In Re: Madan Kishore and Another

Meredith, J.—This is a reference u/s 438 Criminal P.C., by the learned Additional Sessions Judge of Gaya recommending that the conviction and sentence passed against two persons, u/s 188, I.P.C. should be set aside. These two persons, Madan Kishore and Badri Lal, were convicted u/s 188, I.P.C., and sentenced to pay fines of Rs. 25 each or in default to undergo simple imprisonment for one month each in the following circumstances: On 10th July 1939 there was a stabbing case in the town of Nawadah as a result of which there was considerable tension between the Hindus and the Mahomedans of the town. The Sub-Divisional Magistrate of Nawadah thereupon promulgated an order u/s 144, Criminal P.C., forbidding the assembly of five or more persons in any public place, street, or thoroughfare within the limits of the Nawadah Union Commit-tee and forbidding the carrying by any person within those limits of any lathi or . weapon of offence. This order was promulgated the same day at about 7-45 P.M. by beat of drum and was to remain in force for one week.

On the following morning, 11th July, the dead body of the person who had been stabbed was carried in procession under police protection for the purpose of cremation. Some distance behind this procession these two persons Madan Kishore and Badri Lal were seen going with three other persons all five being armed with lathis. The police challenged them and attempted to arrest them. The other three slipped away, and the two persons, already mentioned, were arrested. They were subsequently charged, u/s 188, tried and convicted as already described, upon a complaint in writing made by the Sub-Divisional Magistrate. At the trial the accused pleaded, first that they were not aware of the order because they had been away at Rajgir when it was promulgated; secondly they denied that they had carried lathis and thirdly, they challenged the validity of the order. Four points have been mentioned in the letter of reference, in regard to which the learned Judge considers that the Magistrate was wrong; and these four points have been taken by Mr. Sarjoo Prasad who appears in support of the reference. The first is that the order u/s 144 was not properly published having regard to the provisions of Section 134, Sub-section (2), Criminal P.C., which as appears from para. 2 of Section 144 applies to orders under that Section as well as to orders u/s 133. Section 134(2) provides that:

If such order cannot be so served (the reference is to personal service), it shall be notified by proclamation published in such manner as the Local Government may by rule direct and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

In the present case it does not appear that a copy or copies of the order were affixed in public places for the information of the public. It is argued for the Crown that the reference to such sticking up of copies in Section 134(2) is meant to apply only to cases where the order is directed against individuals and not against the public generally. This argument is based on the fact that the last words of the clause are "to such person" which it is argued can relate only to cases where the information is to be conveyed to a particular person as opposed to the public frequenting a particular place. There may be some doubt upon this point, and I do not consider it is necessary to decide the question because Mr. Sarjoo Prasad concedes that even if there has been this irregularity in the method of promulgation of the order, that in itself would not make it ultra vires, so as to prevent the conviction of any person who, being proved to have had knowledge of the order, nevertheless disobeyed it. Mr. Sarjoo Prasad has taken this point, he says, chiefly as bearing upon his second, point--the question of knowledge; and indeed it is clear that whether necessary or not, affixing copies in conspicuous places would be a desirable means of conveying an order of this nature to the notice of the public who may not all be present in the place when the order is promulgated by beat of drum.

The second point then is, that it is not proved that these two persons actually had any knowledge of the promulgation of the order. Several rulings have been cited in which it has been laid down that it is not enough in such cases to prove that the order has been duly promulgated. There must also be positive evidence that the accused had knowledge of the order which he is charged with disobeying. These cases are Emperor v. Abdullah (1921) 68 IC 865 , Ram Das Singh and Others Vs. Emperor, and (Shiekh) Abdul and Others Vs. King-Emperor, . There can be no doubt about the correctness of this proposition and it is not challenged. But it is urged that in the present case there is a finding of knowledge and it is based on definite materials. The accused persons led some evidence to show that they were in Rajgir, but the Magistrate did not accept it and has criticized both the witnesses examined on the point. It is clear that he intended to find, even if he did not express himself very clearly, that at the time of promulgation the accused must have been in the town, and he comments on the evidence of the Sub-Inspector, Nawadah, as to how he promulgated the order. This witness stated that he himself promulgated it by beat of drum in all the streets and lanes of the town.

