Basudeo Narain vs Emperor

James, J.—The petitioner has been convicted of an offence punishable u/s 4, Ordinance 5 of 1932, on a finding that that he has been molesting certain shopkeepers at Darbhanga for the purpose of preventing them from dealing in foreign cloth. It appears that on 26th March 1932 Nabu Lal Singh, a constable who had been deputed to perform special duty in plain clothes, reported that the accused with two other persons were engaged in molestation of dealers in foreign cloth, and so had committed an offence punishable under Ordinance 5, and that he had also committed an offence under the Criminal Law Amendment Act. The first information report was attached to a charge-sheet which was forwarded to the Magistrate recommending that these persons should be prosecuted u/s 17(1), Criminal Law Amendment Act. The petitioner was tried in due course and was convicted of offences punishable under that Act and also under the Ordinance; but on appeal the conviction under the Criminal Law Amendment Act was set aside, while that under the Ordinance was affirmed.

An application to this Court for revision of the appellate order of the Sessions Judge has been admitted for hearing on two grounds; first, that the proceeding against the accused had not been regularly initiated; and, secondly, that the findings of the Courts did not disclose the ingredients of the offence defined in Section 3 of the Ordinance.

Under Section 5 of the Ordinance a Magistrate may only take cognizance of an offence punishable u/s 4 on a report in writing of facts which constitute such offence made by a Police officer. Mr. Baldeo Sahay argues that the charge-sheet submitted in the present case is not a report in writing of the nature contemplated by Section 5 of the Ordinance, because the Sub- Inspector did not recommend prosecution under this Ordinance.

In submitting the charge-sheet the Sub-Inspector referred for an account of the facts to the statement of the constable Nabu Lal Singh, which was annexed to the charge-sheet, recommending that cognizance should be taken of an offence u/s 17, Criminal Law Amendment Act. But the annexed information alleged inter alia that the present petitioner had persuaded a Musalman to return a dhoti which he had purchased from a shop keeper named Rajbansi, which was followed by the picketing of Rajbansi''s shop; and that he, accompanied by two volunteers, went from shop to shop asking the shop-keepers not to deal in foreign cloth, and on this report of facts constituting an offence under the Ordinance proceedings were instituted.

The report, as I have said, was embodied in the charge-sheet; and a report made in this fashion confers on the Magistrate jurisdiction to take cognizance under Ordinance 5 of 1932. A Magistrate may take cognizance only on a report of the facts by a Police officer; but the opinion of the Police officer as to whether such facts justify the taking of cognizance under Ordinance 5 is irrelevant. It must always be for the Magistrate to decide in what particular manner cognizance shall be taken. There was consequently nothing irregular in the initiation of these proceedings.

The second ground on which this application was admitted was the contention of the petitioner that the finding of the Courts below did not disclose the ingredients of an offence punishable u/s 4 of the Ordinance. (The judgment after considering facts, proceeded.) Regarding the incident of the 25th of March the learned Sessions Judge affirms the finding of the trial Court which is to the effect that the petitioner went round from shop to shop asking the cloth dealers to stop dealing in foreign cloth. Mr. Baldeo Sahay draws attention to the decision in Emperor v. Sakinabai Badruddin Lukmani AIR 1931 Bom 70 wherein it was held that merely to persuade a person not to deal in liquor or purchase it was not in itself an offence under the Ordinance; and he suggests that merely to ask these dealers not to deal in foreign cloth would not have been by itself an offence.

The question of course is whether if petitioner went round in this way accompanied by two volunteers was actually intimidating these dealers in order to prevent them from doing what they had a right to do.

Neither Court has in so many words discussed this question of whether this going round with two volunteers in this manner amounted to an offence of the nature described in Section 3 of the Ordinance, but the learned Magistrate points out in summing up the case as a whole that the petitioner placed pickets to prevent customers from buying foreign cloth in pursuance of a policy to boycott British cloth.

The learned Sessions Judge points out that it has been satisfactorily established that the petitioner went round from shop to shop asking the foreign cloth dealer not to deal in such cloth, and on refusal he posted volunteers to picket those shops, whereby he became liable to punishment under the Ordinance for abetment of picketing from which the learned Sessions Judge infers that he was guilty of an offence punishable under the Ordinance by his action on 25th March, judging from his general conduct whether his asking the foreign cloth dealers to abstain from dealing in foreign cloth amounted to molestation. Mr. Baldeo Sahay points put that on 25th March the petitioner did not actually post volunteers at the shops of those dealers who had refused to obey his order; but as I read the judgments of the Courts below, this discussion of the effect of the placing of volunteers to picket a particular shop is not a discussion of any separate offence committed on the 25th, but is a part of the discussion of the general question of whether the conduct of the petitioner on the 25th amounted to molestation as defined by the Ordinance.

Both Courts find that it did amount to molestation; and it is clear that this going round with two volunteers from shop to shop did amount to intimidation, and that the offence described in Section 3 was committed by the petitioner.

I cannot interfere with the order of the appellate Court in this case and the conviction must be affirmed. The petitioner must surrender to his bail and serve out the unexpired portion of the sentence.