C.H. Balamohan and Others vs State

S.A. Kader, J.—The revision is directed against the judgment of the Additional Assistant Sessions Judge, Pondicherry finding the revision Petitioners-accused 1 to 10 guilty u/s 143 of the Indian Panel Code, convicting them thereunder and sentencing them to suffer simple imprisonment for one month and to pay a fine of Rs. 50 each in default to suffer simple imprisonment for ten days, finding the fifth revision Petitioner-accused guilty u/s 333, Indian Panel Code convicting him thereunder and sentencing him to suffer simple imprisonment for one month and to pay a fine of Rs. 100 in default to suffer simple imprisonment for ten days and finding the revision Petitioners-accused 1 to 4 and 6 to 10 guilty u/s 333 read with Section 149. Indian Panel Code, convicting them thereunder and sentencing them to suffer simple imprisonment for one month each and to pay a fine Rs. 100 each in default to undergo simple imprisonment for ten days each, the substantive sentences to run concurrently.

The brief facts of the case are these: In the Union Territory of Pondicherry the opposition parties like the Communist Party of India, Communist Party (Marxist), Janatha and others proposed to observe a general industrial strike and bandh on 19th January, 1982. The Congress (I) which was a partner in the then coalition Government and its affiliated unions decided to defeat the strike and the bandh. Pamphlets and counter-pamphlets were issued by the respective parties.

On the report sent by the police, the District Magistrate, Pondicherry promulgated an order u/s 144, Code of Criminal Procedure, under Ex. P57 prohibiting the assembly of five or more persons in public streets, thoroughfares and other public places, carrying of weapons, sticks, banners, play cards, etc., and acting in any manner detrimental to public peace and tranquility in the whole of the Union of Pondicherry with effect from 18th January, 1982 until further orders.

From 18th January, 1982, P.W. 20, the Sub-Inspector of Police attached to the control room with a party of policemen and home-guards was on band bust duty near the Chief secretary''s Office, the Pay and Accounts Office and the Sub-Collector''s Office, Pondicherry. At about 9:15 A.M. on 19th January, 1982, about 15 to 20 persons including the revision Petitioners-accused, who are all Government servants, assembled in front of the main gate of the Pay and Accounts Office, shouted slogans and prevented the other employees of the Government entering the office. The warnings of P.W. 20 against the assembly and raising of slogans were of no avail and he therefore, went to the office of the Chief Secretary and passed a wireless message to the police control room. P.W. 24, the Inspector of Police at the control room received the message and passed it on to P.W. 22, the Superintendent of Police (North), who was then at Othiyansalai, about 1 km. from the Pay and Accounts Office. P.W. 22 immediately instructed P.W. 1, the Inspector of Police to proceed to the spot with his party and deal with the situation. P.W. 1 and his party of 7 police constables went in a police van to the Pay and Accounts Office while P.W. 22 accompanied by the police constables, P.Ws. 16 and 18 followed them in a jeep. In front of the Pay and Accounts Office, about 15 to 20 persons including the revision Petitioners-accused were standing in a group and shouting slogans such at . They were also preventing the employees of the Pay and Accounts Office from entering into the Office. They were also asking the employees working inside the office to come and join them. P.W. 22, the Superintendent of Police, warned the crowd to disperse in view of the order u/s 144, Code of Criminal Procedure, but, as the crowd did not listen, the declared the assembly as unlawful and directed P.W. 1, the Inspector of Police to arrest them and remove them from that place. When P.W. 1 and his party and P.Ws. 16 and 18, who accompanied the Superintendent of Police, P.W. 22, tried to arrest them, they resisted and there was a scuffle. The Police used minimum force and arrested the revision Petitioners. In the course of the arrest of the accused, P.W. 16, P.C. Angappan was pushed against the police van by the fifth accused, Asokan, as a result of which P.W. 16 suffered an injury on the left hand P.Ws. 2 and 3 are witnesses to this occurrence. The arrested persons were taken to the police control room and then to the Grand Bazaar Police Station where Ex. P1 complaint was given by P.W. 1 before P.W. 25, the Sub-Inspector of Police, Grand Bazaar Police Station, who registered it as Crime No. 25 of 1982 under Sections 143, 188 read with Section 149 Indian Panel Code, and took up investigation.

Several of the accused were injured and they were sent by P.W. 25 to the Jipmer Hospital, Pondicherry. On the next day, they were sent for remand. P.W. 16, who claims to have sustained an injury on his left hand as a result of the fifth accused pushing him against the police van, went to the Government General Hospital, Pondicherry for treatment on his own accord on 19th January. 1982 and was treated there by P.W. 23, Dr. S. Chandrasekaran. Ex. P71 is the entry in the register. On 21st January, 1982 there was swelling and pain in his finger and was, therefore, sent by the investigating officer to the Government Hospital, Pondicherry for treatment. P.W. 21, the Assistant Surgeon treated P.W. 16. He suspected a fracture and sent him to a radiologist and after examining the skiagram, be found that there was a fracture in the second metacarpal bone of the left hand and issued Ex. P67 certificate in which he opined that the injury was grievous.

