1. These are 21 applicants who have been convicted Under Section 188, Penal Code and Section 17 (1), Criminal Law Amendment Act, some of whom were sentenced to four months' rigorous imprisonment Under Section 17 (1), Criminal Law Amendment Act and a fine of Es. 50 Under Section 188, Penal Code, while the rest have been sentenced to pay Rs. 50 fine Under Section 17 (1), Criminal Law Amendment Act and to a further fine of RSection 10 Under Section 188, Penal Code.
2. The facta are admitted. The Provincial Government declared the organisation called the Rashtriya Swayam Bewak Sangh (shortly R. S. S.) as an unlawful body under Section 16/16, Criminal Law Amendment Act, The members of the sangh tried for a time to get the ban lifted but thereafter they decided to resume the activities and to offer satyagraha. The satyagraha appears to have been peaceful and an intimation was sent in advance to the District Magistrate, Akola. These applicants along with some others assembled on the Eamdaa Peth play ground at Akola at about 5-30 P. M. Previous to this an order had been promulgated by the Additional District Magistrate Under Section 144, Criminal P.C. banning meeting of more than 5 persons.
3. The persons assembled gave the salute and a prayer and a speech followed Five of the assembled persons were arrested under the C. P and Berar Public Safety Act. These 21 were arrested without warrants and were tried as above and convicted and sentenced. All the applicants except one (Narayan Venkatesh Kale) admitted their presence and participation. Some admitted that they had gone to revive the activities of the Singh. Some stated that the old organisation wag disbanded and this was a new organisation. Some stated that the ban was ultra vires and as regards the order Under Section 144, Criminal P.C., some of the applicants said that they did not know of it, others that they had nothing to say and one (G. D. Chiplunkar) said that it applied only to the Mill area.
4. The facts were not denied before me. It was argued that the prosecution Under Section 188, Penal Code was defective as no complaint of the officer concerned or his superior had been filed in the case as required by Section 195, Criminal P.C. I find, however, that the charge sheet which was filed, was signed by the Additional District Magistrate who promulgated the order Under Section 144, Criminal P.C., as also the District Magistrate. It is true that what the section requires is a complaint and in the definition of a complaint a police report is excluded. All the same the purpose of a complaint Under Section 195, Criminal P.C., is to show that the officer concerned or his superior had considered the matter and had moved the Court. This purpose was served in this case by the. signing of the charge sheet. It would have been better if a separate complaint had been filed but it does not appear that there has been any disregard of Section 195, Criminal P.C. I hold, therefore, that the trial of an offence Under Section 188, Penal Code was with jurisdiction.
5. There is, however, no proof that any untoward consequences would have ensued due to the breach of the order. This is required to be proved Under Section 188, Penal Code. The prosecution led no evidence to prove this and in my opinion the applicants are justified in Bay. ing that there is no proof of any untoward incident as is incumbent to be proved Under Section 188, Penal Code. I cannot take judicial notice of any fact because I do not know the conditions in Berar or Akola. Further this gap cannot be filled up by resort to judicial notice. It is a fact to be proved. As was laid down in Lachhmi Devi v. Emyeror, : AIR1931Cal122 and other cases this must be proved affirmatively in each case. There can be no conviction unless the likely consequences of the breach are proved. The particular order was passed to prevent unrest among the labourers and one would expect something proved in relation to it. Since there is no evidence of any likely consequences following the breach of the order, the conviction under H. 188, Penal Code cannot be upheld. I set it aside and acquit the applicants Under Section 188, Penal Code. The fines, if realised, shall be refunded.
6. This brings me to the second count. The argument here was that the power3 given to the Provincial Government have not been correctly exercised. The Provincial Government has banned the Rule 8. because it considers it as con-stituting a danger to public peace. It was stated that the Crown ought to have proved affirmatively in this case that this was true. It was argued that it is open to me to declare the notification ultra vires because there is no proof of such danger and that in any event the conviction Under Section 17 (1), Criminal Law Amendment Act cannot be sustained because in a criminal prosecution all the ingredients of the offence have to be proved. A large number of cases were cited showing that whore either a legislative or executive body abuses its powers, the resulting act can be disregarded as being either contrary to the powers given or in fraud of them.
7. The oases cited deal with subordinate Legislatures and autonomous bodies and have no connection with the instant case. The gravies of the charge Under Section 17 (1) is :
Whoever is a member of an unlawful association or takes part in meetings of any such association.....or in any way assists the operations of any such association, shall be punished etc.
An unlawful association is defined in Section 15 (1)
(b) which has been declared to be unlawful by the Provincial Government under the powers hereby conferred.
Under Section 16 (1) it is provided that :
If the Provincial Government is of opinion that any association interferes or has for its object Interference with they 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 Buch association to be unlawful.
8. Now it appears to me that the criminal Courts in deciding a case Under Section 17 (1) are concerned only with finding out whether an association has been declared unlawful or not. They are not concerned with the reasons for that declaration because the person on trial is not the Provincial Government but an accused charged with membership of an association after it has been declared unlawful. The gravamen of the charge is membership etc of an association which is rendered unlawful by a decision of the Provincial Government. All the ingredients of the offence are present in this case. The R. S. S. has been declared unlawful. The accuped parti, cipated in a meeting of the association which was being revived. The Courts can no more question the need of the notification than the need to pa33 an order Under Section 144, Criminal P C.
9. It was argued that the Provincial Government had be material to come to this decision. Even so, the Provincial Government is answerable to the Legislature and not to the Courts to which it has not been made subordinate either directly or indirectly in this behalf.
10. The Courts must administer the law as they find it. The law is that the power to determine whether an association is unlawful has been left to the Provincial Government. Persons affiliated to the unlawful association have to desist from their activities once the association is declared unlawful on pain of penalty. If the members chose not to desist, then the penalty is incurred. For the purposes of the application of Section 17 (1) Criminal Law Amendment Act, the Courts take judicial notice of the notification and then examine the evidence showing whether A or B took part or not in a manner prohibited by that section.
11. I am satisfied that the trial of the accused in this case under the Criminal Law Amendment Act was proper. The notification is there. Since the aetivitiea are mostly admitted, and where not admitted are proved, the convictions can-not be questioned. The sentences do not appear to be excessive. The application fails in so far as Section 17 (1). Criminal Law Amendment Act is con. cerned and the sentences passed under that section must stand.
12. With the modification in respect of Section 188, Penal Code, for which offence all the accused are acquitted, the application fails and is dismissed.