Mohamudkhan And Ors. vs Emperor on 13 February, 1948

Bombay High Court
Mohamudkhan And Ors. vs Emperor on 13 February, 1948
Equivalent citations: 1949 CriLJ 329
Author: Hemeon
Bench: Hemeon


Hemeon, J.

1. The applicants, Mohammad Khan, Abdulla Khan, Ibrahim and Imamshah were all convicted and each sentenced to undergo 15 days, 4 months and 6 months rigorous imprisonment, running consecutively, under S3.34.1,148 and 296, Penal Coda respectively by the First Class Magistrate, Malkapnr. In the same trial Abdul Razzak, the applicant in Criminal Revision No, 276 of 1947, was similarly convicted and sentenced. In appeal, the First Additional Sessions Judge, Akola, maintained the convictions but ordered the sentences to run concurrently. The applicants have all now come up in revision to this Court and it may here be added that their co-accused Bhikan,. Abdul Rauf and Rasulshah were acquitted in the trial Court.

2. The prosecution case was, briefly stated, as follows. On the night of 20th September 1946, the Mahara of Dhamangaon, Malkapur taluq. Buldana district, took out their yearly Samapti procession and were proceeding by the customary route in front of the mosque when they were stopped by the accused, prevented from going by that route and threatened with attack if they did so. They accordingly diverted their procession and went by a route behind the mosque.

3. The applicants all denied that they had interfered in any way with the processionists on the night in question and the applicant Abdul Razzak added that he as police patel was in the middle of the procession in order to maintain order. He also stated that he did not know on which side of the mosque the procession used to pasa in previous years. The agreement (Ex. P 5) of 1944, on which the accused relied, related to the Balaji Sansthan and under its terms the procession to that temple was permitted to pass on tbe road in front of the mosque hut without music. The Mahars were not parties to that agreement and Balaji Sansthaniwa,s entirely different from the Mahar Sansthan; but even if they were bound by that agreement, they had not contravened it on the night in question and had stopped the music before they reached the mosque.

4. In India, as their Lordships of the Judicial Committee o the Privy Council pointed out in Manznr Hussain v. Muhammad Zaman, , there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public and subject to lawful directions by the Magistrates. In Mohammad Jalil Khan v. Bam Bath Katua, it was held that this right was an inherent right, that persons of every sect are entitled to take out religious processions through public streets provided that they do not interfere with the ordinary use of. such streets by the other members of the public, that the taking out of a procession accompanied with music, whether as ft part of religious worship or not, is within the civil rights of a community, but not an exclusive use of the highway for worship and that worshippers in a mosque or temple which abuts on a highway have no right to compel processionists to stop their music completely while passing a mosque or temple on the ground that there was continuous worship inside it.

5. The Mahars in the present ease, were, therefore, entitled to take the procession accompanied with music on the road in front of the mosque and it was not suggested that the procession interfered with the ordinary U3e of the road by the public or that it contravened any traffic regulation or lawful direction issued by the authorities. In fact, the Mahars did not stand on their rights, stopped the music before the mosque wag reached and went to their temple by another route, as they had been confronted by a big crowd of Muslims some of whom were armed with lathis.

6. The applicants, other than Abdul Razzak, were so armed and it was clear from the evidence on record that they had threatened to beat the processionists if they did not take another route to their temple. It was also clear that Gulam Hussain (d. w. 7), then Head Constable, who was in charge of the procession, aided with the Muslims, but there was no substance in the contention that the diversion of the procession was entirely due to him. His account to the effect that the procession was not obstructed and that the diversion was due to the proposal of local Mahars was manifestly false, but he did not assert that ho had taken any part in the incident. Dashrath (p. W, 3), constable, who was on duty with him, avowed that the accused had disregarded the Head Constable and announced that they would not permit the procession to pasa in front of the mosque. The other evidence showed, however, that the Heacl Constable and the applicant Abdul Razzak had told the processionists that they should take a different route and it was further clear from this evidence that the interference of those 2 persons came after the halting of the procession and the intimidation of its members.

7. The applicant Abdul Razzak was not with the accused but on duty with the procession as police patel of the village and in that capacity he would act according to the orders of the Head Constable. He was not a member of an unlaw-ful assembly and had not wrongfully restrained any one or caused disturbance to the procession, All that he had done wa3 to advise the processionists not to pasa the mosque and while this indicated a disregard of their right, it was also in the interests of public tranquillity and in accordance with the stand taken by the Head Constable who was in charge of those on procession duty. The convictions of this applicant under Sections 143, 296 and 311, Penal Code, were, therefore, wrong.

8. There were originally 8 accused, but 3 of them were acquitted for the cogent reason that although their names were known to the prose. cution witnesses concerned, they were not mentioned in the first information report. This left’ the 5 applicants and a Abdul Razzak has now been acquitted, the position is that the 4 other applicants were responsible for what happened at the relevant time. In view of their number, the convictions under Section 143, Penal Code, cannot be supported. It is, however, clear that they were liable under Section 341, ibid, as they had obstructed the processionists and thereby prevented them from proceeding in the direction in which they had a right to proceed.

9. Section 29G, ibid, runs as follows:

Whoever voluntarily cause disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a terra which may extend to one year, or with fine, or with both.

The contention that as the music had stopped when the disturbance took place, the assembly was not then lawfully engaged id the performance of religious worship or religious ceremonies cannot be accepted. The procession had not changed its character merely because the music had been temporarily stopped and a3 the evidence showed that the Mahars’ holy book was being taken to their temple, it was clear that a religious ceremony was in progress from the time when the procession started, The contention that the procession could not be so lawfully engaged on a highway; s without force, in view of the decisions in Manzur Husain v. Muhammad Zaman, and Muhammad J alii Khan v. Bam Nath Katna, cits up.

10. The convictions and sentences of Abdul Razzak ace, therefore, set aside. The convictions of Mohammad Khan, Abdulla Khan, Ibrahim and Imamshah under Section 143, Penal Code, are set aside, but their convictions under Sections 341 and 296, ibid, are maintained. Each of them was sentenced to consecutive terms of 15 days and 6 months rigorous imprisonment under- these 2 sections by the trial Court, but the appellate Court ordered the terms to run concurrently. Although the conduct of the applicants was high-handed and reprehensible, I do not think that there is any need to return them to jail. The offences which took place about 17 months ago were not attended with violence and the applicants have each spent about a week in prison. They will have learned their lesson but having regard to the comparative gravity of the offences, it would be proper to visit them with substantial fines. Each of the applicants shall pay fines of RS. 50 and Rs. 150 under Ss, 841 and 296 respectively of the Penal Code. In default of payment of the fine of its. 50, they shall each undergo .1 week’s simple imprisonment and in default of the payment of the fine of Us. 150, they shall each undergo 2 months rigorous imprisonment.

11. Subject to these modifications, the application of Mnhammad Khan, Abdulla Khan, Ibrahim and Imam Shah is dismissed.

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