In Re: Kolli Satyanarayana Choudari

Krishnan Pandalai, J.—This is a petition to revise an ex parte order tinder Section 144 of the Code of Criminal Procedure made by the

District Magistrate of Guntur on the 20th June, 1930, prohibiting the public from wearing Gandhi caps in any place frequented by the public within

the limits of the Guntur Municipality and a radius of five miles therefrom for a period of two months and an order passed by the same Magistrate

on 10th July refusing to rescind the first order on a petition by the present petitioner dated the 2nd of July, 1930.

The circumstances in which the ex parte order came to be passed are as follows:--On the 14th of June the District Magistrate passed two

orders u/s 144, in view of the Civil Disobedience Movement, one prohibiting processions of more than four persons and public meetings in Guntur

and the other directing the volunteers to leave the Sibiram. On the 15th, as the volunteers did not leave the Sibiram, it was raided and captured and

the volunteers dispersed. During the next two days the Police were patrolling the streets to see that the orders were obeyed and that the volunteers

who were mostly not natives of Guntur left the place. Complaints arose that the Police on those days tried to prevent people wearing Khaddar

dress and Gandhi caps on the roads and were molesting those that did so. On the 18th ten inhabitants of Guntur including the President of the

District Board, the present and former Chairman of the Municipality and other respectable persons presented to the District Magistrate a written

representation complaining of molestation by the Police of people wearing Gandhi caps and Khaddar and asking for protection. At their request

they were granted an interview by the District Magistrate on the 18th. As the record in this case did not contain an authoritative account of what

transpired at this interview I called for a report from the District Magistrate. He has submitted a confidential communication.'' One only of the

deputationists was able to vouch for the accuracy of the complaints from his own knowledge. Another, member of the deputation (apparently on

behalf of all) asked whether the people might wear Khaddar and Gandhi caps. The District Magistrate said they might but must take the risk of

being confused with the volunteers who were going about with their usual badges, and that the volunteers, would not be allowed to remain in the

town any longer. The deputationists requested the District Magistrate to speak to the District Superintendent of Police to which the District

Magistrate said he had already done so. In fact the District Magistrate had already urged the District Superintendent of Police to see that his men

kept within the law. The deputation naturally understood that there was nothing illegal in merely wearing Khaddar or the Gandhi cap and that the

District Magistrate had already taken steps to prevent molestation by the Police for wearing such dress. The only practical inconvenience for

people so dressed was of being mistaken by the Police for volunteers who were required to leave the place as most of them were strangers at

Guntur.

The deputation having got the District Magistrate''s assurance of protection from unlawful molestation thought it proper in order to allay public

excitement to intimate the fact to the people who were making complaints of molestation and ordered a handbill in the following terms to be printed

in a local press:

When we went to the Collector to-day and told him about the conduct of the Police, he told us that he would take proper steps to see that the

Police do not molest volunteers or other residents of the town for merely wearing Khaddar or the Gandhi caps.

Then follows the names of the deputationists. The Police came to know that this handbill was being printed with a view to its circulation. They

thereupon went to the Press and seized all the copies before any could be circulated and immediately made an application to the District

Magistrate stating as follows:

There was information that about nine people of Guntur approached the District Magistrate, Guntur and made allegations against the Police and

that the District Magistrate did not believe them. To incite the public to gradually defy the orders u/s 144, Criminal Procedure Code, issued by him

on the 15th instant, these people sent a notice to the Vani Press for printing and to give them a number of copies for publication in Guntur Town.

These notices contain falsehood carefully and cunningly worded. The publication of these notices in Guntur Town may lead to breach of peace and

public tranquillity. I produce a copy of the notice. I want an order u/s 144, Criminal Procedure Code, issued prohibiting the wearing of Gandhi

caps by the public in general in Guntur Town and within five miles of its boundary.

Thereupon, the District Magistrate passed the order in question which is as follows:

Whereas the public tranquillity has been disturbed by the Civil Disobedience Movement and wearing of the Gandhi cap is a symbol of sympathy

with that movement and whereas information has been laid before me that a notice is about to be issued to the public in general which will have the

effect of inciting them to wear Gandhi caps and (so) disturb the public tranquillity, I...District Magistrate, consider that immediate prevention is

desirable and direct every member of the public in general to abstain from wearing a Gandhi cap when in any place frequented by the public within

the limits of Guntur Municipality and a radius of five miles therefrom for a period of two months from this date.

