1. This is an application in revision against the conviction of the three accused under Rule 120(A) of the Defence of India Rules, 1939, by the Presidency Magistrate, 6th Court, Mazagaon, Bombay. The facts leading to the prosecution of the accused are contained in the statement of Police Inspector Kilbourne of Gamdevi Police Station. On March 1, 1943, a printed handbill (exhibit a) was brought to his notice, purporting to have emanated from the Bombay Provincial Congress Committee and announcing that public prayers would be held on the Chaupati sands at 7 p.m. on March 2, 1943, which was the last day of Mr. Gandhi's fast. It requested men, women and children to attend that meeting in thousands. No permission of the Commissioner of Police had been taken for holding such a meeting as required by a notification issued by Government under Rule 56(1) of the Defence of India Rules. That sub-rule empowers the Central Government or the Provincial Government for the purpose of securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, by general or special order, to prohibit, restrict or impose conditions upon, the holding of or taking part in public processions, meetings or assemblies, Under that sub-rule Government of Bombay promulgated an order, G.D.V. 102 dated August 9, 1942, to the effect that no public procession, meeting or assembly should be held in any place in the Province of Bombay except with the previous permission in writing of the District Magistrate of the district concerned or the Commissioner of Police, Bombay, as the case might be, and it also provided that no person should take part in any procession, meeting or assembly in respect of which such permission had not been obtained. Sub-rule (4) of Rule 56 makes it penal to contravene any order made under sub-r. (I), and sub-r. (3) empowers any police officer to take such steps and use such force as may be reasonably necessary for securing compliance with any order made under the rule. When, therefore, Inspector Kilbourne saw the handbill, he proceeded to the Chaupati sands at about 6 p.m. on March 2, 1943, with several other officers and constables from his police-station in order to prevent the holding of the contemplated meeting in contravention of the order issued by Government. At about 6.30 p.m. he saw that a large number of women were squatting on the sands shouting slogans and attempting to hold a prayer meeting as announced in the hand-bill. He arrested sixty-two of them and forwarded them to the police-station. Shortly afterwards some boys met there to hold a meeting near the Tilak statue. The Inspector had them dispersed. He arrested four of those) boys and sent them to the police-station. He found that there was a good deal of excitement at that time and, therefore, decided to clear a portion of the sands within a radius of seventy yards from the statue. He issued orders to that effect to his subordinates and had the sands almost completely cleared in that area. Police Sub-Inspector Agha, who was acting under; the orders of the Inspector, says that when he was engaged in clearing the sands, as directed by the Inspector, he came across accused No. 2 and told him to get away. Accused No. 2 did not listen to him and started arguing with him. He, therefore, took him to Inspector Kilbourne. The Inspector advised him not to create any disturbance but to go away quietly. But he continued to argue with him and refused to leave the place, contending that the police had no right to remove him from the sands. Inspector Kilbourne told him that if he did not obey his order he would be compelled to arrest him, and when accused No. 2 still persisted in remaining there, he was arrested and sent to the police-station. Five minutes thereafter accused Nos. 1 and 3 were seen at a; distance of ten or twelve yards from them, and as people were collecting there, Inspector Kilbourne went up to them and asked them to, move on. They also questioned his right to remove them from the sands, and as they refused to leave the place and maintained that they had a right to be on the sands, they were arrested. A charge-sheet was then sent up against all the three accused and they were tried on the charge of interfering with the police-officers performing the duty of securing public safety and maintaining public order imposed on them in pursuance of Rule 56(3) of the Defence of India Rules, and were convicted under Rule 120(6) of the Defence of India Rules.
