Ganesh Prosad vs Emperor

Wort, J.—This is a Rule to show cause why the conviction of Ganesh Prosad for abetting an unlawful assembly and for committing certain acts during the course of that unlawful assembly should not be set aside. Ganesh Prosad was charged and convicted for abetting u/s 143 to rigorous imprisonment for five months and a fine of Rs. 200, in default rigorous imprisonment for six weeks. He has been sentenced to a further term of rigorous imprisonment for two months and a fine of Rs. 100 for abetting an offence u/s 447.

The case against the accused is this: that on 17th May a meeting was held at which Ganesh Prosad and another spoke and the resolution of the meeting was that picketing of the country liquor shop of the complainant should be undertaken ia such a manner as to prevent persons from purchasing liquor at the shop. It is stated that at the meeting Kishuna Awata and Sarjug Ram were given charge of the volunteers and that Ganesh Prosad told them that they must not allow any man to go to the liquor shop for purchasing liquor. Two of the prosecution witnesses who are police officers stated that Ganesh was a leader and that the activities of the Congress party were controlled by him and that his name appeared in the Congress notices. In the first place the common object of this unlawful assembly was to commit the offence of wrongful restraint; three separate instances are given; the first one on 21st May when Durjan Dhobi was coming out of the shop after purchasing a bottle of liquor he was surrounded by the volunteers, the bottle of liquor which he had being snatched away from him and broken. On 24th May, at about 4-30 p.m. the servant of the shop, Mewa Lal, was prevented from entering the shop by the volunteers and thus wrongfully restrained him. On 26th May a criminal trespass was committed by the volunteers blocking the western door of the liquor shop by their presence.

Mr. S. Sinha on behalf of Ganesh Prosad contends that there was no abetment but the first point that he takes is that in any event the trial was illegal inasmuch as three separate offences were tried together, offences which took place on different dates and by different persons. On the point of the offences having been committed by different persons, he relies on the evidence which shows that the volunteers were relieved from time to time and that different volunteers took different times of duty. He relies in this connexion on Section 235, Criminal P.C., which provides that for every distinct offence there shall be a separate charge which shall be tried separately. But the answer to the argument is found in the fact that all the persons convicted took part in these occurrences and that Section 235, Criminal P.C., allows acts so connected together as to form the same transaction to be tried together. The question therefore arises as to whether this is substantially the same transaction. I think the definition given by Batty, J., in the case of Emperor v. Datto Hanmant Shahapurkar [1906] 30 Bom. 49 is correct. The section under construction in that case was Section 239, Sub-clause (a), using the expression "in the course of the same transaction"; and it appears to me that the definition of the expression "transaction" in the one section will equally apply to the expression ''the same transaction" in Section 235. Daring the course of the judgment it was stated that "the same transaction" suggests not necessarily proximity in time so much as continuity of action and propose; and in my judgment for the purpose of this case that definition is the correct interpretation of the expression ''the same transaction." I think that the point raised in this connexion by Mr. S. Sinha must be overruled. But that does not conclude the matter One of the main points in the case in my judgment does not seem to have been effectively dealt with by the Courts below nor very seriously argued in this Court although Mr. Sinha raises the matter in a somewhat different form. I have already stated that one point taken was that Ganesh did not abet these offences.

It is contended in the first place that peaceful picketing is not criminal. No authority is needed for that proposition; but of course it is equally obvious that if they carry out an object which is not unlawful but by criminal means it becomes criminal. Mr. Sinha contends that Ganesh Prosad was not directly connected with the Congress, that he recognizes the Courts which the other volunteers refused to do and that the most that can be said against him is that he advised or incited people to picket this liquor shop. I have already stated the three separate offences which were committed by these volunteers and there can be no doubt that although perhaps some are trifling, criminal offences were actually committed. We have to see whether Ganesh abetted them. First of all, u/s 107, a person is said to abet if he instigates any person to do that thing. It is clear therefore that if Ganesh had at these meetings actually instigated the offences which were in fact committed, he could be said to have abetted. But what is argued is this that all that Ganesh instigated was peaceful picketing. Reference in this connexion was made to Section 111, I.P.C., which provides that when an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it; and it is argued that no help can be got from this section because what Ganesh Prosad instigated was an act entirely different from that which was committed and that the act instigated was a perfectly lawful one. In other words, when Section 111 speaks of an act which is abetted, it means the instigation of a criminal act and that it does not necessarily follow as a natural and probable consequence of the instigation of a lawful action that offence will be committed. I am inclined to this view, and when S. II, speaks to an act it is intended as meaning a criminal act. At any rate it would appear that this section does no more than declare the law according to the common law of England and there is no doubt that under the common law of England the abetment of an act would refer to the abetment of a criminal act.

