Patna High Court
Inderdeo Singh And Ors. vs The State on 17 August, 1950
Equivalent citations: AIR1951PAT242, AIR 1951 PATNA 242
JUDGMENT Das, J.
1. The five petitioners have been convicted of contravening an order passed under Section 6, Bihar Maintenance of Public Order (NO. 2) Ordinance, 1919, and sentenced to rigorous imprisonment for one year each. Section 6 of the said Ordinance, so far as it is relevant for our purpose, reads thus:
"The Provincial Government may, for the purpose of securing the public safety OR the maintenance of public order, by general or special order, prohibit, restrict or impose conditions upon, the holding of or taking part in public processions, meetings or assemblies."
On 25-6-1949, the Provincial Government pass-ed the following order purporting to act under the provisions of Section 6:
"In exercise of the powers conferred by Sub-section (1) of Section 6, Bihar Maintenance of Public Order (No. 2) Ordinance, 1949, and for the purpose of securing the public safety and the maintenance of public order, the Governor of Bihar is pleased to direct that no public meeting or procession shall be held without the permission of the District Magistrate or the Additional District. Magistrate of the district;
Provided that this order shall not apply to marriage and funeral processions or to condolence meetings and public meetings held for purely literary purposes."
2. The allegation against the petitioners was that on 15-8-1949, a day set apart for the celebration of independence of this country, the petitioners along with other members of the communist party took out a procession in order to join a public meeting convened by the said party near a lower primary school of village Kazi Fatu Chak, for the purpose of proclaiming the creed of the party and condemning those in charge of the Government of the country. The Sub- Inspector of Police of Barbigha police station, received an information that such meeting was going to be held, and having received that information on 14-81949, he went to the place on 15th, saw the procession and disperse it before any meeting could be held. The five petitioners, it was alleged, headed the procession, carried communist flags and shouted slogans condemning capitalism and praying for the destruction of what had been termed as " Jawahar Raj " meaning probably the authority of the Prime Minister of India.
3. The Courts below found the petitioners guilty of contravening the order quoted above, inasmuch as no permission of the District Magistrate or the Additional District Magistrate was taken for holding the procession in question,
4. Learned counsel for the petitioners has addressed us at great length on the legality or otherwise of the conviction. He has raised several points, and I propose to deal with them briefly in view of the order which we are passing in this case.
5. The first point urged before us is that there is no finding that the procession in question was a public procession. It is stated that in the charge or in the judgment of the trying Magistrate, there is no mention of the word " Public ". It is argued that though the learned Sessions Judge who heard the appeal of the petitioners, stated in the concluding part of his judgment that the procession was a public procession, he did not really apply his mind to the question, nor did he find the necessary facts which would lead to the inference that the procession was a public procession. It is to be observed that Section 6 (1) of the Ordinance, which I have already quoted, refers to public procession, meeting or assemblies. Sub-section (2) of the said section explains what is meant by a pubic procession. That subsection is in the following terms:
"For the purpose of Sub-section (1), any procession, meeting or assembly which is open to the public or to any class or portion of the public, whether held in a public or a private place and whether admission thereto is restricted by the issue of tickets or otherwise, shall be deemed to be a public procession, meeting or assembly, as the case may."
Learned counsel for the petitioners contends that the real teat according to the explanation given in Sub-section (2), is whether the procession in question was open to the public or to any class or portion of the public. It is contended that no evidence was led on that point, and no finding arrived at by the Courts below that the procession in question was open to the public or to any class or portion of the public. In the circumstances, it is contended that the conviction of the petitioners was bad in law.