2. A preliminary legal objection is urged against the trial on the ground that the learned Magistrate was wrong in taking cognizance of the offence without a report in writing made by a public servant as required by Rule 130(1) of the Defence of India Rules. That sub-rule provides that no Court shall take cognizance of any alleged contravention of the rules except on a repoit in writing of the facts constituting such contravention made by a public servant. It Is true that there is no separate complaint or report made to the learned Magistrate by the Police Inspector, but the prosecution was started on a charge-sheet sent by him. In that charge-sheet, which was signed by him, he mentioned the names of the three accused and alleged that 'they at Bombay on the 2nd day of March 1943 did interfere with the Police Officers performing their duties in maintaining peace and order at Chaupaty,and thereby committed an offence punishable under Rule 120(b) of the Defence of India Rules'. Thus this charge-sheet set out the facts constituting the contravention of the Defence of India Rules committed by the accused and can be regarded as the Police Inspector's report made to the Magistrate in writing. It is argued that the charge-sheet does not specifically state what were the duties in performing which the police-officers were then engaged, nor does it recite that they were clearing the sands in order to prevent an unauthorised meeting being held. We do not think that it was necessary for the Inspector to set out all the details in the report which he was required to make under Rule 130(1) of the Defence of India Rules before the Magistrate could take cognizance of the offence. The report sufficiently gave an idea of the offence for which the accused were to be tried and the learned Magistrate was justified in taking cognizance of that offence.
3. It is next contended that in this case there was no first information report and that the Police Inspector was bound to record the first information in writing and sign it as required by Section 57 of the City of Bombay Police Aft, 1902. That section requires the police-officer in charge of the section on receiving any information relating to the commission within his section of any cognizable offence to forthwith reduce into writing the statement made by the informant, and to take the signature of the informant who made that statement. But in the present case there was no informant as such, as the alleged offence was committed in the presence of the investigating officer himself. The Inspector was, therefore, not bound to take down in writing any information relating to the commission of the offence, since he had the information himself. In fact the Inspector says that he did enter the facts regarding the offence in the station diary. It is argued that in the absence of the first information report under Section 57 of the City of Bombay Police Act the accused were handicapped in cross-examining the witnesses. There is no reason to assume that there was any such handicap to the accused. If they wanted to know what was the case of the Police Inspector at the earliest stage of the investigation, the accused might have requested the Court to look into the station diary. But anyhow as the Police Inspector was not bound to write his own statement and sign it under Section 57 of the City of Bombay Police Act, the trial is not vitiated.
4. The more important question is whether the police-officers were engaged in exercising any powers or performing any duties conferred or imposed upon them by the Defence of India Rules and whether the accused voluntarily obstructed or offered any resistance to or interfered with them in doing so. Rule 120(b) of the Defence of India Rules makes it an offence to interfere with any officer exercising any powers or performing any duties conferred or imposed upon him by on in pursuance of the Defence of India Rules. The case for the prosecution is that Inspector Kilbourne and his subordinates had a right to take such steps and use such force as might be reasonably necessary for securing compliance with the order of the Bombay Government prohibiting the holding of meetings without the previous permission of the Police Commissioner. The police-officers were, therefore, justified in dispersing the first meeting and arresting sixty-two persons who were among those that held that meeting. Similarly they were justified in arresting four of the boys who with others were attempting to hold a meeting. But the question is whether Inspector Kilbourne was justified in ordering that an area within a radius of sixty to seventy yards from the Tilak statue should be completely cleared of all persons, whether such persons intended to hold a meeting or to attend or take part in any such meeting or not. It is not clear from the evidence what order had been issued by Inspector Kilbourne. He himself says that he decided to clear a portion of the sands within a radius of seventy yards from the Tilak statue, whereas Sub-Inspector Agha definitely says that he was given orders to clear the people from the entire area of the sands. It is admitted that the area within seventy yards from the statue included a portion of the footpath near the sands. Thus according to Inspector Kilbourne a portion of the footpath also was to be cleared, while according to Sub-Inspector Agha the footpath was not to be cleared of the persons who were going along it, but only the entire area of the sands had to be cleared.
