1. This is a reference by the Learned Sessions Judge, Wardha, for quashing the conviction passed by the Judicial Magistrate, First Class, (Second Court). Wardha, on an accused who was found guilty under Section 26(2) of the Maharashtra Municipalities Act. He is alleged to have behaved in a disorderly manner within the premises of a polling station on the day of the election. On 14-6-1967 there was an election going on in the Municipal Town Hall at Pulgaon. On that day accused No. 1 Shantilal for whom the reference is made and another accused Dwarka Prasad were shouting and behaving in a disorderly manner in the premises of that Polling Station and causing disturbances. The Presiding Officer as well as the Polling Officers who were on duty could not, therefore, continue their work. The Presiding Officer, therefore, reported the matter to the Police Officers there and in consequence thereof, both the accused were arrested and charge-sheeted. Both the accused admitted their presence in the Town Hall but denied having conducted themselves in a disorderly manner. The learned Magistrate who tried both the accused convicted both of them under Section 26 (2) of the Maharashtra Municipalities Act. 1965, and sentenced each of them to pay a fine of Rs. 25 in default, to undergo simple imprisonment for a week. Aggrieved by this decision, the original accused No. 1 filed a revision application in the Court of the Sessions Judge, Wardha. The learned Sessions Judge is of the view that the offences under S. 26 of the Maharashtra Municipalities Act are not cognizable offences at all and that because the offence which is alleged to have been committed by the accused is not a cognizable offence and because there was no complaint by the Chief Officer, therefore, the order of conviction by the trial Court is illegal and improper. It is on the basis of this ground that the learned Sessions Judge has referred the matter here.
2. The learned Government Pleader has opposed this reference contending that the offences under Secion 26 are cognizable offences and, according to him, therefore, the cognizance taken by the learned Magistrate was quite legal and proper. It is in this view, therefore, the order of conviction passed by him is quite legal. On the other hand, the learned advocate for the accused argues here that the offences under Section 26 are not cognizable at all and. therefore, according to him, the order of conviction passed by the learned Magistrate is illegal. We will, therefore, have to examine Section 26 of the Maharashtra Municipalities Act to see what kind of offences it provides.
3. Section 26 of the Maharashtra Municipalities Act is as follows;
'26. (1) No person shall, on the date or dates on which a poll is taken at any polling station,--
(a) use or operate within or at the entrance of the polling station, or in any public or private place in the neighbourhood thereof, any apparatus for amplifying or reproducing the human voice, such as a megaphone or a loud-speaker; or
(b) shout, or otherwise act in a disorderly manner, within or at the entrance of the polling station or in any public or private place in the neighbourhood thereof, so as to cause annoyance to any person visiting the polling station for the poll or so as to interfere with the work of the officer and other persons on duty at the polling station.
(2) Any person who contravenes or fully aids or abets the contravention of, any provision of Sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
(3) if the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under this section, he may direct any police officer to arrest such person, and thereupon the police officer shall arrest him.
(4) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of subsection (1), and may seize any apparatus used for such contravention.'
4. It is, therefore, plain from Section 26(3) that if any person is committing an offence or has committed an offence as mentioned in Section 26, the presiding officer of a polling station could direct a police officer to arrest such a person. The police officer has also a duty under this statute to arrest him on the direction of the presiding officer. In the circumstances such person would, therefore, be arrested by the police officer, without warrant. Now, therefore, if a police officer arrests a person who was committing an offence or who has already committed an offence without warrant, what type of offence could it be said to be?
