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Prabhat Malla Barooah Vs. D.C. and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantPrabhat Malla Barooah
RespondentD.C. and ors.
Excerpt:
- - in the matter of the commission of a cognizable offence under the indian penal code, it is the informant who sets the law in motion, and if the police is satisfied that a cognizable offence has been committed, it proceeds to arrest the accused person. of the police station will proceed to investigate the case, and if satisfied upon the completion of in......is (2) are of considerable significance. section is (2), criminal law amendment act defines an 'unlawful association:'an 'unlawful association' means an association . (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such actes, or (b) which has been declared to be unlawful by the provincial government under the powers hereby conferred;the powers hereby conferred are stated in section 16 which is in these terms:if the provincial government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the provincial government may, by notification in the official.....
Judgment:

Thadani, C.J.

1. This is an application for a writ of Habeas Corpus under the provisions of Article 236, Constitution of India, in a case in which the petitioner, Prabhat Malla Barooah, is being prosecuted under Section 17(1), Criminal Law Amendment Act (Act 14 of 1908), in the Court of a Magistrate at Nalbari. Mr. Barua for the petitioner demands the release of the petitioner on the following grounds: (1) That the petitioner, after his arrest by the Police, was not produced before a Court, but before a Magistrate who was not then sitting as a Court. (2) That the petitioner was produced before a Magistrate only on the occasion of the first remand, but not on any subsequent occasion. (3) That Sections 15 and 16, Criminal Law Amendment Act offend the fundamental right guaranteed by Article 19(1)(c), Constitution of India, and are, therefore, void; that in any case, the provisions of Sections 15 and 16, Criminal Law Amendment Act, are not reasonable restrictions on the exercise of the right conferred by Clause (c) of Article 19, Constitution of India.

2. There is no substance in the first two contentions. It is not disputed by Mr. Barua that the Magistrate before whom the petitioner was produced for the purposes of a remand, did pass an order of remand. An order of remand can only be passed by a Magistrate sitting as a Court. It is immaterial where such a Magistrate was sitting at the time of the passing of the order. Neither Article 22, Constitution of India, nor Section 167, Criminal P.C. requires the production of an accused person before a Magistrate on the occasion of a subsequent remand.

3. In regard to the third contention, Mr. Barua has relied upon the F.B. decision of the Madras High Court, V.G. Row v. State of Madras : AIR1951Mad147 which has taken the view that Sections 15 and 16, Criminal Law Amendment Act, offend the fundamental right given by Article 19(1)(c), Constitution of India. The case before the learned Judges of the Madras High Court was a case under the Criminal Law Amendment Act, 1908, as amended by the Madras Legislature. With all respect, any observations made by the learned Judges on the question of the validity or otherwise of the provisions of the un.amended Act, can only be regarded as obiter dicta. The State of Assam has not amended the Criminal Law Amendment Act of 1908 (Act 14 of 1908). The case before me is one under the Criminal Law Amendment Act itself.

4. Mr. Barua for the petitioner conceded that the Criminal Law Amendment Act is punitive enactment, dealing as it does with a punishable offence. It is manifest that when an offence is alleged to have been committed and the offender has to be tried, some agency must be empowered to set the law in motion. In an ordinary cognizable offence, the agency is the Police which acts upon information received. The power to set the law in motion in respect of an offence punishable under Section 17(1), Criminal Law Amendment Act, is conferred upon a Provincial Government a power which it exercises in the form of a declaration made under Section 16. An offence punishable under Section 17(1) is a cognizable offence. Until a declaration is made by the Provincial Government under Section 16 of the Act, the Police cannot arrest the offender without a warrant. In other words, the effect of a declaration under Section 16 is to enable the Police to investigate a cognizable offence punishable under Section 17.

