Ram Babu and Others vs Emperor

Pande, J.—The three petitioners, Ram Babu, Ram Singhasan Prasad and Girdhari Mistry have been convicted u/s 147, Penal Code, the first two petitioners have been sentenced to rigorous imprisonment for eighteen months each and the third one to rigorous imprisonment for one year. The three petitioners have been concerned in a riot that is said to have taken place in village Bagodar, police station Bagodar in the District of Hazaribagh on 2nd April 1944, which was the day of Ram Navami Hindu festival. Village Bagodar is situated on both sides of the Grand Trunk Road lying between milestones 215 and 216. The Grand Trunk Road runs east to west through the village. There are about four hundred houses of Hindus and one hundred houses of Mahomedans. There is a Mahabir-asthan to the east of the village by the side of the Grand Trunk Road. There is a temple dedicated to goddess Kali, commonly known as Kalimanda, to the west of the Mahabir-asthan, at a distance of about 150 paces by the side of the Grand Trunk Road. Further west at about 50 paces from the Kalimanda on the Grand Trunk Road there is a culvert. About the culvert there is a big Simal tree. A mosque stands about hundred paces west of Kalimanda. In front of the Kalimanda there is a Siris tree. Further west to the mosque is another Mahabir-asthan in village Manjhladih.

For some years past, there has been communal tension between the Hindus and Mahomedans of the locality. In 1944 Ram Babu obtained a license from the police for taking out Ram Navami procession on 2nd April 1944. The license specified the hours for the procession and further directed that the processionists could go from Mahabir-asthan in mouza Bagodar to Kalimanda within the same mouza. The authorities had taken precautionary measures against any trouble that might possibly arise on account of prevailing communal feeling in the locality. A Magistrate with ten armed constables, one Havildar and the Sub-Inspector of Police were posted, to guard against any possible attempt of the processionists to pass beyond the prescribed limit, to avoid any conflict between Hindus and Mahomedans. The armed constables were drawn up in a cordon near about the culvert and the Magistrate and the Sub-Inspector, Police, of Bagodar were also there. When the procession reached Kalimanda, the assembly attempted to proceed beyond the prescribed limit. While they had proceeded onward and approached near the culvert they were pushed back by the Sub-Inspector under the orders of the Magistrate. The processionists retreated, some went back to their houses, apparently in resentment, taking away the flags, some were showing their faces near the Kalimandas while some other were discussing there what to do. After some consultations some members of the assembly tried to push beyond the culvert but they were again pushed back by the Sub-Inspector under the orders of the Magistrate. At this stage, it is said, one member of the group, Kunj Lal, hit the Sub-Inspector on his wrist with a lathi. Kunj Lal was arrested immediately. The Sub-Inspector, while engaged in pushing back the crowd, got mixed up in it and a confusion followed upon some people pelting brickbats and stones lying about the road sides. Apparently the Sub-Inspector finding himself in danger, or apprehending danger, ran to the house of one Haricharan Lohar for safety where he concealed himself and bolted the door from inside. It is said that some members of the mob surrounded the house. One constable reported to the Magistrate that the Sub-Inspector''s life was in danger. The Magistrate deputed four constables with the Havildar for the protection of the Sub-Inspector with instructions to warn the mob to disperse and in case of their refusal to disperse the mob by firing, if necessary. The Havildar and the constables eventually fired on the mob with the result that three men died at the spot and two others died later in the hospital and several men received gunshot injuries. After investigation forty men were put on trial on various charges. The Magistrate convicted twenty of them u/s 147, Penal Code and also u/s 358/149, Penal Code and one was convicted u/s 32, Police Act, and sentenced to a fine of Rs. 30 only. Of the twenty men who were sentenced u/s 147, Penal Code, eighteen were sentenced to rigorous imprisonment for one year each and two, namely, Ram Babu and Ram Singhasan, to rigorous imprisonment for eighteen months each. No separate sentence was passed u/s 353, Penal Code or Section 353/149, Penal Code. On appeal the learned Judicial Commissioner of Ranchi set aside the conviction u/s 353/149, Penal Code and affirmed the conviction and sentence against four and acquitted the remaining sixteen men. Those four men came up in revision before this Court against the orders of the Courts below. The application of one of them was rejected and rule was issued in the case of the three petitioners before us.

The learned advocate for the petitioners contended that on the facts found by the Courts below the only offence for which the petitioners may at best be liable is of violation of the terms of the license in attempting to proceed beyond the prescribed limit for which they may be liable to punishment u/s 32, Police Act, which prescribes the maximum punishment of fine of Rs. 200 only; while u/s 141, Penal Code, an assembly of five or more persons is designated as an unlawful assembly, if the common object of the persons composing that assembly is, among other matters prescribed in the section, to commit an "offence." Reference is made to Section 40, Penal Code, which provides that the word offence in Section 141 refers to acts punishable under the special or local law with imprisonment for a term of six months or upwards with or without fine. It is, therefore, argued that the petitioners merely for violating the terms of the license cannot be said in law to be members of an unlawful assembly, and, therefore, their conviction u/s 147, Penal Code, is bad in law.

