Kirit Narain Singh and Others vs Emperor

Reuben, J.—The appellants have been convicted by the Special Judge of Muzaffarpur, under Sections 143, 448/149, Penal Code, and Defence of India Rule 56 (4). In respect of the first two convictions, they have been sentenced each to rigorous imprisonment for six months and one year, respectively. For the conviction under the Defence of India Rule, they have been sentenced to rigorous imprisonment for throe years. The sentences of imprisonment have been directed to run con-currently. At the time of his conviction and sentence in this case, the appellant Kirti Narayan Singh was undergoing imprisonment in other cases. The learned Judge has given a direction u/s 397, Criminal P.C., that the sentences imposed in this case would also run concurrently with the imprisonment in respect of the previous eases. There were 18 other persons tried along with the three appellants. Nine of them, in addition to the three appellants, were also convicted, two of them were bound down u/s 562, Criminal P.C., and the other seven were given substantive sentences. None of them has appealed.

The case arises out of an occurrence which took place on 14th August 1942 at about 1 P.M. at the Sheohar police station. On that day at that time a mob of about 400-500 men carrying congress flags came to the police station shouting congress slogans. Some members of the mob were armed with weapons such as small spears, sticks, lathis and dabias. The mob entered the Thana compound, some of the members got on the Thana verandah and tore down the notices posted on the Thana walls exhorting people to contribute to war funds. They wrote on the walls with chalk slogans such as ''Hindustan Aazad''. Some of the mob hoisted a Congress flag on the gate of the hajat. Another Congress flag was posted up in the police station compound by fixing it to a pole fixed in the ground. Before the mob arrived, the Sub-Inspector of Police (p. w. l) had locked the Malkhana and the inspection room. One of the members of the mob, Harihar Pande, asked the Sub-Inspector to return the property and papers of the Local Congress office, which had been seized by the Sub-Inspector some time previously. The Sub-Inspector told him that the keys had already been sent by him to the District Magistrate and that it was not possible for the Sub-Inspector to return the things.

After this a portion of the mob left the place, while others remained on guard near the police station watching that no work was done by the police. Work was altogether suspended at the police station from that day till 18th August. On 19th August, under the orders of his superior officers, the Sub-Inspector went with his staff to Sitamarhi where "concentration camp" had been formed. They reached the concentration camp on the 2lst at about 7 p. M.

The first information report (Ex. 1) in the case was drawn up by the Sub-Inspector (P. w. 1) on 22nd August, after reaching the concentration camp. It contains a list of about 33 names, including the names of the three appellants. The Sub-Inspector tells us that the list was prepared by him on 14th with the help of the local dafadar (p. W. 3), who is a witness in the case. Nine witnesses have deposed as eye-witnesses of the present occurrence, p. w. 1 is the Sub Inspector, p. w. 2 is his assistant Sub-Inspector, p. w. 3 is a local dafadar, P. Ws. 4, 5, 6 and 7 are police constables, havildar and p. w. 9 is a village chaukidar. The main facts alleged are not disputed; and the only question in the case is the usual question which arises in such eases, namely, whether it has been proved to the satisfaction of the Court that these persons were concerned with the offence in question.

There is one point, however to be considered before I turn to the individual cases, namely, whether the evidence on the record is sufficient to justify the conviction under Defence of India Rule 56 (4). An offence under Defence of India Rule 56 (4) is committed by a person who contravenes any order made under this rule. The only evidence upon the record relating the existence of such an order consists of the statement of the Sub-Inspector of Police.

The order of the District Magistrate banning processions, meetings and assemblies was proclaimed by beat of drum in my elaka before the date of the present occurrence.

Obviously, this evidence is insufficient to sustain the conviction. Before a Court can convict under this rule, or uphold a conviction under this rule, it must be satisfied that there was an order lawfully issued under this rule by an officer properly empowered thereto, which order the accused persons were bound to obey. On the statement of the Sub-Inspector as it stands, it is not possible for any Court to come to such a finding. Mr. C. P. Sinha for the Crown has pointed out that there was no cross-examination upon the point. The absence of cross-examination by the defence relative to this point is not, to my mind, an admission of the existence of such an order. If the prosecution fail to produce evidence which is necessary for the, establishment of their case, it is not for the defence to point out the omission to the prosecution. The onus of proving all the essentials necessary to establish the guilt of the accused persons is on the prosecution. If they do not adduce the necessary evidence, the prosecution must fail, and no argument against the accused can be based on the fact that the defence failed to say anything about the omission of necessary evidence on the side of the prosecution. It is true, that the appellant Kishori Parsanna Sinha in his statement u/s 342, Criminal P.C., answered in the affirmative the question

Did you contravene the? provisions of Rule 56, Defence of India Rules by taking part in a procession which consisted of about 400-500 men which marched upon the Sheohar Thana on 14th August 1942?

