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Bombay High Court
Emperor vs Gulam Kadar Saheb on 20 December, 1927
Equivalent citations: (1928) 30 BOMLR 367
Author: Fawcett
Bench: Fawcett, Mirza


Fawcett, J.

1. [His Lordship, after stating the facts as above, proceeded.] Mr. Thakor on behalf of the accused has urged that the order in question cannot be held to fall under Clause (a) of Sub-section (1) of Section 53 of the Bombay District Police Act 1890. This clause says:

It shall be the duty of a police-officer to regulate and control the traffic in the streets, to prevent obstructions therein and, to the best of his ability, to prevent the infraction of any rule or order made under this Act or any other law in force for observance by the public in or near the streets.

2. His contention is that these words should be considered quite independent of any special circumstances such as arose in the present case, and that it would be absurd to hold that a police constable on traffic duty in a street has the power to stop persons having a right to go along that particular street, and to order them to go by another way to their destination. He also pointed out that Section 48 of the Bombay District Police Act vests in higher authorities, viz., the District Superintendent of Police, or an Assistant or Deputy, the power to make rules regarding the conduct and behaviour of processions such as the one in question, and he urged, therefore, that a police constable cannot exercise a power of that kind. I think that the argument has a certain amount of truth, and it is this, that in ordinary circumstances undoubtedly a police constable has not the power to stop a person from proceeding along a particular street and order him to go by another. He can, of course, stop him for a certain time in order to regulate traffic so as to prevent the traffic getting mixed up and obstructing passage along the street; but he ordinarily would not have the power to prevent a person from proceeding along it. Even in the case of his stopping him from going along it for a limited time, a question might arise whether the direction to stop was a reasonable one in the circumstances of the case, as is implied by Sub-section (2) of Section 53. But I refuse to follow Mr. Thakor to the conclusion of his argument and say that, in no circumstances whatever, can a police-officer under the powers that are conferred by this Clause (a) ever give a direction such as was given in this case, that certain persons should proceed along a portion of a street, but should follow another route. If Clause (a) merely used the words “to regulate the traffic in the streets”, then possibly there would be a good case for Mr. Thakor’s contention; but the words actually used are “to regulate and control the traffic in the streets,” and the word “control” is certainly a very strong expression. One of its main dictionary meanings, as given in Webster, is “restrain, govern, overpower, counteract” and the derivation of the word throws an interesting light on how it has come to have this meaning. It is derived from the French word “contre-role,” i. e., a duplicate roll or register; and the idea suggested is that by keeping a duplicate roll or register you have a check on alterations in a register and so can prevent dishonesty, &c. From this came the meaning of something which serves to check, and so the further meanings of restrain or hinder. The ordinary meaning of the verb “control” thus conveys an idea of hindering or checking a person in doing something; and, of course, the extent of any particular prevention must depend upon the special necessities of the occasion. For instance, supposing that there was a sudden subsidence of a part of a street, such as has often been known to happen, can it possibly be said that in the circumstances a police-officer on duty there would not have the power to prevent people from going along the street, so as to prevent the possibility of danger to themselves? The answer is, I think, clearly in the negative because under Section 52, Clause (g), the duty of every police-officer is to use his best endeavours to avert any accident or danger to the public. Then, to come to a case like the present, the circumstances were such that to allow the procession, of which the accused were members, to proceed along this street, with the almost certain prospect of a riot resulting, is certainly on a par with the instance I have given, for it is the duty of every police-officer, among other things, under Section 51(1)(6), to the best of his ability, to take such steps, consistent with law and with the orders of his superiors, as shall be bast calculated to prevent the commission of offences. The police-officers, in question, certainly were, in my opinion, justified in doing all they could to prevent a riot, such as was obviously imminent, if the two processions were allowed to meet. Therefore, I can see no sufficient reason for saying that the directions given by the police constables in question are not covered by the powers given them under Clause (a) of Sub-section (1) of Section 53.

3. Even supposing that this particular clause does not cover those orders, I think that they would be covered by Clause (6) of the same sub-section, under which it is the duty of a police-officer “to keep order in the streets”. These particular police constables, as is shown by the Magistrate’s judgment, were specially deputed to keep order and control traffic and avoid all possibilities of disturbance in connection with the Hindu procession; and the maxim that “prevention is better than a cure” obviously applies to a case of this kind. These police constables, having this duty to keep order, were certainly authorized, in my opinion, to give the directions they did, so as to try and prevent disorder from happening. I have not the slightest hesitation in concurring with both the lower Courts that the directions that the police constables gave in the circumstances were reasonable directions, and that, therefore, it was the duty of the accused to conform to those directions, and that the case falls under Section 153 of the Indian Penal Code. I think that there is clearly no sufficient reason to admit this application for further arguments. I would, therefore, reject it.

Mirza, J.

4. I agree

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