It may be conceded that the members of the assembly did not constitute an "unlawful assembly" with the common object to commit an "offence" according to Clause (3) of Section 141, Penal Code. But there are other clauses to the section and on the evidence which I shall refer presently, the case seems clearly to fall under Clause (2) of the section which runs thus:

An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is.... Second--to resist the execution of any law, or of any legal process.

It has been found by the learned Judicial Commissioner that the processionists attempted twice to proceed beyond the police cordon. In the first attempt they were pushed back and they readily obeyed the order without any resistance. But after some consultations at the Kalimanda, some members of the procession made a fresh attempt to proceed beyond the cordon, in spite of the orders of the competent authorities not to do so, and, therefore, fee group of men who made the second attempt to break through the cordon and had to be pushed back a second fame, constituted an unlawful assembly within the meaning of Section 141, Penal Code. The view taken by the learned Judicial Commissioner finds support from a decision of a Special Bench of this Court in Emperor Vs. Abdul Hamid, and a Division Bench decision of the Madras High Court in The Public Prosecutor Vs. Vadlamudi Satyanarayana and Others, .

In those cases a procession had been taken out in defiance of orders u/s 31(2), Police Act and in spite of warnings to desist from doing so, some members of the procession persisted in disobeying the orders. In the present case the organiser of the procession had, no doubt, obtained a license but they violated the conditions of the license which prescribed the route and the limit up to which the procession was permitted to proceed, and on being directed by the police and the Magistrate not to do so, a group of men of the procession, after consultation at a meeting, apparently resolved to disobey the orders, and in defiance of the order, actually made a determined effort to break through police cordon. This act of that group of the processionists who so acted was clearly an overt act amounting to resistance to the execution of the law.

The law is enacted in Section 30, Police Act. The issuing of the order by the police is the execution of that law. Resistance to the conditions set out in the order issued under the law is resistance to the execution of the law. Therefore that case is clearly governed by Clause (2) to Section 141, Penal Code. In Emperor Vs. Abdul Hamid, the majority view is thus expressed:

When a notification is issued by an executive authority in exercise of a power conferred by statute, that notification is as much a part of the law as if it had been incorporated in the body of the statute at the time of its enactment. The command is in effect a command by the appropriate legislative authority. In the present case if the notification was in compliance with Section 30, Police Act, then, in my opinion, it was a law and certainly a legal process.

The prosecution case is that the petitioners resisted the execution of the law, namely, defiant violation of the conditions of the license, in spite of definite prohibition by the Magistrate and the police posted at the cordon to enforce compliance with the conditions of the license. These officers were there to ensure due execution of the orders made under the law as laid down in Section 30, Police Act and the determined disobedience of their orders was clearly an overt act amounting to resistance to the execution of the law. In The Public Prosecutor Vs. Vadlamudi Satyanarayana and Others, their Lordships Sir Owen Beasley C.J. and Cornish J. observed:

If the police order, not to direct a procession without a license, is the execution of the law, then clearly the direction of the procession, after such an order or after the respondents became aware of such an order, amounts to resistance of the execution of the law.

The above principle applied with equal force to disobedience of the orders of competent authorities posted at the spot to enforce compliance with the conditions of license u/s 30, Police Act. Therefore the group of the processionists who attempted to push beyond the cordon in defiance of the police orders are liable for the offence under. Section 143, Penal Code. It has further been found that one of the members of that group of processionists used force in assaulting the Sub-Inspector with a lathi. Therefore such of the members of the procession who were in that group are guilty of the offence u/s 147, Penal Code.

There remains the question whether the three petitioners were in that group. (His Lordship then discussed the evidence and came to the conclusion that only the petitioner Ram Babu was in the group while the other two were not and proceeded further.) Therefore the conviction of these two petitioners must be set aside and the conviction of Ram Babu must be affirmed.

The learned advocate submitted that the sentence of eighteen months'' rigorous imprisonment is too severe and it should be reduced to the period already undergone which it is stated has been about six months. But Ram Babu was the leader of the processionists and it was at his exhortation that some of the members of the procession made a second attempt to push beyond the police cordon. The force used by the unlawful assembly was, however, very slight. Having regard to these circumstances I consider that a sentence of rigorous imprisonment for one year is quite adequate to meet the ends of justice. The sentence is reduced accordingly. With this modification in the sentence Ram Babu''s petition is dismissed.

I would allow the petitions of Girdhari Mistry and Ram Singhasan Prasad, set aside the convictions and sentences passed against them and direct that they be set at liberty.

Das, J.

I agree; but I would like to add that I have some doubt if Clause (2) of Section 141, Penal Code would apply in the present case. Both Emperor Vs. Abdul Hamid, and The Public Prosecutor Vs. Vadlamudi Satyanarayana and Others, . were cases in which a procession was taken out in, defiance of a notice u/s 30, Police Act, prohibiting any processions etc., and in spite of warnings to desist from doing so. The ratio decidendi was that a notification issued by an executive authority in exercise of a power conferred by statute is as much a part of the law as if it had been incorporated within the body of the statute at the time of its enactment. The present case is not a case of taking out a procession in defiance of a notice u/s 30, Police Act.

I am, however, satisfied on the facts of this case that that part of the procession which tried to break through the police cordon by force in spite of orders to the contrary, constituted an unlawful assembly either under the fourth or fifth clause of Section 141, Penal Code.