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Aghore Chandra Deb Barma and ors. Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantAghore Chandra Deb Barma and ors.
RespondentThe State
Prior history
Rajvi Roop Singh, J.C.
1. This is an application in revision under Section 439 Cr.P.C. by Shri Aghora Chandra Deb Barma and 6 others against their conviction under Section 32 of the Police Act by the S. D. M., Sadar, Tripura, They have been sentenced to pay a fine of Rs. 20/- each. Their revision petition to the: Sessions Judge, Tripura, failed, so they have come in revision to this Court.
2. The material facts giving rise to this revision petition are these: The Superintendent of Police, Trip
Excerpt:
.....- sessions judge, tripura, failed, so they have come in revision to this court. , district superintendent of police, tripura district, am satisfied that it is intended by persons to convene or collect an assembly on a public road and to form a procession in the public streets or thoroughfares at agartala. it is perfectly clear that the purpose of the notice by requiring any person intending to take out a procession along the public streets or thoroughfares at agartala between 8-4-60 and 7-7-60 to make application for a license at least 3 days prior to the taking out of the procession setting out therein the particulars mentioned in the notice, was to regulate and control processions. that being so, under no stretch of imagination can it be said that the notice issued by the..........to submit to him an application at least 3 days before any date that might be fixed for such assembly or procession.3. on 30-5-60, at about 4-00 p. m. the petitioners shrl aghore chandra deb barma, dwijen dey, sudhanya deb barma, sushil kumar chanda, durgapada sikdar, kartik chandra deb barma and sital rudra pal, directed a procession consisting of about 1000 persons including mostly tribal people, a few muslims, and refugees carrying communist flags and shouting slogans -- 'we demand the release of fasting prisoners' -- 'we demand the release of comrade mohan choudhury' -- go ahead with the civil disobedience movement' -- 'put a stop to police lulum' etc. the procession was coming from the south along the agartala bishalgarh road and proceeding northwards towards the town of.....
Judgment:

Rajvi Roop Singh, J.C.

1. This is an application in revision under Section 439 Cr.P.C. by Shri Aghora Chandra Deb Barma and 6 others against their conviction under Section 32 of the Police Act by the S. D. M., Sadar, Tripura, They have been sentenced to pay a fine of Rs. 20/- each. Their revision petition to the: Sessions Judge, Tripura, failed, so they have come in revision to this Court.

2. The material facts giving rise to this revision petition are these: The Superintendent of Police, Tripura, Issued a notification under Section 30(2) of the Police Act on 4-4-60, requiring any person intending, during the period from 8th April to 7th July, I960, to convene or collect an assembly on a public road and to form a pro- cession In the public streets at Agartala, to submit to him an application at least 3 days before any date that might be fixed for such assembly or procession.

3. On 30-5-60, at about 4-00 p. m. the petitioners Shrl Aghore Chandra Deb Barma, Dwijen Dey, Sudhanya Deb Barma, Sushil Kumar Chanda, Durgapada Sikdar, Kartik Chandra Deb Barma and Sital Rudra Pal, directed a procession consisting of about 1000 persons Including mostly tribal people, a few muslims, and refugees carrying communist flags and shouting slogans -- 'We demand the release of fasting prisoners' -- 'We demand the release of comrade Mohan Choudhury' -- Go ahead with the civil disobedience movement' -- 'Put a stop to police lulum' etc. The procession was coming from the south along the Agartala Bishalgarh road and proceeding northwards towards the town of Agartala. P. W. 2, A. S. I. Chunilal Bardhan Roy of Kotwali P. S., who was on mobile patrol duty challenged the procession near the Carmichael Bridge. He asked the leaders of the procession as to whether they had any license for taking out the procession into the town; but he was informed that the processionists have no license and that they would conduct the procession without any license. Thereafter the accused-petitioners led the procession by uttering slogans via Battaia along Hark ganga Basak road towards east into the town.

4. The Police filed a report to the S. D. M., Agartala, for the prosecution of the petitioners under Section 32 of the Police Act for the offence of taking out the procession on the streets of Agartala without obtaining any license from the Superintendent of Police.

5. The learned S. D. M. took cognizance of the case and summoned the accused petitioners. On the substance of the accusation being explained to them, they pleaded not guilty, and took the plea that no offence was committed by taking out the procession which was a peaceful one.