The petitioner, an advocate and secretary of the Bar Association of Guntur, purporting to act in pursuance of a resolution of that body,

petitioned the District Magistrate on the 2nd of July u/s 144 (4) to rescind the above order stating that the handbill mentioned in the order was not

an incitement to commit any illegalities at all, but only intimation of the fact that the District Magistrate himself had promised to protect the people

against molestation for wearing Gandhi caps and Khaddar, that there was neither imminent nor in fact any danger of any breach of the peace or of

the public tranquillity by reason of the people wearing Gandhi caps, that the public had a right to wear what dress they liked and that the order was

an unwarranted interference and not being justified by any interest of the public peace should be rescinded. When the petition came on for hearing,

no witnesses were examined at all, but the petitioner was allowed to file on the 8th of July an affidavit setting out more fully the contents of his

petition. It referred to the representation of the deputation and the petition put in by them and asked that it might be exhibited in the case. It denied

the allegation in the first information report by the Police that the District Magistrate, in the interview the deputationists had with him, said that their

representations were all false; it denied the allegation of secret meetings in the houses of people to concert measures to throw obstacles in the way

of the Police and concluded by stating that the handbill proposed to be circulated only stated the fact which was true that the District Magistrate

had assured the deputation of protection from illegal molestation for wearing Gandhi caps and Khaddar dress. On the other side the Police through

the Public Prosecutor contented themselves by filing a Memorandum of Objections. Not even an affidavit was filed. The Memorandum of

Objections stated that the petitioner had no locus standi to move the Court as he was not a person aggrieved by the order and it ended by the

surprising statement that ""on the merits of the case it is not proposed to make any reply as the application is manifestly unsustainable."" On these

materials, the District Magistrate passed his-order of the 10th July declining to interfere.

Before proceeding further, I think that when an ex parte order u/s 144 is called in question under Clause (4) of that section, the normal

procedure should be for evidence to be recorded in the usual way by examination and cross-examination of witnesses in open Court. The

proceeding is a judicial one Muthuswami v. Thangammal Ayiyar ILR (1929) M. 320 : 58 M.L.J. 148 and though I am not aware of any provision

in the Criminal Procedure Code prescribing the mode of taking evidence in such an enquiry it is desirable whenever possible to adopt the normal

procedure. The learned Advocate-General conceded that the normal procedure of recording evidence in open Court should ordinarily be adopted.

But he stated that in this case no evidence had been shut out. The difficulty in this part of the case is that on the crucial point, namely, whether the

wearing of Gandhi caps has any reasonable connection with disturbance of the peace or public tranquillity, the order entirely rests on statements

contained in itself which there is no means of testing by the evidence. The main point is whether there was any such urgent apprehended danger as

called for action under the section and, if there was, whether the act prohibited, namely, the wearing of Gandhi caps, was such as was likely to

prevent or tended to prevent the threatened disturbance of public tranquillity. The Magistrate first considers as the main question whether the

Gandhi cap is part of the ordinary dress of the people. He may have been misled into thinking that this was the main question by the contention of

the petitioner before him that the Gandhi cap was the ordinary dress of the people. The Magistrate came to the conclusion that in that part'' of the

country the Gandhi cap was not the ordinary dress of the people but had become general among the followers of Mr. Gandhi for about ten years.

As he puts it, it showed that the wearer was interested in something in which Mr. Gandhi was interested. To that extent I agree with him but when

he goes on to say that because the Gandhi cap shows sympathy with something in which Mr. Gandhi is interested, and because Mr. Gandhi is now

interested in the Civil Disobedience Movement, the wearers of Gandhi caps are also sympathisers with the Civil Disobedience Movement, I must

with respect disagree. The question is really one of general knowledge, and this Court is as much in a position to know matters of general

knowledge as the Lower Court. It is impossible for me to say that at the present'' day people who wear Gandhi caps may be inferred therefrom to

be supporters of the Civil Disobedience Movement. Such an inference would be an injustice to those numerous persons who have been wearing

that cap as a mark of sympathy with ''Mr. Gandhi''s views from a time long anterior to the Civil Disobedience Movement. For, it is well known that

Mr. Gandhi is interested in several other things than the Civil Disobedience Movement which have or ought to have no connection with it; for

instance, elevation of the depressed classes, prohibition of child marriage, encouragement of Indian industries and temperance. It is unjust to those

who take an interest in Mr. Gandhi''s harmless activities to impute to them sympathy with Civil Disobedience Movement because they wear Gandhi

caps. Finally, the representation by the deputation of ill-usage by the Police of wearers of Gandhi caps and the District Magistrate''s opinion that

people might wear such caps provided that they did not mind the risk of being mistaken for volunteers and his warning to the Police to keep within

the law all show that on the 18th June the Gandhi cap was not in the opinion of the District Magistrate an emblem of the Civil Disobedience

Movement.

What then was the urgently apprehended danger? From the order as first issued, it would appear as though the apprehended danger was the

wearing of Gandhi caps by the people of Guntur. Obviously the danger intended by the section is a danger to the public tranquillity. It is difficult to

see how the wearing of caps was in the circumstances in itself a danger to public tranquillity. The Magistrate explains that in the order originally

issued the word ""so"" was by a clerical error omitted before the word ""disturbed"". When the omission is supplied he says that the intention of the

order is clear. 1 do not see how the addition of the word ""so"" supplies the missing link unless we are to suppose, as apparently the Magistrate was

of opinion, that the wearing of Gandhi caps was itself a disturbance of the public tranquillity. It seems to me that the order discloses a confusion of

thought by identifying disturbance of the peace or tranquillity which is the apprehended danger with the act or acts which are to be forbidden as a

means of preventing the danger. In short, the order does not disclose any danger to the public peace itself unless we are to suppose that the

wearing of caps became on 20th June an indication of danger to public peace or tranquillity. If- on the 18th the wearing of these caps was

permissible and the only danger was to the cap-wearers themselves of the Police mistaking them for volunteers, how did the caps become on the

20th a danger to the public peace?