5. The learned Judges of the Madras High Court have characterized the declaration under Section 16 as arbitrary and naked because in their view, it is not justifiable. With all respect, I am unable to share this view. The words 'powers hereby conferred' in Clause (b) of Section is (2) are of considerable significance. Section is (2), Criminal Law Amendment Act defines an 'unlawful association:'

An 'unlawful association' means an association . (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such actes, or (b) which has been declared to be unlawful by the Provincial Government under the powers hereby conferred;

the powers hereby conferred are stated in Section 16 which is in these terms:

If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may, by notification in the Official Gazette, declare such association to be unlawful.

As I have said, some agency must be empowered to set the law in motion. In the matter of the commission of a cognizable offence under the Indian Penal Code, it is the informant who sets the law in motion, and if the Police is satisfied that a cognizable offence has been committed, it proceeds to arrest the accused person. Under the Criminal Law Amendment Act, instead of an in formant setting the law in motion it is the Provincial Govt. which sets the law in motion by making a declaration under Section 16. Without such a declaration, a Police Officer will not be in a position to arrest a person alleged to be a member of an unlawful association.

6. The subject of unlawful assemblies, as distinguished from unlawful associations under the Criminal Law Amendment Act, is dealt with in the Indian Penal Code beginning with Section 141. Membership of an unlawful assembly as defined in Section 141, Penal Code, is made punishable under Section 143, Penal Code. An offence punishable under Section 143, Penal Code, is a cognizable offence and if the Police is informed that a particular person is a member of an unlawful assembly, the O.C. of the Police Station will proceed to investigate the case, and if satisfied upon the completion of in.ventilation that he has committed an offence under Section 143, Penal Code will send him up for trial. Under the Criminal Law Amendment Act, a Police Officer, having regard to the provisions of Section 5, Criminal P.C., can only arrest a member of an unlawful association provided he has before him a declaration of the Provincial Government made under Section 16. It seems to me, then that the declaration made under Section 16, Criminal Law Amendment Act, stands on the same footing as an information of a cognizable offence under the Indian Penal Code.

7. Viewed in this light, can it be said that when the Provincial Government declares an association to be unlawful, the declaration deprives an accused person of his right to prove that the association is not an unlawful association, and that in any case, ho is not a member of such an association. It seems to me that the declaration contemplated by Section 16, Criminal Law Amendment Act is, on the contrary, a safeguard provided for the benefit of persons who are sought to be prosecuted under Section 17(1) of the Act.

8. It was not suggested by Mr. Barua for the petitioner that at the trial the petitioner would be debarred from proving that he was not a member of an association declared to be unlawful by the Provincial Government. His contention was that the declaration itself was not liable to be challenged. But it is manifest that if the declaration made under Section 16 serves no other purpose than an information given in a cognizable offence, it is open to an accused person to prove that the facts upon which the declaration is based, are not true, even as it is open to an accused person to prove that the facts upon which the information of a cognizable offence is based are not true. In ray opinion, it would be open to an accused person prosecuted under Section 17(1), Criminal Law Amendment Act to prove that the, association does not interfere or has for its object interference with the administration of the law or with the maintenance of law and order, and that it does not constitute a danger to the public peace. Section 15(2)(b) must be read with Section 16, Criminal Law Amendment Act. Section 16 does not impose any restrictions; it merely lays down the requirements of a valid declaration. Far from imposing restrictions on a citizen's right given by Article 19(1)(c), it restricts the power of the Provincial Government in the matter of making a declaration under Section 16, by laying down certain requirements for a valid declaration - requirements which, in my opinion, are justifiable. Assuming that the requirements of a valid declaration under Section 16 can be regarded as restrictions on the right of a citizen to form an association, I am unable to regard them as unreasonable. I scarcely think that a restriction on the right of a citizen to desist from interfering with the administration of law or with the maintenance of law, can be characterized as unreasonable. Manifestly it is reasonable, for instance, to prevent a citizen from forming an association for the purpose of waylaying witnesses on their way to a Court of law, by declaring him a member of an unlawful association.

9. In the result, I am unable to hold that the provisions of Sections 15 and 16, Criminal Law Amendment Act of 1908 (Act XIV [14] of 1908) offend the fundamental right guaranteed by Article 19(1)(c), Constitution of India. The petition is dismissed. The Rule is discharged.


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