1. The applicants were convicted by the First Class Magistrate, Karwar Town, of offences under Sections 188 and 145, Indian Penal Code, and sentenced to six months' rigorous imprisonment for each offence, the sentences to run concurrently. The applicants preferred an appeal to the Sessions Judge, Kanara, against their convictions and sentences. The Sessions Judge set aside the convictions and sentences under Section 188, Indian Penal Code, but confirmed the convictions and sentences under Section 145, Indian Penal Code, and reduced sentences of several of them. The applicants have applied in revision against the order of the Sessions Judge.
2. The prosecution against the applicants arose out of a notification promulgated on November 5, 1930, by the Sub-Divisional Magistrate, Sirsi Prant, under Section 42 of the Bombay District Police Act. The Magistrate prohibited in the Municipal area of Honavar for a period of fourteen days from the date of the notification the public utterances of cries, singing of songs, playing of music, delivery of harangues and use of gesture or mimetic representation etc. which might inflame hostility between different classes or incite to the commission of an offence, to any disturbance of the public peace, or to resistance to or contempt of the law or of a lawful authority. This order was duly published by beat of drum and by affixing copies of the notification at important places in the town. The object of the order evidently was to stop certain volunteers of the Indian National Congress from forming processions, singing songs and uttering slogans. On November 6, 1930. after the notification was published, the Congress volunteers declared their intention to defy it by forming a procession of Prabhat Pheris the next day. On the morning of November 7 at about 5 a.m. the accused formed themselves along with others into a procession which started from the Rameshwar temple within the municipal area of Honavar. They shouted political slogans and sang seditious songs. The Sub-Divisional Magistrate, the First Class Magistrate and the Sub-Inspector of Police who were all on the spot explained to the precisionists that what they were doing was a violation of the notification of the Sub-Divisional Magistrate and that they should cease uttering slogans and singing songs. The crowd, however, paid no heed to the advice of these officers and went on singing songs and uttering slogans. The Sub-Divisional Magistrate thereupon declared the assembly to be an unlawful assembly and ordered the crowd to disperse. The crowd refused to disperse and squatted down on the public ground. The Police Sub-Inspector arrested twenty-six persons including the applicants and the assembly was dispersed thereafter by a lathi charge by the police. The applicants were prosecuted before the First Class Magistrate, Karwar Town, who convicted and sentenced them for offences under Sections 188 and 145, Indian Penal Code. It appears that no complaint in writing was made by the Sub-Divisional Magistrate or any officer superior to him with regard to the offence alleged to be committed under Section 188, Indian Penal Code, as required by Section 195 of the Criminal Procedure Code. The Sessions Judge in appeal held that this defect in the procedure vitiated the trial so far as the offence under Section 188, Indian Penal Code, was concerned and acquitted the applicants on that charge.
3. The applicants now contend that the failure to comply with the provisions of Section 195 of the Criminal Procedure Code has vitiated the proceedings not only in respect of the trial for an offence under Section 188, Indian Penal Code, but also in respect of the offence under Section 45, Indian Penal Code. Mr. Murdeshwar on behalf of the applicants has contended that the charge framed in respect of Section 145, Indian Penal Code, did not specify what the common object of the alleged unlawful assembly was and the applicants were not aware what prosecution case on this point they were required to meet. Although the common object of the assembly is not set out in the charge the evidence led at the trial clearly showed what the common object according to the prosecution was. The applicants were well aware that they had formed the procession with the deliberate object of defying the lawful order of the Sub-Divisional Magistrate and that this was the common object of the assembly of which the prosecution complained. No prejudice has accrued, in my opinion, to the accused by the common object of the assembly not having been specified in the charge.