6. Learned counsel for the petitioners has taken us through the evidence in the case. He has also referred us to a decision of the Bombay High Court in Shankar Papayya v. Empsror, A. I. R. (80) 1913 Bom. 177 : (44 Cr. L. J. 680). Having examined the evidence, we find that the following fasts are sufficiently clear and established. The procession was being taken out or held at a public place. It was going along a public thoroughfare to a meeting which undoubtedly was public meeting, though called by the communist party in furtherance of the objects of that party. Learned counsel does not dispute' that the meeting called for that day near the lower primary school was a public meeting. He has confined his argument to the question whether the procession was a public procession. It is clearly proved that the processionists were going to that public meeting. Secondly, the purpose of the procession, as also of the public meeting, was a public purpose, the purpose of a party, as opposed to a private or individual purpose, the purpose being the furtherance of the objects of the communist party and the condemnation of the powers that be. The slogans which the processionists shouted, make that sufficiently clear. Thirdly, there is clear evidence, of at least, one witness, if not of more, that the procession was a procession of the communist party. There is clear evidence in the record that besides the five petitioners, there were others. There is also evidence that there were sightseers by the side of the road, as the procession went along a public thoroughfare. It is to be observed that the test laid down is not whether sight-seers actually joined the procession; but that test is whether it was open to the members of the public, or of a class of the public, to join in the procession. There is no evidence that the procession, while it was proceeding along a public thoroughfare, had imposed any restriction on the joining of any outsider in the procession, or of any sympathiser in the procession. In my opinion, the question is one of a reasonable inference from the facts established. I am of the view that the only reasonable inference from the facts proved in the case is that the procession was a public procession within the meaning of sub a. (a) of Section 6 of the Ordinance. I may observe here that Sub-section (2) of Section 6 of the Ordinance enlarges, rather then restricts, the ordinary concept of a public procession, Learned counsel foe the petitioners has very vehemently contended before us that it would be throwing the onus on the accused person to draw an inference from the negative namely, that there was no restriction against anybody joining the procession. His contention is that it was for the prosecution to prove affirmatively that a member of the public or a class of the public could join in the procession. As I have already said, the question is not really one of onus of proof, bat of a reasonable inference to be drawn from the facts proved in the ease. On that evidence I am satisfied that the procession in question wag a public procession within the meaning of Sub-section (2) of Section 6 of the Ordinance.
7. Secondly, it is contended that Section 6 makes a difference between holding a public procession and taking part in a public procession. I agree that the distinction is between holding a procession and taking part in a procession; but, let it be remembered not between holding a procession and taking out a procession. Taking out a procession may mean the same thing as holding a procession. The juxtaposition in Section 6 of the Ordinance is between holding a procession or taking part in a procession. The distinction between the two is, I think, quite appreciable. A person walking along a street sees a procession passing if he is a person who is hesitant or of quiet disposition, he may merely look at the procession, and let it pass by. A person who is not so quiet, may join the procession, either for fun or because he sympathises with the object of the procession. That, in my opinion, would be taking part in a procession. But holding a procession imports, in my opinion, some idea of leading, arranging convoking, etc. The facts proved in this case show that the procession was arranged by the communist party. The petitioners are members of that party. The petitioners led the procession. They carried communist flags a ad were most vociferous in the slogans which the processionists shouted. In these circumstances, I do not think that the Courts below were wrong in finding that the petitioners held the procession in contravention of the order to which I have already made a reference. The entire set of circumstances has to be kept in mind; namely, a public meeting had been called for that day at the lower primary school by the same party which had arranged the procession, and the petitioners were leading the procession to that place. The words 'to hold' have innumerable shades of meaning. With regard to processions, public meetings, etc the meaning given in the Oxford Dictionary is "to keep together, to keep in being, existence, or operation, to carry on; to convoke and preside over (a meeting assembly, council, or the like); to go through formally perform (any proceeding or function); to keep observe, celebrate (a festival); to carry on, sustain, etc." If the expression "to hold" is read in the context in which it occurs in Section 6 of the Ordinance and the ordinary meaning of the word. I do not think that it can be argued with success that the petitioners were not holding a public procession within the meaning of Section 6 of the Ordinance.