5. Accused No. 1 says that at about 7.10 p.m. on that day he left his house situated behind Wilson College Hostel with his brother accused No. 2 and met his maternal uncle's son Mahendra, the brother of accused No. 3, on Chaupati footpath. Proceeding further they met accused No. 3 at the junction of Sandhurst Road and Chaupati Road. Accused No. 3 was then going from the Churchgate side. After some time accused No. 2 walked away a few paces and in the meantime Sub-Inspector Agha approached them and abused Mahendra. Accused No. 1 remonstrated with him, and when this was going on Inspector Kilbourne arrived and the matter was referred to him. But the Inspector refused to listen to him and ordered him to move away from the footpath. When he refused and requested him to give him a hearing, he was arrested. Accused No. 2 says that seeing some acquaintance sitting on one of the benches on the footpath, he went up to him, and when he was talking with him, Sub-Inspector Agha asked him to clear away. He told the Sub-Inspector that he was standing on the footpath and there was no necessity for his going away. But the Sub-Inspector paid no heed to him and took him to Inspector Kilbourne who without giving any hearing to him asked him to go to the police-station and lodge a complaint there. He willingly accompanied a police constable to Gamdevi Police Station and asked to be shown to the Police Superintendent, but he was told that he was under arrest. Accused No. 3 also supports this story and says that when he met accused Nos. 1 and 2 and his brother Mahendra at the junction of Sandhurst Road and Chaupati Road when he was going from Churchgate side along the footpath, Sub-Inspector Agha abused Mahendra and when they remonstrated they were arrested.
6. It is not quite clear from the evidence as to the exact place where accused Nos. 1 and 3 were arrested. As regards accused No. 2, he was admittedly going along the footpath, and as he refused to move away, he was taken to the Inspector and was arrested. Agha himself admits that he arrested accused No. 2 at a distance of about eight or ten yards from the footpath and far away from the Tilak statue. His case apparently was that he had been ordered to clear the entire area of the Chaupati sands, and although accused No. 2 was far away from the Tilak statue, he was entitled to ask him to get away even though the place where he was standing was more than seventy yards distant from the statue. But the Inspector definitely says that he had issued an order that only a portion of the sands within a radius of seventy yards from the statue should be cleared. Although Sub-Inspector Agha says that accused No. 2 was standing towards the Chaupati side on the sands and not towards the Mafatlal Swimming Bath, the Inspector says that he was towards the Mafatlal Swimming Bath side of the statue. According to accused No. 2 he was on the Chaupati side of the statue as deposed to by the Inspector. Thus it appears that Sub-Inspector Agha had no clear idea about the orders issued by the Inspector, nor is it clear where he arrested accused No. 2j Inspector Kilbourne definitely says that he was then about twenty yards from the footpath on the sands at the junction of Sandhurst Road and Chaupati Road. He does not say that the place was within seventy yards of the statue. On the other hand accused No. 2 has stated in his statement that he was at a distance of one hundred and fifty yards from the statue. It is now stated in this Court that the nearest point at the junction of Sandhurst Road and Chaupati Road is one hundred and fifteen yards from the statue. It thus appears that accused No. 2 did not infringe any of the orders issued by the Inspector about the clearing of the sands within a radius of seventy yards from the statue. Accused Nos. 1 and 3 were also about the same place near the junction of Sandhurst Road and Chaupati Road. Inspector Kilbourne tries to make out that they were on the sands near the footpath. Sub-Inspector Agha definitely says in two places that both of them were on the footpath when they were arrested by Inspector Kilbourne. He does say that he does not know the circumstances under which they were arrested, but definitely asserts that both accused Nos. 1 and 3 were then on the footpath. Perhaps that was the reason why he himself did not arrest them since he was under the impression that the Inspector's orders were to clear the sands and not the footpath, though according to the Inspector even the footpath falling within seventy yards of the statue had to be cleared. Thus it appears from the conflicting evidence of the Inspector and the Sub-Inspector that when the accused were arrested they were not within seventy yards of the statue and cannot, therefore, be said to have voluntarily obstructed or offered any resistance to or impeded or otherwise interfered with the orders issued by the Inspector.
