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1993 DIGILAW 88 (KER)

Narayanan Nambiar v. State of Kerala

1993-02-09

L.MANOHARAN

body1993
Judgment :- Petitioner who is a Member of the Kannur Co-operative Hospital Society Ltd. (for short'the Society') seeks to quash annexure-1 order issued by the District Magistrate and District Collector, Kanriuras per Ss.21, 21A and 23 of the Kerala Police Act, 1960 (Act 5 of 1961) (for short 'the act). Petitioner contends that he said order is without authority, incompetent and is vitiated by malafides. It is also alleged that, the authority passed the order mechanically without application of mind, and that, no circumstance exists to justify such an order which is an inroad into the fundamental right of the petitioner. 2. annexure-1 order slates that, since the authority is satisfied from the report of the Superintendent of Police, Kannur that, there is every possibility of breach of peace in connection with the elections to the Director Board of various Co-operative Banks/ elections to be held in the first fortnight of February 1993, it is essential to prohibit processions, public assembly, meetings and carrying deadly weapons etc. in the limits of Kannur Town and City Police Stations. The order Annexure -1 dated 4-2-1993 prohibits the following: 1. The carrying of swords, spears, bludgeons, guns or other offensive weapons in any public place. 2. The carrying, collection and preparation of stones or other articles intended to be used as missiles, or of instruments or means of creating or of instruments or means of creating or of impelling missiles. 3. The exhibition of persons, corpses, figures, or effigies in any public place. 4. The public utterance of cries or slogans, singing of songs or playing of music und, 5. The procession or public assembly". It is stated in annexure-1 that, the order will take effect from 8-2-1993 and will be in force till 14-2-1993. 3. Learned counsel for the petitioner particularly attacked clauses 4 and 5 of annexure-1. In support of the contention, that annexure-1 is directed against fundamental right of the petitioner learned counsel relied on the decision in Kameswar Prasad v. State of Bihar (AIR 1962 SC 1166) which held that the right to make demonstration is covered by the two freedoms guaranteed under Arts.19(1)(a) and 19(1)(b) of the Constitution. In support of the contention, that annexure-1 is directed against fundamental right of the petitioner learned counsel relied on the decision in Kameswar Prasad v. State of Bihar (AIR 1962 SC 1166) which held that the right to make demonstration is covered by the two freedoms guaranteed under Arts.19(1)(a) and 19(1)(b) of the Constitution. It is observed in the same judgment: "It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance Stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. i9(1)(a) or (b)." Learned counsel also relied on the decision in Hitnat Lai v. Police Commisioner, Ahmedabad (AIR 1973 SC 87) to contend that freedom* of assembly is an essential element in any democratic system. According to the learned counsel, annexure-1 affects the said freedom. It has to be observed in this connection that, freedom under Art. 19 of the Constitution are subject to reasonable restrictions. The validity of Ss.21, 21-A and 23 of the Act is not in challenge. The effect of an order under the said Sections is to suspend the lawful right for the purpose of securing public peace and safety. The only question to be looked into is whether there exists material for the exercise of the power under the said Sections and whether the same is vitiated by malafides as is contended by the learned counsel for the petitioner. 4. One of the points urged by the learned counsel for the petitioner is that, clause 5 of Annexure 1 can affect even the convening of a meeting as contemplated under S.29 of the Kerala Co-operative Societies Act, 1969. 5. Learned Additional Director General of Prosecution placed before me the Photostat copy of the letter by the Accountant-in-charge of the society dated 8-2-1993 addressed to the District Collector seeking permission to convene the meeting for the purpose of election, and the proceedings of the District Collector and District Magistrate, Kannur dated 8-2-1993 in response to the same. It is stated therein: "Permission is hereby granted to the Secretary, Kannur, Co-operative Hospital Society for the conduct of a meeting in connection with the election to the Director Board of Co-op. It is stated therein: "Permission is hereby granted to the Secretary, Kannur, Co-operative Hospital Society for the conduct of a meeting in connection with the election to the Director Board of Co-op. Hospital Society on 10-2-1993 at the Girls' High School, Kannur." Thus, the attack against annexure-1 that the said order would even affect the conduct of a meeting as contemplated under S.29 of the Kerala Co-operative Societies Act, 1969 cannot be sustained. 6. Undoubtedly, the District Magistrate has got necessary power to issue an order like annexure-1 as per Ss.21,21-A and 23 of the Act. Now the relevant question for consideration in that context is, whether the exercise of the power by the concerned authority is vitiated by all or any of the reasons alleged by the petitioner. For the exercise of the power under the said Sections of the Act the concerned authority must be satisfied as to the existence of the conditions therein, and the exercise of the said power should be for preserving public peace and public safety. 7. annexure-1 itself states that the authority was satisfied as to the existence of the said condition as per the report of the Superintendent of Police, Kannur. It was not a case where there was absence of any material before the authority to reach the satisfaction. 8. Learned Additional Director General of Prosecution placed before me the photostat copy of the said report referred to in Annexure -1 order. The report makes mention of the violent incidents in certain parts of Kannur District; some of which were in connection with the election to the Director Board of Societies. Though those were not in Kannur Town, since they were in Kannur District the same could create a reasonable apprehension that, such incident could be repeated during the election in the society in question unless preventive measures are not taken. An adjudication on disputed facts generally is not contemplated under S.482 Cr.P.C. As noticed, what is necessary is reasonable apprehension of breach of peace. It is the Magistrate who knows the local conditions to say whether the emergency exists or not. When the concerned authority is shown to have reached the satisfaction on certain materials and the order was passed on the basis of the same, unless the order on the face of it is absurd or malafide, the High Court in its inherent power ordinarily cannot interfere. 9. When the concerned authority is shown to have reached the satisfaction on certain materials and the order was passed on the basis of the same, unless the order on the face of it is absurd or malafide, the High Court in its inherent power ordinarily cannot interfere. 9. As to the contention that the order is to take effect only on 8-2-1993 though the same was rendered on 4-2-1993, it is no doubt necessary that the apprehension should be imminent but such apprehension could be in relation to an event. Then in exercise of the power to prevent disorder during the said event, steps could be taken before the said event provided such steps have nexus with the said apprehension. The steps need be proximate to the event. The order was on 4-2-1993, the election is scheduled to take place on 10-2-1993 and the order is to take effect from 8-2-1993. The apprehension of the authority on the basis of the report of the Superintendent of Police that breach of peace will occur in connection with the election, in the circumstance cannot be lost sight of. The process and preparation of election starts ahead of the polling is a factor that cannot be lost sight of. The wording of Ss.21, 21-A and 23 of the Act would show that, the authority can pass an order so as to take effect on the happening of the said event. Here, the order is seen passed by the authority on being satisfied as per the data placed before it that there would be law and order situation in connection with the election in the Cooperative Society in question. This court in exercise of its inherent power under S.482 Cr.P.C. cannot sit on judgment as to the genuineness of the said data. The materials placed before court do not justify a conclusion that the exercise of power by the District Magistrate is vitiated by malafides. In view of the circumstances discussed above, the Crl.M.C. is liable to be dismissed. In the result the Crl.M.C. fails and the same is dismissed.