5. Under Section 4(1)(f) of the Code of Criminal Procedure, 'cognizable offence' means an offence for, and 'cognizable case' means a case in, which a police officer within or without the Presidency-towns, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant. Therefore, if a police officer arrests a person without warrant under any law for the time being in force, then such offence could be said to be a cognizable offence. In so far as the impugned offence with which we are concerned, we have seen that the law laid down in Section 26 (3) of the Maharashtra Municipalities Act is that a police officer can arrest a person committing an offence under Section 26 without warrant at the instance of the presiding officer. The learned Government Pleader, therefore, says that under Section 4(l)(f) of the Criminal Procedure Code, this offence under Section 26 of the Maharashtra Municipalities Act, is a cognizable offence. But the learned advocate for the accused contends here that this is not a case where the police officer arrests the person on his own. Here the police officer does so at the instance of the presiding officer of the polling station. According to him, this difference has to be taken into consideration and because of this difference, he argues, this offence cannot be said to be a cognizable offence. But the statute permits the police officer to arrest the accused without warrant and if the offence is not cognizable, then what has he to do after arresting the person. According to the learned Advocate for the accused, it is very necessary under Section 296 of Maharashtra Municipalities Act that the Chief Officer should start the proceedings against such person. Section 296 is a provision as respects institution, compounding etc. of criminal actions. Subject to the general control of the Council, the Chief Officer may take proceedings against any person who is charged with any offence against the provisions of the Maharashtra Municipalities Act or any rules or by-laws made thereunder. It is. therefore, argued that the Chief Officer has to file a complaint and unless there is a complaint by the Chief Officer, the Court cannot take cognizance of the same. It is, however, difficult for me to accept this contention, for the obvious reason that offences as provided under Section 27 of the Act like offences under Section 26 are also made cognizable. If a police arrests a person who has committed an offence or who is committing an offence or who has committed an offence at the instance of the Presiding Officer what is he to do further? Has he to wait for the complaint of the Chief Officer? I do not think the Legislature has intended that the person should be arrested by the police without warrant and the police officer thereafter has to wait for a complaint to be lodged by the Chief Officer.
6. Once the police officer arrests a person without warrant, under Section 60 of the Criminal Procedure Code, without unnecessary delay and subject to the provisions of the Code of Criminal Procedure he should send the person arrested before a Magistrate having jurisdiction in the case or before the officer-in-charge of the police station. Such a person who is arrested cannot also be detained for more than 24 hours under Section 61 of the Criminal Procedure Code. Such a person who is apprehended cannot also be. discharged under Section 63 of the Code. Surely, therefore, the Legislature could not have intended that the police officer after arresting the person committing an offence under Section 26 of the Maharashtra Municipalities Act should wait in contravention of the provisions of the Criminal Procedure Code for the complaint of the Chief Officer. It appears to me therefore that once the police officer arrests the person committing the offence under Section 26 of the Maharashtra Municipalities Act without warrant, even though at the instance of the presiding officer of a polling station, that arrest being an arrest without warrant as provided in Section 4(1)(f) of the Criminal Procedure Code, should be for the offence which can properly be defined as a cognizable offence.
7. But the learned advocate for the accused argues that under Section 26(4) of the Maharashtra Municipalities Act, any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of Sub-section (1) and may seize any apparatus used for such contravention. According to him, this subsection shows that a police officer has limited duties. But this Sub-section deals only with the prevention of offences and not with the actions against persons who have committed or who are committing such offences. Under Section 305 of the Maharashtra Municipalities Act the powers of the police officers are given: Any police officer may arrest any person committing in his view any offence against any of the provisions of this Act or of any rule or of any by-law made thereunder, and if such person does not give his name and address, then he should be detained at the station-house until his name and address are correctly ascertained. Therefore, under other circumstances also, the police officer could arrest a per-son under the Maharashtra Municipalities Act, it is, therefore, very difficult for me to accept the recommendation of the learned Sessions Judge. The Sessions Judge therefore was in error when he found that the offences alleged to have been committed under Section 26(1)(a) and (b) are not cognizable. He seems to have relied upon Notes of cases in 1949 Nag LJ 45. This was a case, however, under Section 218 of the C. P. Municipalities Act. The facts of our case are governed by the Maharashtra Municipalities Act, 1965. I do not, therefore, think that any decision based on the language of Section 218 of the C. P. Municipalities Act could be good to the facts and circumstances of our case.
8. For the aforesaid reasons, therefore, I do not accept the reference. The order of conviction and sentence passed by the trial Court therefore is confirmed. Record and papers be sent back to the trial Court for further action.
9. Order accordingly.