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1963 Supreme(Ori) 2
HIGH COURT OF ORISSA
R. K. Das, J.
SHAIK PIRU BORK - Appellant
Versus
KALANDI PATI - Respondent
Second Appeal 365 Of 1960
Decided On : JANUARY 02, 1963
C.V.MURTHY, H.KANUNGO, L.K.DAS GUPTA, R.N.MOHANTY
The right to take out religious processions on public roads is a fundamental right, but it is subject to reasonable restrictions in the interest of public order.
Headnote:
PUBLIC ROAD - RIGHT TO TAKE OUT PROCESSIONS - RESTRICTION ON MUSIC NEAR MOSQUE - VALIDITY - RELIGIOUS FREEDOM - PUBLIC ORDER - SECTION 144, CR. P. C. - INTERPRETATION - SCOPE OF MAGISTRATE'S POWERS.
Fact of the Case:
The plaintiffs, a Hindu community, filed a suit for a declaration of their right to take out religious and social processions with appropriate music along the public roads of their village, including those by the side of the defendants' mosques. The defendants, a Muslim community, contended that the plaintiffs were bound by a previous compromise to stop music near the mosques at the time of congregational prayers and that the suit was not maintainable.
Finding of the Court:
The court held that the previous compromise was not binding on the plaintiffs as it was not entered into in a representative capacity and that the plaintiffs had an absolute right to take out processions with music in all the public thoroughfares. The court also held that the defendants could not insist upon the complete stoppage of the music or to carry the same in a low sound.
Issues: 1. Whether the previous compromise was binding on the plaintiffs? 2. Whether the plaintiffs had an absolute right to take out processions with music in all the public thoroughfares? 3. Whether the defendants could insist upon the complete stoppage of the music or to carry the same in a low sound?
Ratio Decidendi: 1. The court held that the previous compromise was not binding on the plaintiffs as it was not entered into in a representative capacity. The court relied on the fact that none of the plaintiffs, excepting plaintiff-12, and none of the defendants was a signatory to the agreement and that there was nothing on record to show that the signatories had any authority whatsoever to bind the community as a whole. 2. The court held that the plaintiffs had an absolute right to take out processions with music in all the public thoroughfares. The court relied on the decisions of the Madras High Court in Sundaram Cheety v. The Queen and the Allahabad High Court in Md. Jalil Khan v. Ramnath Katua, which held that there is an inherent right in every community to take out religious processions with its appropriate observance along the highways and that such a right is not dependent on the proof of any custom or long standing practice. 3. The court held that the defendants could not insist upon the complete stoppage of the music or to carry the same in a low sound. The court held that the Magistrate has powers to put restrictions under Section 144, Cr. P. C. on the ordinary right of using public thoroughfares when there is an apprehension of danger or nuisance, but that such restrictions cannot be imposed on the right of the plaintiffs' community to take out processions with appropriate music.
Final Decision: The court allowed the plaintiffs' appeal and set aside the lower appellate court's order directing the plaintiffs to take out processions with a "low sound music except drum-beating". The court also dismissed the defendants' cross-appeal.
DAS, J.
( 1 ) THIS is a defendants' Second appeal against the reversing judgment dated 14-41960 of the Additional Subordinate Judge of Cuttack, modifying the decree of the additional Munsif of Jajpur.
( 2 ) ALAKANDU and Nuagon are two adjoining villages within Binjharpur police Station in the District of Cuttack. A District Board Road passes by the side of the village road and the Hindu community of both the villages live on both sides of the road. The Muslim residents of these two villages have two mosques one situate in village alakunda to the north of the District Board Road and the other is situated in village nuagaon to the north of the village road both the mosques standing by the side of the aforesaid road. The plaintiffs' case is that the Hindus of the two villages used to take out religious processions accompanied by appropriate music on occasions like Dolejatra, shivratn, Kartik Purnima etc. and Astaprahari Kirtans also used to pass on the said route. They also used to take other non-religious processions accompanied by music on the said route. This, they have been doing since time immemorial without any interruption until 1952 when on the Kartik Purnima day while the plain-tiffs' community took out their procession on the said route, the defendants obstructed them and succeeded in obtaining a prohibitory order under Section 144, Cri. P. C. against the plaintiffs' community and also started security proceedings under Section 107, Cri. P. C. thus depriving the plaintiffs' community of their fundamental right to use the highway in the manner they had hitherto been doing. The plaintiffs thus were constrained to file the present representative suit for declaration of the right of the Hindu Community to take all religions and social processions with appropriate music along the District Board Road, village road, and other public highways of the locality including those by the side of the defendants' mosques, Without any interruption whatsoever and prayed also for permanently restraining the defendants' community from interfering with such rights a the plaintiffs.
( 3 ) THE defendants, amongst other objections, contended that on account of similar disputes 'between the two communities in the year 1931 a proceeding under section 107, Cri. P. C. was started and a compromise (Ext. H) was effected between the leading members of the two communities on 18-1-31 as a result of which the proceedings were dropped, and subsequently with the approval and tacit consent of both the communities brick pillars on both sides of Alkunda mosque with the inscription "bajabajaiba Nishedha" were erected to indicate to the processionists to stop music within specified limits near the mosque. In accordance with the said compromise the plaintiffs' community used to stop music within the limits thus specifies whenever they used to take out processions. This was done until the year 1952 when the plaintiffs community sought the co-operation of the defendants' community to prevent cow-slaughter and on the refusal of the defendants' community to do so, the plaintiffs' community out of vengeance violated the terms of the compromise and created disturbance at the time of offering of prayers in the said mosques by the defendants' community. It was the further case of the defendants that the plaintiffs' community being bound by the previous compromise under Ex. H were estopped from re-agitating the matter in the present suit, and in any case the suit is not otherwise maintainable.
( 4 ) THE learned Munsif held the suit to be maintainable. He found 'that the plaintiffs were bound by the previous compromise and though they have a right to take out processions accompanied with music on the aforesaid public road they have no right to play music near the mosque at the time of congregational prayers of the defendants' community. He accordingly passed an order to the following effect:
"the suit be decreed modifiedly as follows: the plaintiffs have a right to ta
