In Re: Kanniya Rao

Horwill, J.—The case against the petitioner was that he assaulted the complainant because the complainant had informed against him. The

accused was charged u/s 75, City Police Act, and was found guilty by a Bench, of Presidency Magistrates and sentenced to a month''s rigorous

imprisonment and a fine of Rs. 25 with one week''s imprisonment in default. He was also bound over u/s 106, Criminal P.C. The finding of fact that

the accused assaulted P.W. 1 cannot be canvassed here in revision. It is however contended that a person cannot be convicted u/s 75, City Police

Act, unless he has been found to be both drunk and disorderly and that as there is no evidence in this case and no finding, that the accused was

drunk his conviction was illegal. Section 75, however, does not say that only persons who are drunk and are found guilty of riotous or disorderly

or indecent behavior can be convicted. If that had been the meaning of Section 75, it would have been worded ""whoever being found drunk and

incapable of taking care of himself is guilty of my riotous, disorderly or indecent behavior�."" It therefore appears that being drunk and incapable

of taking care of oneself is an offence in itself and that being found guilty of riotous or disorderly or indecent behavior in any public place or in any

place of public amusement,� is another and distinct offence. The petitioner was therefore on the facts accepted guilty u/s 75, City Police Act.

There are passages in this short judgment in which exception can be taken. The learned Magistrates did so word their order as give cause for an

argument that they considered that the onus of proving himself innocent lay upon the accused; for they say ""the accused has not put in any defence

witness and so we believe the prosecution."" Beading the judgment as a whole, however, I do not think that the learned Presidency Magistrates lost

sight of the fact that the burden is always upon the prosecution to prove their case. The learned Magistrates have also referred to a previous

conviction of the accused for keeping a bucket shop. There seems to be no Evidence of that; but I do not consider that this is very material; for the

previous trial of the petitioner was a relevant fact, in that it explained why he entertained animosity against the complainant and establishes the

motives for the offence. I therefore find no ground for interfering with the conviction of the petitioner. The sentence is unduly severe for the offence

of which the petitioner has been found guilty. He committed a petty assault, and yet has not only been fined Rs. 25 but has also been sentenced to

one month''s rigorous imprisonment. In addition to that, he has been bound over for a period of six months. It may be true that it is necessary to

protect informers against the wrath and vengeance of those against whom they have informed; and it may therefore have been necessary either to

have given the petitioner a small term of imprisonment or to have bound him over. I do not think that both were necessary; and it seems as if the

learned Magistrates in awarding this sentence have been influenced by the previous conviction of the petitioner for an entirely different kind of

offence. The order binding the accused over .will stand; but the sentence will be reduced to the period of imprisonment already undergone, which I

understand is about a week. The fine is cancelled. One week will be allowed for furnishing security.