After completion of investigation, the charge-sheet was filed for offences under Sections 143 and 188-Indian Panel Code, against all the accused-revision Petitioners, u/s 333, Indian Panel Code, against the fifth accused, u/s 333 read with Section 149, Indian Panel Code, against the revision Petitioners 1 to 4 and 6 to 10.

The accused, when examined u/s 313, Code of Criminal Procedure, denied the evidence appearing against them in all material particulars. They denied that they assembled in front of the Pay and Accounts Office or they were arrested there on that day. According to them they were picked up from different places, beaten indiscriminately and taken to the police station.

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The learned Additional Assistant Sessions Judge, Pondicherry found that as there was no complaint by the public servant, who promulgated the order u/s 144 Code of Criminal Procedure, the charge u/s 188, Indian Panel Code, of disobedience of the order was not sustainable and hence he did not give any finding thereon. He however found the accused 1 to 10 guilty u/s 143, Indian Panel Code, the fifth accused u/s 333. Indian Panel Code, and the accused 1 to 4 and 6 to 10 guilty u/s 333 read with Section 149, Indian Panel Code, and convicted and sentenced them as stated above. Hence this revision

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[The discussion of facts and evidence is omitted-Ed.]

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The first question which arises for consideration is whether the accused assembled in front of the Pay and Accounts Office on the morning of 19th January, 1982 and whether they were arrested at the spot at 9:30 A.M. as alleged by the prosecution. This is important, because, according to the accused they were picked up from different places, beaten black and blue and taken to the control room and then to the police station.

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The mere fact that these witnesses point out the accused in Court as those present at the time of the occurrence is of no value whatsoever, for, nothing is easier than to refer to the persons in the dark as the persons who committed the offence. The learned Additional Assistant Sessions Judge has erred in holding that the witnesses have identified the accused in Court. On a consideration of all these facts, I hold that there is reasonable doubt about the presence of the accused in front of the Pay and Accounts Office on the morning of 19th January, 1982 and their arrest at 9:30 A.M. as alleged by the prosecution.

Assuming that the accused and others were present in front of the office of the Pay and Accounts Office and they were arrested there at 9:30 A.M., after they refused to disperse, the point for consideration is what was the common object of this assembly, which is designated as unlawful. The charge is that the accused joined together and formed themselves into an unlawful assembly, the common object of which is to disobey the prohibitory orders, dated 17th January, 1982 and to voluntarily cause grievous hurt to deter a public servant from discharging his duty. When there was a prohibitory order issued by the District Magistrate and the common object of this assembly was certainly to disobey, can it be said that the object was to cause grievous hurt to deter a public servant from discharging his duty? The case of the prosecution is that white the policemen were arresting the accused, the fifth accused, pushed P.W. 16 against the police van and thereby caused a grievous hurt on his finger and toe common object of the assembly was therefore, to cause grievous hurt to deter a public servant from discharging his duty. This incident, assuming it to be true, has occurred in the course of arresting the fifth accused and no member of the assembly could have ever contemplated the happening of such an event. There is, therefore no doubt that the common object of the assembly was not to cause grievous hurt to deter a public servant from discharging his duty. The common object of this assembly was and could only have been to disobey the prohibitory order.

It now remains to be seen whether the accused 1 to 10 could be found guilty, u/s 143, Indian Panel Code, for being a member of an unlawful assembly, the common object of which was to disobey the prohibitory order passed by the District Magistrate, when they could not be prosecuted u/s 188, Indian Panel Code for the offence of disobeying the prohibitory order in the absence of a complaint by the District Magistrate, who promulgated that order in view of Section 195(1)(a)(i), Code of Criminal Procedure This assembly of accused 1 to 10 and others became unlawful as the common object of the assembly was to violate the prohibitory order passed by the District Magistrate. But, the accused could not be prosecuted for this violation for want of a complaint by the District Magistrate. When the accused are not liable to be prosecuted for the primary offence, 1 fail to see bow could they be proceeded against for the resultant offence u/s 143, Indian Panel Code, of being a member of that unlawful assembly The point is covered by a direct decision of this Court in In Re: Chinnayya Goundan and Others, (Govinda Menon, J.). The facts of that case are identical with the facts of the case before me. There in that case. on 13th and 14th of January, 1946, the Sub-Magistrate of Athur passed orders u/s 144, Code of Criminal Procedure, restraining the Petitioners, who belonged to one of the factions in the Keeripatti village in Athur Taluk from conducting the ''Bull Play'' in connection with the Pongal festival in that village. In defiance of this prohibitory order the Petitioners formed themselves into an unlawful assembly and in spite of the warning given by the police officer on the spot, conducted the ''Bull Play'' on the occasion. For this offence, they were charge-sheeted for being members of an unlawful assembly with the object of committing the offence, viz., the defiance of the order u/s 144, Code of Criminal Procedure, which itself is an offence u/s 188, Penal Code, tried and convicted and sentenced to the fines. On revision it was contended that in the absence of a complaint by the public servant, who promulgated the order u/s 144, Code of Criminal Procedure, no court could take cognizance of the offence u/s 143, because the real offence was one u/s 188, of the Penal Code for which the necessary prerequisite is a complaint u/s 195(1)(a) of the Code of Criminal Procedure Govinda Menon, J., observed:

