Sridhar Gupta vs State

S.K. Kaul, J.—These two revisions arise out of same transaction and are directed against same judgment. These were heard together and shall be disposed of by one judgment.

Both these revisionsits have come up to this Court challenging the order of the learned Additional Sessions Judge who had dismissed their appeals and had confirmed their sentence and conviction awarded to them by the Magistrate who had sentenced them to pay a fine of Rs. 100/- each or in default to undergo 15 days'' R.I. u/s 447 I.P.C.

It is not disputed in this case that these two revisionists are employees in the Ordnance Clothing Factory at Shahjahanpur. There is a workers Union named as Pratiraksha Karmchari Union, Ordnance Clothing Factory, Shahjahanpur, which was registered under the Indian Trade Union Act, 1926. The revisionist Sridhar Gupta is General Secretary of the aforesaid Union. On 16th July, 1970, Sridhar Gupta served a notice on General Manager, Ordnance Clothing Factory, Shahjahanpur, as follows:

Subject- HUNGER STRIKE.

Respected Sir,

In pursuance of the decision of our Executive Committee of our Union, I am directed to inform you that as a protest against wrongful removal from service of our Vice-President Sri Rasool Bux, the Union Official will launch 48 hours hunger strike in front of the Gate w.e. 4-8-1970 from 4.30 p.m.

Submitted for your information and be treated as notice also.

Thanking you.

Yours faithfully, Sd. Sridhar Gupta (General Secretary)

The prosecution story now reads in this way that Sri S.R. Kalia, Deputy Manager, Ordnance Clothing Factory, Shahjahanpur, informed the General Secretary on 3rd August, 1970, that permission for launching hunger strike in front of the factory gate in the compound of the employees club and holding meetings with the use of the loud speaker in the same connection would not be granted. Copies of this letter were sent to the district authorities as well. It appears that the Union workers did not pay any heed and, as such, a tent was pitched on 4th August, 1970, inside the factory premises. A meeting was organised at 4 p.m. and thereafter not only by means of loud speakers speeches were delivered against the conduct of the higher authorities of the aforesaid factory, but Sridhar Gupta also sat on hunger strike as proposed. On 4th August Sri Malhotra, Supervisor ''A'' grade gave confidential report to Sri Kalia drawing his attention to the aforesaid acts being done by the office bearers of the Union and other employees and thereupon Sri Kalia drafted a notice on 4th August, 1970, Ext. Ka-4 which was addressed to the General Secretary, namely, Sridhar Gupta. By means of this letter, the attention of the General Secretary was drawn to the fact that the permission had not been accorded for the acts being commttied and that their occupation was not only unauthorized but they were directed to vacate the possession which they had unauthorisedly taken. This letter, according to the prosecution, was handed over to Babu Ram for delivery, but the same was refused by the General Secretary. On 5th August, 1970, another letter on similar lines had been drafted by Sri Kalia and this was handed over to Madho Singh for delivery, but once again this letter was not received. On the basis of the report sent by Sri Kalia, the head constable Rajpal Singh posted at P.S. Sadar Bazar scribed F.I.R. Ext. Ka-6 on the basis of Exts. Ka-2, Ka-4 and Ka-5 (Ka-5 being the letter dated 5th August, 1970). The case was investigated by Sub-Inspector Hari Nandan Singh. He went to the spot, prepared a site-plan and after completing investigation in the usual manner, he submitted a charge-sheet on the basis of which the present two revisionists along with other members were asked to stand their trial u/s 447 I.P.C. I am not concerned with the case of other persons who were initially charge-sheeted because they were acquitted by the Magistrate and no appeal against their acquittal was preferred.

The defence of Sridhar Gupta was that he went on hunger-strike which was a legitimate object of the Union as a protest for the illegal termination of services of the Vice-President of the Union. He denied other allegations of the prosecution and alleged false implication on account of enmity, primarily on account of the fact that he was an office-bearer of the Union. Maya Prakash admitted that he addressed the meeting, but asserted that no offence was committed by him and. he too was implicated as he used to take active part in the Union activities. He denied other allegations. The Magistrate concerned, on an appraisement of the evidence, found that the charge was fully made out as against these two revisionists and, as such, he sentenced and convicted them as above. Both these accused-revisionists went up in appeal, but remained unsuccessful and it is in this manner that the two revisions were preferred to this Court.

I have heard learned Counsel for the revisionists at length. In my view, both these revisions should be allowed.