But the question in this case is what in fact did Ganesh Prosad instigate? One of the witnesses appears to have stated that Ganesh Prosad''s statement at the meeting was that picketing should be conducted in such a way that no man can go to the shop and purchase liquor. I do not think that will be sufficient upon which to hold that a criminal offence was instigated as under peaceful picketing that object might well be achieved. But the state of Ganesh mind in this respect can be judged only by the surrounding circumstances and in this case it can be judged by what subsequently took place. After the last offence on 26th May the complainant appears to have come to Ganesh and others and complained what had taken place and Ganesh and another is supposed to have told him that picketing would go on in the same manner unless the complainant surrendered his license. The manner therefore of Ganesh''s statement at the meeting prior to the events which happened may be judged by the subsequent confirmation of the actions of the volunteers. To say that picketing should go on in the same manner is tantamount to say in my judgment that we intended it to be carried out in that way and that it shall continue to be carried out in that way. I should therefore have no hesitation in saying that Ganesh who was obviously behind the scene in this case did abet the volunteers in carrying out what proved to be an unlawful assembly. I do not lose sight of the fact that picketing may be lawful; but as I have already stated the moment they overstep the line between that which is lawful and that which is unlawful their lawful action in this case becomes a criminal offence.

There is one matter which has not been raised by the defence but which appears on the face of the record. The learned Magistrate in convicting the accused stated that he was satisfied that they were members of an unlawful assembly the common object of which was to commit wrongful restraint, that they actually committed wrongful restraint on the complainant and his servant and that they committed criminal trespass on the land of the complainant. Although no charge was framed in this case it appears that three separate acts of the 21st, 24th and 26th May formed the common object of this unlawful assembly. The conviction and sentence therefore of abetting these particular acts cannot stand if the conviction for abetting the unlawful assembly is sustained; and therefore the convictions under Sections 341 and 447 should be set aside and the conviction for abetting an off once u/s 143 in my judgment should stand.

The conviction for abetting an unlawful assembly is affirmed, but the sentence will be reduced to four months'' rigorous imprisonment and a fine of Rs. 200. The conviction and sentence for abetting an offence u/s 447 is set aside.

The separate sentences for offences other than the offence of being a member of an unlawful assembly on the other accused persons who have not appealed are also set aside.

Scroope, J.

The petitioner Ganesh Prosad was convicted by the Second Class Magistrate of Siwan under Sections 143/109, 341/109 and 447/109 and was sentenced under the first sections to rigorous imprisonment for five months and a fine of Rs. 200, under Sections 447/109 he was sentenced to rigorous imprisonment for two months and a fine of Rs. 100; no sentence was passed for the conviction under Sections 341/109. His appeal was dismissed by the District Magistrate.

The prosecution case was that Congress volunteers picketed the liquor shop of one Jagdish Prasad in Siwan town continually from 18th May to 1st June and that during this time they committed certain acts of violence. On 21st May one Durjan Dhobi purchased a bottle of liquor for Rs. 1-10-0; he was coming back from the liquor shop with the bottle hidden when certain volunteers snatched the bottle from him and in the scuffle that ensued the bottle was broken. On 24th May the vendor''s servant, one Mewa Lal, was obstructed by the volunteers from going to the shop the volunteers declaring that they would not allow the servants to go out and come in, and on 26th May the volunteers are alleged to have blocked the approach of the shop altogether so that no customer could come near it. These were the three specific instances of violence and the Courts below have found them all proved and in addition to the petitioner a number of so called volunteers have been convicted; they did not appeal nor have they filed any revisional application.

The finding of the Courts below was that Ganesh Prosad was the leader of the picketing. We are concerned alone with Ganesh Prosad and the prosecution case against him was not that he was actually present and participated in these acts of violence but that he abetted them in that the picketing was carried on under his instigation and guidance. As regards the activities of the petitioner it is established that he was the Congress leader at Siwan and that all the activities of the local volunteers were controlled by him. There is further evidence which has not been disputed that on 17th May at a meeting held in Siwan picketing of this liquor shop was decided on and that Ganesh Prosad the petitioner directed the volunteers to picket it; it is also in evidence that he signed notices describing himself as the Secretary of the local Congress Committee at Siwan.

