. We give no opinion on these points, which can be urged, for what they are worth, before the lower court during the trial. But, besides these two points, we do not see any right on the part of the accused to challenge the Commissioner's order dated 31-12-1957 or his order refusing a licence for the meeting on 3-1-1958. No doubt, Mr. Raman is right in saying that the lightness of the sentence for the disobedience of the ban in the order, viz. , a petty fine, is no reason why the order should not he challenged on legal grounds if otherwise available. But, we are of the opinion that, in the circumstances, only these two grounds are available to the accused before the lower court to challenge the orders of the commissioner. There is no question of their being allowed again to agitate the matter of fundamental rights and the denial of fundamental rights by the commissioner in his general order or in his special order refusing the licence. No such question can be raised in the lower court. Of course, Mr. Raman is right in saying that if he can convince the lower court that the order of the Commissioner dated 31-12-1957 or 2-1-1958 was so unreasonable that no reasonable person can ever hold it to be reasonable, it may prove 'mala fides'. But, it is obvious that this will fall under the ground of mala fides, and it will not be a third head of attack. ( 19 ) WE answer the reference accordingly.
"1959 CrLJ 204"