It is more in consonance with natural Justice and equity that where on the same facts a general offence which does not require a complaint by a Court or a public servant, is committed along with a more aggravated particularised form of offence, it is not open to the prosecution to circumvent the provisions of Section 195, Code of Criminal Procedure, by resorting to proceed with the general minor offence without attempting to move the Court or officer concerned for taking action u/s 195, Code of Criminal Procedure After referring to various authorities on the point, the learned Judge proceeded to observe:

The principle deducible from these cases is that when a complaint is made to a Court, the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts disclose. Considering the facts as a whole if they disclose an offence for which a special complaint is necessary under the provisions of Section 195, Code of Criminal Procedure, a Court cannot take cognizance of the case at all unless that special complaint has been filed As I have already mentioned that the real offence committed in this case is one u/s 188 of the Penal Code, the Petitioners cannot be tried for a minor general offence like the one u/s 143 of the Penal Code without a proper complaint u/s 195, Code of Criminal Procedure Such being the ease, the conviction and sentences of the Petitioners are without jurisdiction and they are acquitted.

I respectfully agree with the view expressed by the learned Judge and hold that the real offence committed in this case is one u/s 188, Code of Criminal Procedure, and as there is no complaint by the District Magistrate who promulgated the order u/s 144, Code of Criminal Procedure, the Petitioners-accused cannot be proceeded against for the offence u/s 143, Indian Panel Code, Their conviction and sentences u/s 143, Indian Panel Code, cannot, therefore, stand.

Now to the conviction of the fifth accused u/s 333, Indian Panel Code, the case of the prosecution is that when P.W. 16, P.C, Angappan arrested the fifth accused, the fifth accused pushed him against the door of the police van as a result of which P.W. 16 suffered an injury on the corium of his left hand. P.W. 18, P.C. Nagarajan has also stated that the fifth accused pushed P.W. 16''s hand against the body of the van. But, it has been elicited from P.W. 16 that the van stood at a distance of 75 metres from the place where the fifth accused was arrested. That makes the testimony of P.Ws. 16 and 18 that the fifth accused while he was arrested, pushed away P.W. 16 quite absurd. In order to obviate this absurdity, P.Ws. 16 and 18 have come forward with the case that P.W. 16 arrested the fifth accused first in front of the Pay and Accounts Office and for a second time near the van. This is another absurdity. Again, neither P.W. 16 nor P.W. 18 has stated before the police that the fifth accused was arrested twice by P.W. 16. On the other hand, the testimony of P.W. 16 is that the fifth accused did not try to escape from the time he caught him until he put him in the van. There is, therefore, no question of arresting the fifth accused for a second time. It is also significant to note that P.W. 16 has not made any complaint about this on the 19th or 20th January, 1982. It is only on the 21st he has complained of pain and was sent to the doctor for examination by the Inspector of Police. P.W. 16 would, however, say that he informed P.W. 18 about the injury caused to him. But, P.W. 18 has also not stated before the police that P.W. 16 told him that he was injured, when the fifth accused pushed him away. On 19th January, 1982 itself, P.W. 16 claims to have gone to the Government Hospital at Pondicherry for treatment on his own accord and P.W. 23 is said to have treated him on that day. Ex. P71 is the relevant entry in the casualty register. But, in Ex. P71 entry, though the name Angappan is found, his designation is not found and there is also a clear difference in age. While P.W. 16 is only 28 years old, the entries in Ex. P71 shows him as 35. What is more, P.W. 23 has not identified in Court P.W. 16 as the person, who was treated by him on 19th January, 1982. It is therefore doubtful whether P.W. 23 treated P.W. 16 on 19th January, 1982. Ex. P67 is the certificate issued by P.W. 21 for treating P.W. 16 on 21st January, 1982. Even before P.W. 21, P.W. 16 has not stated the time and place when he sustained the injury and as to how he sustained the injury. According to P.W. 21, the injury he found on the person of P.W.16 could have been caused on the day of his examination or on the previous day, i.e., on 21st or 20th of January, 1982. But. according to the prosecution, this injury was caused on 19th January, 1982. In the light of these infirmities, it is not possible to hold that P.W. 16 was injured as a result of the fifth accused pushing him against the police van. The prosecution has miserably failed to bring home the guilt to the fifth accused u/s 333, Indian Panel Code.

As the principal charge against the fifth accused u/s 333, Indian Panel Code, fails, the constructive charge against the other accused u/s 333 read with Section 149, Indian Panel Code, must also fail. Further, I have already held that the common object of this assembly was not to cause hurt to any public servant to deter him from discharging his duty. On that ground also, the constructive charge cannot stand.

In the result, the revision is allowed, the conviction and sentences imposed upon the revision Petitioners are set aside and they are acquitted.