4. The failure to specify the common object in a charge under Section 145, Indian Penal Code, would not be fatal to the trial if it can be shown that there was ample evidence on the record to prove what the common object of the assembly was: see the ruling in Basiraddi v. Queen-Empress I.L.R. (1894) Cal, 827 In Kudrutulla v. Emperor I.L.R. (1912) Cal. 781 where Basiraddi v. Queen-Empress is followed, it is held that an omission to state the common object of an unlawful assembly in a case of rioting under Sections 143 and 147, Indian Penal Code, does not vitiate the conviction if there is evidence on the record to show it. The evidence clearly establishes that the common object of the assembly was disobedience to the order of the Sub-Divisional Magistrate, which disobedience, the assembly must have known, would result or tend to result in a riot or other consequences contemplated by Section 188, Indian Penal Code.
5. It is further contended on behalf of the applicants that the assembly was not as a matter of fact an unlawful one within the meaning of Section 141 of the Indian Penal Code, as no violence was committed by it, and when the police came to arrest the accused they peacefully surrendered. The slogans which the assembly was uttering and the songs it was singing are not shown, it is urged, to have been of a nature which would lead to a breach of the peace. For an assembly of five or more persons to be regarded as an unlawful assembly it would be necessary to show that the common object of the persons composing the assembly would fall within Section 141, Indian Penal Code. Clause (2) of that section speaks of resistance to the execution of any law or legal process. Clause (3) is wide enough to include anything which is an offence under the law. If the commission of any offence is shown to be the common object- of an assembly that would constitute it an unlawful assembly. The conviction of the applicants under Section 145, Indian Penal Code, in my opinion, is correct.
Having regard to the fact that the applicants are all young men and are first offenders, the ends of justice, in my opinion, would be met if we confirm the convictions under Section 145, Indian Penal Code, and reduce the sentence to the period which the accused have already undergone. The bail bonds are cancelled.
6. In this case the accused were convicted by the First Class Magistrate, Karwar Town, under Sections 188 and 145, Indian Penal Code, and were sentenced to six months' rigorous imprisonment under each section, the sentences to run concurrently. On appeal, the Sessions Judge, Kanara, set aside the convictions and sentences under Section 188, Indian Penal Code, and confirmed the convictions under Section 145, Indian Penal Code, reducing the sentences of the accused other than accused No. 1. The accused make this revisional application.
7. The facts are that on November 5, 1930, the Sub-Divisional Magistrate, Sirsi Prant, issued a notification under Section 42 of the Bombay District Police Act prohibiting the singing of songs, the utterances of cries, the playing of music, delivery of harangues, the use of gestures, exhibition or demonstration of pictures, symbols, placards or any other object or thing which may probably inflame hostility between different classes in the town of Honavar, The notification was duly published, but the accused on November 7 insisted on taking out a Prabhat Pheri in spite of it. They refused to disperse when ordered by the Sub-Inspector and the Magistrate. Ultimately they were arrested and the assembly dispersed by force. They were tried by the First Class Magistrate, Karwar, the charges framed against them being knowingly disobeying an order duly promulgated by a public servant, under Section 188, Indian Penal Code, and continuing in an unlawful assembly knowing that such assembly had been commanded in the manner prescribed by law to disperse, under Section 145, Indian Penal Code. The common object of the assembly is not set out in the charge, but presumably it was to disobey the order. It does not appear that there was any doubt as to this offence with which accused are charged, or any prejudice to them. It has been contended by the learned advocate for the applicants that the assembly was not an unlawful one. The convictions under Section 188, Indian Penal Code, were set aside by the Sessions Judge on a technical ground, i.e., that under the ruling in Emperor v. Ganesh Mavlankar (1930) 33 Bom. L.R. 59 the requirements of Section 195 of the Criminal Procedure Code were not abrogated by Section 11 of Ordinance V of 1930, and so the convictions under Section 188, Indian Penal Code, without the previous sanction of the District Magistrate, i.e., the public servant whose order was disobeyed, are invalid. This, however, does not affect the validity of the order itself, and in view of the remarks in Emperor v. Ganesh Mavlankar (p. 73) as to the discretion of the Magistrate, I agree with the Sessions Judge that the order was proper.
8. It has also been contended by the learned Government Pleader that under the ruling in In re Pandurang Shidrao : (1910)12BOMLR1029 , such an order under Section 42 of the Bombay District Police Act is an executive order, and not liable to revision by the High Court.