6. The prosecution, in order to bring home the offence to the accused petitioners beyond reasonable doubt examined as many as 7 witnesses. The accused petitioners led no evidence in their defence.

7. The learned Magistrate after discussing and weighing, in meticulous details, the evidence of the P. Ws. held that it had been established beyond reasonable doubt that the accused petitioners were the organisers of the procession in question, and therefore, they had committed an offence under Section 32 of the Police Act by taking cut the procession without any license. He therefore convicted and sentenced them as mentioned above.

8. Thereupon, they went in revision to the Court of Sessions Judge, but he finding the case not fit for reference rejected the petition and hence, they have come to this Court in revision.

9. The learned Counsel for the petitioners vehemently contended that the accused petitioners had committed no offence by taking out a procession without a licence in spite of the notice Ext. P-1 dated 4-4-60, issued by the Superintendent of Police, Tripura. He argued in the first place that Section 30 of the Police Act, simply provides for regulation of public assemblies and procession and the licensing of the same as would appear from marginal note of the Section itself and that the Superintendent of Police, has not been given any power to bare or forbid taking out of any procession. In the instant case, the note Ext. P-1 issued by the Superintendent of Police, requiring license being applied for during the period between 8-4-60 and 7-7-60, amounts to an absolute banning of the procession during that period and as such is illegal. In support of his argument, he relied on the decision in Saraibula Dewan v. State : AIR1962Pat244 wherein, it has been held 'that Sub-Sectioin (1) of Section 30 gives the Police power to control and regulate processions; but the Police have no power thereunder to forbid or to ban the procession. The power to control does not include the power to forbid.

This ruling has no application to the facts of the present case. The above ruling was given in a case where the Police purporting to act under Section 30(1), issued a promulgation banning processions etc. But here in this case the notice Ext. P-2, issued by the Superintendent of Police, Tripura, dated 44-60, is to the following effect:

Whereas, I Shri H. N. Sarkar, I. P. S., District Superintendent of Police, Tripura District, am satisfied that it is intended by persons to convene or collect an assembly on a public road and to form a procession in the public streets or thoroughfares at Agartala. And whereas, in the judgment of the District Magistrate such assembly or procession, if held during the period from 8th April, 1960 to 7th July, 1960 and if uncontrolled, would be likely to cause a breach of peace.

Now, therefore, in exercise of the power conferred by Sub-Section (2) of Section 30 of the Police Act, 1861 (Act V of 1861), i do hereby require any such persons to submit to me at least 3 days before any date that may be fixed for such assembly or procession, an application for a license and to state therein the reasons for such assembly and procession, the times of such assembly and procession, the place at which such assembly will meet or from which such procession will start, the route by which such procession will pass and the number of persons, who are likely to attend such assembly or to take part in such procession, together with all other details required to be included in such license.

From the above notification, it is clear that It was issued under Sub-Section (2) of Section 30 of the Police Act. Besides that the above note contains nothing to show that the Superintendent of Police, meant to forbid or ban absolutely any procession. It is perfectly clear that the purpose of the notice by requiring any person Intending to take out a procession along the public streets or thoroughfares at Agartala between 8-4-60 and 7-7-60 to make application for a license at least 3 days prior to the taking out of the procession setting out therein the particulars mentioned in the notice, was to regulate and control processions. That being so, under no stretch of Imagination can it be said that the notice issued by the Superintendent of Police contained anything in excess of the powers given to him under Section 30(2) of the Police Act, Moreover, the recital of facts in notice shows that the Superintendent of Police was satisfied to the effect that certain persons were intending to take out a procession in the public streets at Agartala and that thereafter he took the opinion of the District Magistrate who was of the opinion that such procession might cause breach of the peace. The notice, therefore, satisfied all the requirements of Section 30(2) and it cannot be said to be in any way illegal.

10-11. It was next contended on behalf of the petitioners that the Superintendent is not authorised to Issue a general order, but he must call upon the convener or promoter of the assembly or procession to take out a license for each occasion.