Before dealing with the facts of the case, I would like to mention that according to Section 15(d) of the Indian Trade Unions Act, 1926, the objects on which general funds could be spent were as follows:

The general funds of a registered Trade Union shall not be spent on any other objects than the following, namely.... (d) the conduct of trade disputes on behalf of the Trade Union or any member thereof;

Section 441 I.P.C. after amendment in this State, the amendment being Criminal Laws (U.P. Amendment) Act, 1961 (XXXI of 1961) reads as follows:

Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having unlawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, or, having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U.P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, or its possession, or use when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice, is said to commit ''criminal trespass''.

The prosecution story, so far as the facts are concerned, is proved to this extent that a notice Ext. Ka-1 dated 16th July, 1970, noted above was served by the General Secretary of the Union on the General Manager, and the purpose of this notice was that as a protest against wrongful removal from service of the Vice-president, Sri Rasool Bux, the Union officials were to go on hunger strike for 48 hours with effect from 4th of August, 1970, from 4.30 p.m. It is also proved that Sridhar Gupta went on hunger strike for 48 hours, and during this period inflammatory speeches were delivered by some persons including Maya Prakash, the other revisionist, the trend of which was against the highhandedness of high officers of the aforesaid factory. The question arises whether this conduct of the two revisionists would attract provisions of Sections 441/447 I.P.C. or not. So far as the first part of Section 441 noted above is concerned, it is essential that before a person is convicted of the offence u/s 447, the prosecution should prove the dominant intention of the person who commits the offence. It is immaterial whether he had or could have the knowledge that his conduct or action might result in annoyance or intimidation. Now, in this case the dominant intention was merely to protest and to launch a token hunger strike for 48 hours. In this connection, reference may be made to a Supreme Court ruling reported in The Punjab National Bank Ltd. Vs. Its Workmen, . In that case some workmen were dismissed wrongfully by the bank and they had claimed reinstatement and payment of wages. The reference on two issues had a chequered carrier. Ultimately, the employees were dismissed and one of the grounds taken on behalf of the Punjab National Bank was that the employees being guilty under Sections 441/447 I.P.C., they could not claim reinstatement. It was observed at page 176 in paragraph 47 by their Lordships of the Supreme Court that:

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There is another case of the Supreme Court reported in Mathuri and Others Vs. State of Punjab, , wherein interpretation regarding Section 441 was called for. The Supreme Court observed:

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It is, therefore, clear that so far as the first part of Section 441 IPC is concerned, the two accused-revisionists cannot be said to have committed any offence because the dominant intention of these two persons was merely to draw the attention of the higher authorities of the factory against dismissal of Rasool Bux which, according to them, was a wrongful one. They had given ample notice to the authorities and that would go to show that they considered this action to be a legitimate object of the trade union activities.

The question arises whether second part of Section 441 IPC which was specifically brought on the statute as an amendment in this State, applies in the case of the two revisionists or not. I find that apart from the statements of Sri Kalia PW 1 and Sri Malhotra PW 2, there is a notice Ext. 4 dated 4th August, 1970, which clearly goes to show that after the hunger strike commenced and the meeting was on, this notice was drafted by Kalia directing the General Secretary to remove unauthorised occupation. The second part of Section 441 IPC obviously would have been attracted if the prosecution had been able to prove that the notices Ext. Ka-4 and Ext. Ka-5 dated 4th and 5th August, 1970, respectively were duly served upon Sridhar Gupta, General Secretary, to whom these were addressed. Now, both Sri Kalia and Sri Malhotra did not serve the notice. On the other hand, Sri Malhotra stated that Ext. Ka-4 was handed over to one Babu Ram, gate keeper, for service, while Ext. Ka-5 was handed over to one Madho Singh for service. Their statements, no doubt, is that this notice was not accepted, but that statement would be hearsay because it is the person who is deputed to effect the service, who should have been examined in proof of the fact that these two notices were served upon the General Secretary who is Sridhar Gupta. The provisions of Section 441 Part II IPC clearly require that there should not only be a notice in writing at the time when the unauthorised act was being done, but such a notice has also to be served upon the trespasser by the date specified in the notice. It may be that both these persons Madho Singh and Babu Ram were cited in the charge-sheet, but they were not examined for reasons best known to the prosecution. I, therefore, find that although a notice dated 4th August, 1970, and another notice dated 5th August, 1970, were drafted by Sri Kalia, but the evidence is lacking whether such a notice was duly delivered to the General Secretary to whom these notices were addressed. It was for the prosecution to prove due service, and once that evidence is lacking in this case, it cannot be urged that second part of Section 441 IPC would be attracted.

As a result, I am of this view that none of these revisionists can be said to have committed an offence punishable u/s 447 IPC. I would allow the revisions,, set aside the sentence and conviction awarded to these two revisionists and acquit them of the charge with which they were asked to stand their trial. Fine, if paid, shall be refunded.