The most important point in the case is whether the prohibition of the cap was necessary in the interests of peace in the sense that it was likely to

prevent or tended to prevent the disturbance of the public tranquillity. On this point, I adopt the learned Advocate-General''s words when he said

that the real test to see whether the present order was justified or not is to find out whether the act, be it lawful or unlawful, was likely to lead to a

breach of the public tranquillity. On this point, the learned advocate for the petitioner has subjected paragraph 5 of the Magistrate''s order of the

10th July to a searching and rigorous criticism. He argues that instead of founding"" himself on probabilities the Magistrate has relied on surmises in

trying to establish a connection between the Gandhi caps and public tranquillity. I do not agree with the advocate''s criticism that the object of the

order was political. There is no reason to regard the object of the order as otherwise than what it should be, but that is not enough. It must be

supported on substantial grounds. The substance of the criticism is that an act prohibited u/s 144 must only be so prohibited if it is likely to prevent

obstruction, etc., or disturbance of the public tranquillity, etc. Now this likelihood or tendency must in my opinion be a reasonable or proximate

one. It is not enough to say that by stretching: several possibilities one after the other it is possible to establish a connection of cause and effect

between the act prohibited and disturbance of the public tranquillity. That connection must not be merely speculative or distant. The question

whether in each particular case the case falls on one side or the other is one eminently of sound judgment and no rules can be laid down for its

exercise. Where there are special facts relating to a particular locality as to which the local authority is the best judge the opinion of that authority

will not easily be disturbed; but where there are no special circumstances and the matter is one of general impression the absence of any near or

reasonable connection between the prohibited act and the supposed danger to public tranquillity will be a ground upon which this Court is bound

to act. The order of the Magistrate shows that the connection between the Gandhi caps and the Civil Disobedience Movement which disturbs

public tranquillity is only a distant and possible one and not a near and probable one. He says that ""a sudden increase in symbols of sympathy"" by

which he means caps ""with a movement which had just had a serious set-back could have no other effect than to assist the movement."" If the so-

called increase in cap-wearers was due to the alleged interference by the Police, which had temporarily diminished the number, becoming known

to be unauthorised there would be really no increase at all, but those people who had been accustomed to wear the caps before the interference

would again do so as if they had not been interfered with. Then the Magistrate refers to the general features of the Civil Disobedience Movement

throughout India as being very upsetting to the public tranquility. I think the petitioner''s criticism is just that this has little to do with the case,

because the state of affairs at a distant place like Peshawar can have very little, effect upon what is done at Guntur. Then the Magistrate says that

the ways are numerous and it is impossible to say exactly in what way it would have worked if this order had not been passed."" It was argued for

the petitioner that, if the Magistrate was unable to say what the consequences would be, ipso facto it showed that there was no need to act

because it has to be shown that a disturbance of the public tranquillity was imminent; but understanding the Magistrate to mean that unknown

dangers which it was impossible to define were looming ahead, that again leaves the matter so uncertain that it can hardly be made the occasion for

a general order like the present preventing people from wearing caps of a particular kind. Then the Magistrate refers to offences in pursuance of

the movement by which he means no doubt offences committed throughout India. This is open to the same remarks as above. Then he refers to the

demolition of a temple in the town of Guntur on 15th June. This is rather an embarrassing reference because there is nothing whatever in the case to

show that this was a part of the Civil Disobedience Movement. On the contrary, I was informed and this was not denied on the part of the Crown

that it was the act of a certain section of Muhammadans who destroyed the temple in consequence of communal ill-feeling. Reading that portion of

the order which relates to this subject as a whole I have come to the conclusion that the Magistrate was dealing with, as he himself calls,

possibilities and that no reasonable connection was established between the act prohibited and any apprehended danger.

It is of course quite legal to prohibit the wearing"" of caps or the carrying of any other symbols if they amount to participation in or

encouragement of revolutionary propaganda or any movement such as Civil Disobedience Movement calculated to paralyse the administration. But

before such an order is passed it should be shown by evidence which a reasonable mind may accept as satisfactory, that it was necessary to pass

such an order in the interests of the public peace. In my opinion that has not been done in the case. Where that is so an order like the present is

more likely by its necessarily irritating effect to adversely affect the public peace than if it had not been passed. In such circumstances it is the duty

of this Court in the interests of public peace to set matters right. The order of the District Magistrate is set aside.