12. The Govt. Advocate, to controvert this argument urged that the notice may be general or special and this depends upon the circumstances of the case. Where the names and addresses of the persons intending to convene an assembly or promote a procession are known, it will be more appropriate to issue a special notice, but where the persons intending to convene an assembly or promote a procession being to a class of persons, upon everyone of whom it may not be practicable to serve a special notice, or where it is likely that a particular individual Intending to collect an assembly or promote a procession is likely to evade the notice, a general notice may be issued. There does not appear any substance in the argument of the learned Counsel for the petitioners. In my opinion, the words are sufficiently general to enable the Superintendent of Police to issue a general notification containing prohibition against convening or collecting assemblies or directing or promoting processions without license. The terms of the section are also wide enough to cover a prohibition without any limit of time. If the person or persons against whom the notice is directed convenes or collects an assembly or promotes or directs a procession without license, he or they will be punishable under Section 32 of the Act.

13. The learned Advocate for the petitioners further contended that a notification 30 of the Act, issued by the Superintendent of Police, cannot be regarded as the 'law' for any purpose as there is no provision in that Act giving such a notification the same effect as if they were contained in an Act. The question whether a notification under Section 30 can be regarded as law or not is not free from doubt. Mullick and Coutts, JJ., in the Full Bench case of Emperor v. Abdul Hamid AIR 1923 Pat 1 answered the question in the affirmative while Das J. dissented and held that the notification under Section 30 cannot by regarded as law. But in the view taken by the majority Judges, i too feel that 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 within the body of the statute at the time of its enactment. The command is in every respect a command by the appropriate legislative authority. In the present case, the notification Ex, P-I was in compliance with Section 30 Sub-Section (2) of the Police Act, therefore it was a law and certainly a legal process.

14. The learned Counsel for the petitioners next urged that the knowledge of the order is a necessary ingredient of offence punishable under Section 32 of the Police Act, and also under Section 188 I. P, C. in the present case, there is not the slightest evidence on the record to infer that the petitioners had any knowledge of this notification alleged to have been issued by the Superintendent of Police on 44-60. He also pointed out that in the Judgment of the learned Magistrate there being no clear finding that any of the accused petitioners had knowledge of the order, the disobedience of which is charged against them, their conviction cannot be sustained. There is force in the first part of the argument of the learned Advocate. In order to bring the offence within the mischief of Section 32, Police Act, It is essential for the prosecution to prove that the accused had the knowledge of the order. But in the instant case whether the petitioners dad the knowledge of the order or not can be judged by the evidence on the record. A perusal of the judgment of the learned Magistrate clearly shows that he has given a finding to that effect that the petitioners had the knowledge of the notification. Besides that from the testimony of P. W. 2 Chunilal Bardhan Roy, P. W. 1 Kshitish Chandra Dutta and P. W. 4 Rathindra Chandra Rakshit, it is clear that the notice was duly served by proclamation and beat of drum, and by getting published in the local Newspaper. Therefore, in the light of this fact, it cannot be presumed that the petitioners had no knowledge of this notification. Lastly, the learned Counsel for the petitioners contended that persons can only bet properly convicted under Section 32 of the Police Act, If It Is established that they were directors or promoters of a procession and were as such under an obligation to apply for a license for it, If they were merely ordinary members of the procession, Section 30(2) does not apply to them. The mere fact that they were at the head of the procession is not enough. In the present case, there is no evidence on the record to show that the petitioners were either directing or promoting the procession, and as such they cannot be held guilty for taking out a procession without a license. I agree with the learned Counsel to the extant that to be an ordinary member of the procession, or at the head of the procession is no offence under Section 30(2) in order to bring an offence within the ambit of Section 30(2), the prosecution must prove that the accused was directing or promoting the procession. In the present case the prosecution, in order to prove this fact, has examined P. W. 2 Chunilal and P. W. 4 R. C. Rakshit. P. W. 2 Chunilal Bardhan Roy and P.W. 4 Rathindra Chandra Rakshit who in their statements have specifically named the accused petitioners as the persons who were directing the procession. The testimony of these witnesses has not teen challenged on behalf of the defence in any way, by way of cross-examination or otherwise. It cannot therefore be said that the petitioners were not directing the procession. The petitioners being persons directing or promoting the procession were required to apply for a license under Section 30(2) of the Police Act. They are, therefore, liable to be held guilty under Section 32 for taking out procession without a license in contravention of the notice issued under Section 30(2) of the said Act.

15. No other point was pressed on behalf of the petitioners.

16. In view of my foregoing discussions, i am con- strained to hold that there is no force in this revision petition and hence it is hereby dismissed.


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