9. The principal question in the present case is whether the assembly was an unlawful one, The accused have been convicted for remaining in an unlawful assembly after it had been commanded in the manner prescribed by law to disperse, an offence under Section 145, Indian Penal Code. Before there can be a conviction under that section, it must be shown that the assembly was an unlawful one, in other words, that it falle under the definition in Section 141, and the only paragraphs of Section 141 which it is sought to apply are pares 2 and 3. The learned Magistrate held that the object of the assembly falls under Para. 2, as its object was to resist the execution of legal process, a matter I will deal with later. The learned Government Pleader contends that it falls under Para.3, 'to commit any mischief or criminal trespass or other offence.' There is no question of mischief or criminal trespass. The point is whether the disobedience of the order constitutes an offence, It is argued that disobedience of an order under Section 42 of the Bombay District Police Act is punishable under Section 68 of that Act with fine only, and so does not constitute an offence under Section 141, Indian Penal Code, read with Section 40, Indian, Penal Code, which requires that in order to constitute an offence the thing punishable under the special or local law must be punishable with imprisonment for a term of six months or upwards. The prosecution must, therefore, fall back on Section 188, Indian Penal Code, and that section requires that the disobedience to the order of the public servant should cause or tend to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to person lawfully employed, or (2) danger to human life, health or safety, or cause or tend to cause a riot or an affray. The accused were charged under the second Para, of the section, and we have to consider whether the disobedience to the order caused or tended to cause danger to human life, health or safety or a riot or an affray. It is argued for the applicants that no evidence whatever has been given by the prosecution that there was any likelihood of a riot or an affray, and therefore the conditions of Section 188 are not complied with : consequently there can be no offence under that section, and therefore the common object of the assembly was not to commit any offence, and the assembly is not unlawful, and therefore the conviction under Section 188 cannot stand. The learned Government Pleader has referred to the case of Emperor v. Bhalchandra Ranadive : (1929)31BOMLR1151 , but it is argued on behalf of the applicants that evidence was given in that case that the disobedience of the order of the Commissioner of Police was likely to cause a riot as the persons composing the meeting were likely to come into collision with the police, and the Court held accordingly : see pp. 1162 and 1174. In the present case the learned Magistrate held that the acts of the accused were calculated to raise apprehension of a breach of the public peace and thereby to endanger human life and safety. Now, although the Sub-Inspector does not say that there was any danger of a riot, and it appears that the accused simply squatted on the ground and kept on singing and did nothing else, it does appear from his evidence that the police had to disperse them by force and by the use of lathis. There was thus a likelihood of the Prabhat Pheri people coming in collision with the police, and if they had resisted, although they do not appear to have done so, there would have been a riot. The action of the accused thus tended to cause a riot, and the conditions of the latter part of Section 188 are fulfilled. This being so, the common object of the assembly was to commit an offence under the latter part of Section 188. Thus the assembly became unlawful, and remaining in it when it was ordered to disperse constitutes an offence under Section 145, Indian Penal Code. Apart from this, it has been held by the Patna High Court in King-Emperor v. Abdul Hamid I.L.R. (1922) Pat. 134 that disobedience of a notification under the Police Act is resistance to the execution of a legal process, which is one of the objects under Clause (2) of Section 141, Indian Penal Code. It was held by the majority of the bench in that case 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. Such a command is in every respect a command by the proper legislative authority. In the present case if the notification was in compliance with Section 42 of the Bombay District Police Act, it was a law and certainly a legal process. Das J., however, was of a contrary opinion. In any case I am of opinion that the case is covered by the latter part of Section 188, read with Section. 141, Clause (5), and, therefore, the assembly was an unlawful one, and therefore the conviction, under Section 145, Indian Penal Code, should be sustained. But, in the circumstances of the case, the sentences appear too severe. It appears that all the accused have suffered part of their sentences and in most cases have served about three months. I agree that the sentences should be reduced to those they have already undergone.