Mr. Sinha however for the petitioner contends that the evidence at the most establishes that he was a temperance advocate and that he was completely within his rights in advocating the boycott of the liquor shop and that it is no offence under the sections under which the petitioner has been convicted to advocate peaceful picketing. Now whether the petitioner advocated peaceful picketing or picketing involving acts of violence is a question of fact and in my opinion there can be no doubt that it was a picketing of the latter kind that the petitioner instigated. When the vendor, on 26th May, that is the date on which the volunteers were blocking the door of his shop, remonstrated with the volunteers they replied that they would not stir without the order of their leader Ganesh Prosad, the petitioner, and when the vendor complained to him telling him of the violence that was used, he replied that unless he surrendered the shop picketing would not be stopped and the volunteers would, not be removed from the place where they were. As a matter of fact this contention about peaceful picketing was never raised in the Courts below and it was never even suggested there that the petitioner was an advocate of peaceful methods only. The case there was that that the petitioner had nothing to do with the Congress Party and that he had never given orders to the volunteers at Siwan, vide the evidence of his own witness Praduman Lal,

so far as I know the accused Ganesh Prosad was no office bearer in the Congress Committee at Siwan; I never saw him giving orders to the Congress volunteers.

Had the question been raised in the lower Court there would probably have been more evidence on this aspect of the case; but the petitioner''s attitude when remonstrated with by this unfortunate vendor is a clinching circumstance against the contention raised in his favour. We must also bear in mind the circumstances and that this picketing involved interference in a crowded bazaar like Siwan with ignorant and illiterate persons, in fact the worst class of the population namely those who resort to liquor shops.

Mr. Sinha contended that though admittedly the picketing went on for a number of days, he fact that only three offences are alleged proves it was generally peaceful in character; here again we might have had more evidence had this defence been raised, but the fact that only three offences are here alleged is not an admission that only three were committed. The prosecution may have wanted to avoid any difficulties arising on the scope of joinder of charges, indeed even this trial has been challenged on this score. However there is no use surmising. Assuming the assembly was lawful for the most part on the occasions in question it became an unlawful assembly. For no other conclusion is possible on the evidence than that the petitioner instigated the volunteers to stop the sale of liquor at the shop by force knowing it likely that by the use of force he would cause fear or annoyance or both to the complainant and other persons; that both fear and annoyance were caused to the complainant there cannot be the slightest doubt, having regard to the three incidents which have been proved; the complainant further states that the volunteers made such a noise outside his house that he could not sleep properly at night; clearly it must be found that the petitioner instigated the volunteers to stop the sale of liquor by use of criminal force; in other words he instigated them to abet an offence u/s 143, I.P.C., and he has been rightly convicted under that section. Having regard to the terms of Section 111 he must be rightly held responsible for the acts of the volunteers which fell under the sections referred to above. Mr. Sinha argued that Section 111 only referred to acts criminal in themselves. Be that as it may, that argument is no help to the petitioner as I have found that the original act he abetted was the commission of an offence punishable u/s 143, I.P.C. This contention must therefore fail.

As regards the second contention that trial under different charges was illegal, I see no force in it. Picketing for about a fortnight was one continuous act with a clear continuity and community of purpose amongst the participants and represented therefore one transaction and Sections 235 and 239(b) and (d) cover the trial. The petitioner Ganesh Prosad has therefore been rightly convicted under Sections 143/109, and this conviction must stand. As to the reduction in sentence I agree with my learned brother that the sentence may be reduced to one of four months and a fine of Rs. 200; in default of payment of fine he will suffer rigorous imprisonment for six weeks more. As regards the other two convictions under Sections 447/109 for which the petitioner has received a sentence of two months rigorous imprisonment and a fine of Rs. 100 and under Sections 341/109 for which no separate sentence has been passed, it is the abetment of specific acts of violence which make the petitioner guilty under Sections 143/109, that is to say, which have made the assembly an unlawful one, and to impose a separate and consecutive sentence under Sections 417/109 amounts to punishing him twice for what, is really the same offence. I agree with my learned brother that the convictions under Sections 447/109 and Sections 311/109 and the sentence under Sections 447/109 should be set aside and the convicted persons who have not applied to this Court will also get the benefit of this view of the legal position.