8. This brings me to the last contention. The Ordinance in question was repealed by the Bihar Maintenance of Public Order Act, 1949, which came into force on 4-1-1950. The conviction in this case was recorded on 7-12-1949, The relevant portion of Section 26, Bihar Maintenance of Public Order Act, 1949, is in these terms :
"All proceedings commenced, officers appointed or authorised, rules and orders made, sentences passed or facts ordered or dons, in exercise of any jurisdiction or power conferred by or under the provisions of the said Ordinance, shall be continued and be deemed to have been respectively commenced, appointed or authorised, made passed, ordered or done under this Act and any enactment or document referring to any of the said provisions shall be construed to refer to this Act or to the corresponding provision thereof."
It is contended that the sentence which was passed on the petitioners under the ordinance will, under a. 26, Bihar Maintenance of Public Order Act, 1949, be deemed to be a sentence passed under the latter Act. The next step in the argument of learned counsel for the petitioners is that on 26-1-1950, the day on which the Constitution of India came into force, the Bihar Maintenance of Public Order Act was rendered void so far as the relevant section relating to the banning of public processions, etc was concerned; because that section came in conflict with Article 19 (1) (b), Constitution of India. Article 19 (1) (b). Constitution of India is in these terms :
"19 (1) All citizens shall have the right -
* * * * * (b) to assemble peaceably and without arms."
It is contended that as the relevant section of the Bihar Maintenance of Public Order Act, 1949, became void on 26-1-1950, the sentence must also fall on that very day, and the petitioners could not be detained beyond that date under any sentence passed against them. This argument of learned counsel (or the petitioners over-looks, in my opinion, an important clause, namely, Clause (3) of Article 19, Constitution of India. That clause is in these terms :
"Nothing in Sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the Interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause."
Therefore, the question is whether the relevant section of the Bihar Maintenance of Public Order Act relating to the banning of public procession, etc., was an unreasonable restriction in the exercise of the right conferred by Article 19 (1) (b), Constitution of India. In my opinion, it is sufficient to state that the restriction imposed by the Bihar Maintenance of Public Order Act, so far as it related to public processions, etc., was not unreasonable; and therefore, it cannot be held that on 26-1-1950, the sentence passed against the petitioners fell along with the relevant section of the Bihar Maintenance of Public Order Act, 1949. The restriction actually imposed cannot be said to be unreasonable -- judged by any standard (see in this connection Dr. N. B. Khare v. The State of Delhi, (A. I. R. (37) 1950 Section C. 211) : this apart from the question whether a sentence legally passed can be void by reason of repeal of the law under which it was passed.
9. There is another branch of the argument. It is contended that in Section 6 of she Ordinance as well as in Section 9, Bihar Maintenance of Public Order Act, the expression used is for the purpose of securing the public safety or the maintenance of public order." It is contended that under the Government of India Act, 1936, the Provincial legislature had no authority to make a law with regard to the public safety, but had authority to make a law with regard to the maintenance of public order only. It is contend ed that inasmuch as Section 9, Bihar Maintenance of Public Order Act: refers both to public safety or maintenance of public order (the word "or" being used in a disjunctive sense, it is contended), that particular section was beyond the Legislative competence of the Provincial legislature. In my opinion, the words "public safety" and "public order" are inter-chargeable terms in the context in which they have been used. I am unable to agree with the contention that Section 6 of the Ordinance or Section 9, Bihar Maintenance of Public Order Act, 1949, was ultra vires the Provincial legislature.
10. The contention raised on behalf of the petitioners fad. The only other question for consideration is the question of sentence. It is stated by learned counsel for the petitioners that they have already been in jail for more then six months, probably seven or eight months. It appears that the maximum sentence which could be imposed under the law was awarded against the petitioners. I do not think that the ends of justice require that in the present case the maximum sentence should be imposed I think that the ends of justice will be fully met if the conviction of the petitioners is upheld, but the sentence is reduced to the period already undergone. I would accordingly, reject the petition, subject to the modification of the sentence referred to above. The petitioners should now be released from custody.
Sinha, J.
11. I agree.