The Magistrate remarks that the police in promulgating the notice had moved about the streets of the town in a car which had to move slowly and to halt at places. It is pointed out that evidence of knowledge can rarely be direct evidence; in most cases knowledge can only be proved by circumstantial evidence. The question of knowledge must generally be a matter of inference. As I have said, the Magistrate has not expressed himself very clearly; but I think there can be no doubt that he did mean to make this inference of knowledge from the circumstances, and the circumstances were such that he was entitled to make the inference. The second point, like the first, therefore fails. The third point is based on the wording of Section 188, I.P.C., which lays down that:

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order, with certain property in his possession or under his management disobeys such direction shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment, etc, etc. and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment etc., etc.

As the Section is worded, it is pointed out there must clearly be something more than mere disobedience of the order. It must also be shown that obstruction, annoyance or injury, danger to human life etc., etc. have been caused or might have been caused, and, it is said, that there is no such finding in the present case. Here again, however, there is a finding, though it might have been more precise. The Magistrate observed that the disobedience on the part of the accused was certainly risky. By this, in my view, he clearly meant risky not to the accused themselves but to the public peace, and the circumstances were such as to justify this finding. There was a clear state of communal tension. One man had been stabbed to death, a curfew order had been considered necessary, and it had been found necessary to forbid the carrying of lathis. Many instances come to mind where communal riots have arisen from very small initial causes.

In circumstances like these, it can hardly be argued that when five persons appear behind a procession of the kind described, armed with lathis, each one of them was not besides disobeying the order also a potential menace to peace and a danger to the public. In these circumstances the third point in my view also fails. The last contention is based on the wording of Section 144, Sub-section (3), Criminal P.O., which runs as follows:

An order under this Section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

Here we are dealing with an order to the public generally; and it is argued that" "within the limits of the Nawadah Union Committee" does not sufficiently describe a particular place within the meaning of Section 144(3). In support of this proposition two Bombay rulings have been cited: Mdtilal Gangadhar v. Emperor AIR (1931) Bom 513, where it was laid down that an order prohibiting the public generally and certain persons named therein from taking part in a procession within the whole of certain municipal limits and all public places within such limits, does not conform to the requirements of Section 144(3) and is beyond the powers of a Magistrate; and secondly, D.V. Belvi v. Emperor AIR (1931) Bom 325, where a similar view was taken. To adopt this view would, I consider, unduly narrow and restrict the operation of Section 144 in a way not contemplated by the Legislature when framing the Section.

I see no reason why the limits of the Union Committee, if clearly and specifically defined, should not be considered as describing a particular place. The view adopted in those two Bombay rulings was not followed in a later Bombay case, Sorab Shavaksha v. Emperor AIR (1935) Bom 33, where it was held that an order directed to the public when frequenting public or private streets in a particular city is sufficiently definite as to place to comply with the requirements of Section 144. A Lahore case, Abdul Karim v. Emperor AIR (1937) Lah 80, goes very much further. There it was held that the whole district of Lahore might be considered "a particular place" within the meaning of Section 144(3), Criminal P.C.

Their Lordships further observed that the argument advanced was in their opinion, based on a mistaken interpretation of Sub-section (3) of Section 144. This Sub-section, they considered, has nothing to do with the nature of the order, but is merely one of the four Sub-sections which refer to the manner of promulgation and to the duration of an order under Sub-section 1. My own views coincide with those of their Lordships of the Lahore High Court, as expressed in that case. In my opinion there is nothing in any of the four points made in the letter of reference and argued before me, which would justify interference with this conviction. The reference is therefore discharged and the convictions will stand.