Harekrishna Mahtab and Others vs King-Emperor

Kulwant Sahay, J.—The fourteen petitioners along with three others were placed upon their trial for an offence u/s 32 of Act 5 of 1861; two of them were acquitted and fifteen were convicted. Out of these fifteen convicted persons one namely, Krishna Rana, has not come up in revision to this Court. The fourteen petitioners who were convicted u/s 32 were sentenced to pay a fine of Rs. 25 each. There was an appeal against the conviction, but the learned Sessions Judge dismissed the appeal summarily.

The facts are shortly these. On a police report the District Magistrate passed an order on the 27th April 1926 directing the issue of general and special notices directing all parsons intending to organize or promote any procession or assembly in the town of Balasore to apply for a license. In compliance with this order of the District Magistrate, the Superintendent of Police issued a notification on the 27-4-1926, of following terms:

Whereas it appears from the report of Sub-Inspector of Police, Balasore, dated 26-4-26, endorsed by the Inspector of Police, Sadar, that a strained communal feeling between the Muhammadans and the Hindus living within the Municipal area has arisen and that to take a procession through the town of Balasore uncontrolled is likely to cause a breach of the peace and that whereas I am satisfied that in that circumstances alleged that there has been a tendency to start a procession or assembly without applying for a license, in hereby ordered by general or special notices that ail parsons intending to organize or promote any such procession shall apply for a license as laid down u/s 30 of Act V of 1861.

It has been found by the Magistrate that this notice was duly promulgated and published. It appears that on the 1st of June 1926, a larga procession consisting of about 3,000 persons passed through the main streets of Balasore carrying flags, singing songs and placing music. Admittedly no license was taken out for this procession. The procession, however, passed through the streets and ultimately came near the town police station. The head constable in charge inquired if any license had bean taken out and was informed by the accuse Krishna Rana that no license had been taken out. Nothing untoward seems to have happened and the procession passed off. The police, however, submitted a report to the Sub-divisional Magistrate against the accused persons and asked for their prosecution u/s 32 of the Police Act. The result was that the present petitioners and the other accused persons were placed upon their trial before a Special Magistrate. The learned Magistrate laid down the following points for consideration.

First, the question as to whether the notice u/s 30(2) of Act 5 of 1861 was issued; secondly, whether the notice was duly promulgated and, thirdly, whether the accused persons did form a procession in disregard of the notice.

He found that the notices were duly issued and promulgated. As regards the third point, the finding of the learned Magistrate was that there was a procession on the 1st June 1926, as in fact was admitted by the accused. The learned Magistrate then observes as follows:

The only question which has to be considered, therefore, is which of the accused persons took part in it.

He then considered the evidence and found that all the accused persons except the two named by him took part in the procession in disregard of the general notice issued by the Superintendent of Police u/s 30(2) of the Police Act. Upon this finding he has convicted the petitioners u/s 32 of the Act.

Now, Section 30(2) of the Police Act provides that a Dist. Supdt. of Police may:

on being satisfied that it is intended by any persons or class of persons to convene or collect an assembly in any such road, street or through fare, or to form a procession which would, in the judgment of the Magistrate of the District, or of the sub-division of a district, if uncontrolled, be likely to cause a breach of the peace require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a license.

The notice issued in the present case was in accordance with the provisions of Clause (2) of Section 30 of the Act. Now, the notice prohibited all persons intending to organize or promote any procession from doing so without applying for a license. There is no evidence and no finding in the present case that the present petitioners had anything to do with the organizing or promoting of the procession. The learned Magistrate appears to be tinder the impression that joining in the procession would amount to a disobedience of the order promulgated by the District Superintendent of Police. There he is clearly wrong. The order simply prohibited people from organizing or promoting a procession without taking out a license. The petitioners did not organize or promote the procession. In any event there is no such finding in the judgment of the Magistrate. The mere fact of joining in a procession which was promoted or organized by other persons would not amount to a disobedience of the order of the Superintendent of Police. The procedure to be adopted in cases where the order of the Supdt. of Police is disobeyed is as provided in Section 127 Or. P.C. viz., to order the procession to disperse, and when such an order is made it is the duty of the members of the procession or the assembly to disperse accordingly; and, if such an order to disperse is disobeyed, then every member of the procession or the assembly would be guilty of being member of an unlawful assembly and will be punishable under the provisions of the Indian Penal Code. Buff persons who join a procession which has bean organized or promoted without a license as required by the notification cannot be guilty of an offence u/s 32 of the Police Act.

The learned Assistant Government Advocate has referred to the passage in the judgment of the Magistrate where it is stated that the accused persons deliberately disobeyed the order issued u/s 30(2) of Act 5 of 1861 and that, therefore, they are guilty of an offence u/s 32 of the Act and argues that the amounts to a finding that the petitioners wore guilty of organizing or promoting the procession without a license.

In my opinion the learned Magistrate had no intention of coming to that finding. In fact, he laid it down in the judgment that the only question for him to consider was as to which of the persons took part in the procession and upon the finding that the present petitioners did take part in the procession he came to the conclusion that they disobeyed the order of the Superintendent of Police.

This is clearly wrong, and the conviction of the petitioners u/s 32 of the Police Act cannot be sustained.

The conviction is set aside and the fines if paid will be refunded.