I would not interpret this answer as an admission of the existence, of a lawful order under Defence of India Rule 56. Under the provisions of Section 342, Criminal P.C., the Court is empowered, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, to put such questions to him as it considers necessary. Here there was no evidence whatever regarding the existence of a proper order under Defence of India Rule 56. The Court, therefore, in putting this question went beyond its authority, u/s 342. There is another way of locking at this matter, namely, that the question, besides mentioning Rule 56 of the Defence of India Rules, mentions also the procession of 400-500 men, which marched upon the Sheohar Thana on that date. It would be difficult for a layman to distinguish between the two parts of the question, namely, the one relating to Defence of India Rule 56, and the other relating to the procession which went to the Police-station that day. When, therefore, he replied to this question in the affirmative, he may merely have intended to reply to the second part of the question. Whether in fact his act contravened the provisions of Rule 56 was not a matter for the accused to decide; that would be a matter for the Court. Mr. Sinha has urged that, in view of the fact that the Sub-Inspector in his evidence refers to the order under Defence of India Rule 56 and there has been no cross-examination on the point the Crown should now be given time to produce the order and to satisfy the Court that there was in fact a lawful order under Defence of India Rule 56. I do not think that at this stage we can allow the Crown to fill in gaps in its evidence. The absence of cross-examination on the point, as I have explained above, makes no difference. The defence were, in my opinion, well advised not to draw the attention of the Crown to the omission in the trial Court. On the above grounds, I am of the opinion that the conviction under Defence of India Rule 56 (4) cannot be supported. This is a finding which affects also the cases of the convicted persons who have not appealed to this Court. [After considering the cases of the individual accused persons his Lordship held that they were all rightly convicted and proceeded.]

The next point that calls for consideration is the question of sentences. These are: six months u/s 143 and one year u/s 448/149 running concurrently. The offence committed was a serious one. The prosecution witnesses depose that several members of the mob carried dangerous weapons. Fortunately, there does not appear to have been much resistance on the part of the police. Had any resistance been offered, there might easily have been a much more serious occurrence than actually took place. For several days the work of the police station was at a stand still. In the circumstances the sentences imposed are not, in my opinion, unduly severe. Our attention has been drawn to the note made by the special Judge when considering the case of appellant Kirti Narain Singh, that the services rendered by him from time to time to the police during the disturbances would be taken into consideration in awarding punishment. It is pointed out that in spite of this note the same sentence was imposed upon him as upon the other appellants. In view, however, of the order u/s 397, Criminal P.C., that the sentence imposed on this appellant should run concurrently with the sentences previously imposed (which sentences according to the statement of the appellant amounted in all to eleven-and-a-half years) the sentence imposed in this case was in effect nil. We are told from the Bar that several appeals have been filed by this appellant and that in all his appeals, which have been decided up to now, he has been successful.

There is now only one appeal left in addition to the appeal with which we are now dealing. I presume, therefore, that most of these sentences which comprise the eleven, and a half years, mentioned by the appellant in his statement u/s 342, are no longer in force. I see no reason, however, to make any alteration in the sentences imposed by the learned Special Judge in respect of the convictions now under consideration. I would leave these sentences as imposed. I would also leave untouched his order u/s 397, Criminal P.C., which may make some difference in view of the appeal which is said to be still undisposed of. On the above grounds I would set aside the conviction and sentence under Defence of India Rule 56 (4) against all the appellants.

I would affirm the convictions and sentences under Sections 143 and 448/149 against the appellants. In exercise of our powers of revision, I would" also set aside the conviction and sentences under Defence of India Rule 56 (4) against the convicted persons who have not appealed to this Court, namely, Radhamohan Gupta, Mahraj Raut, Khenhar Raut, Mathuro Raut, Harihar Panday, Janki Raut, Sheonandan Kurmi, Jugal Kishore Marwari and Birja Chowdhury. Apart from this, we see no reason to interfere with the convictions and sentences of the other accused persons.

Varma J.

I agree.