7. Moreover the Inspector went beyond his powers in issuing such general orders to clear the entire sands or a portion of the sands of all persons. Under Rule 56(3) of the Defence of India Rules he could take such steps or use such force as might be reasonably necessary for securing compliance with the order of Government regarding the holding of meetings, and if he had any reasonable grounds to believe that the accused intended to hold a meeting or to take part in any meeting, he would have been justified in asking them to move away. When the accused were arrested, admittedly the sands had been completely cleared of all persons. Inspector Kilbourne says that at that time there were no passers-by on the footpath and it was only after the discussion between the police and the accused started that the people began to gather. But those people were evidently curious idlers who had no intention of holding a meeting in contravention of the Government order. Rule 56(30 of the Defence of India Rules does not give such wide powers to the police-officers as to enable them to close a road wholesale and prevent innocent passers-byfrom making legitimate use of it. If it be thought necessary that any road should be thus closed, a proper order should have been obtained from the Police Commissioner under the Bombay City Police Act. But such a wide power is not conferred upon the Inspector or his subordinates. It is true that if a suspicion was entertained that certain persons were gathering with the intention of holding an unlawful meeting or that any persons were going to take part in such a meeting they could be dispersed by any police-officer. There is, however, no such allegation against any of the three accused. On the other hand Inspector Kilbourne admits in his cross-examination that he did not see accused No. 1 asking people to collect round him. The learned Government Pleader refers to a statement in his examination-in-chief that people began to collect. That does not mean that they were collecting at the instance of the accused or that the accused were responsible for the collection of the crowd.
8. The charge does not refer to the order said to have been issued by the Police Inspector. It vaguely says that the accused interfered with the police-officers performing their duties of securing public safety and maintaining public order imposed on them in pursuance of Rule 56(3) of the Defence of India Rules. The expression ' securing public safety and maintaining public order' is evidently taken from the preamble contained in Rule 56(1). But as pointed out in Emperor v. Shankar Papayya : (1943)45BOMLR310 , that preamble is only relevant on the question of the validity of an order issued under it. If it could be proved that the purpose of Government in framing the order was not such as is indicated in the rule, then the order would be bad ; but once the order has been promulgated, its construction must depend upon the language in which it is framed, and the preamble to Rule 56 has nothing, to do with the construction of the order. The charge should, therefore, have referred to the order issued by the Police Inspector for the purpose of enforcing the order of the Government of Bombay with regard to the holding of meetings. In that case it would have been necessary for the learned Magistrate to consider whether the accused intended to commit a breach of that order. But the learned Magistrate considers that question to be irrelevant and has not directed his mind to it. He says in the course of his judgment :
For the purpose of the charge in this case it is not necessary for the prosecution to prove that all these accused had either participated or had intention to participate in the unauthorised prayer meeting. It is also not necessary for the prosecution that these accused had intended to hold an unauthorised prayer meeting or any other meeting after the meeting of the women was dispersed.
9. Thus he misses the very point which the prosecution ought to have proved. If the accused had no intention of holding an unauthorised meeting or parti cipating in any unauthorised meeting, they could not be said to have contravened or intended to contravene any order passed under Rule 56(2), and in that case there was no occasion for any police-officer to take action against them under Rule 56(5) of the Defence of India Rules. It is not alleged nor can it be said on the evidence that any of the accused had any such intention and, therefore, the police-officers went beyond the powers conferred on them by Rule 56(5) in asking them to disperse. It would have been different if the Inspector or the Sub-Inspector had said that they had reasons to believe that the accused were going to hold an unauthorised meeting or going to take part in it. In the absence of such an allegation their arrest was not right and they were not bound to leave the place as ordered by the Inspector or the Sub-Inspector. It cannot, therefore, be said that they in any way voluntarily obstructed or offered resistance to or impeded or otherwise interfered with the police-officers in the performance of their duties in exercise of the powers conferred upon them by the rules.
10. The rule must, therefore, be made absolute. The convictions of the applicants and the sentences passed on them are set aside and they are acquitted. The fines, if recovered, should be refunded to them.