1. This reference made by the Sessions Judge at Poona raises a novel and interesting point as to the meaning of the word 'procession' in R. 56 of the Defence of India Rules, 1939. The two accused were charged with going in procession to Laxmi Road Chowk via the City Post Office at Poona in contravention of a notification issued by the Government under Rule 56(1). The notification was to the effect that no procession shall be held in any place in the Province of Bombay except with the previous permission in writing of the District .Magistrate, and no person shall take part in such procession in respect of which such permission had not been obtained. Under Rule 56 (1) :
The Provincial Government may, 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, prohibit, restrict or impose conditions upon, the holding of or taking part in public processions, meetings or assemblies.
2. Under Sub-rule (2) any procession, which was open to the public or any class or portion of the public, whether held in a public or private place and whether admission thereto was restricted by the issue of tickets or otherwise, shall be deemed to be a public procession, and Sub-rule (4) provides for the punishment.
3. The prosecution case was that the two accused were marching along on August 18 last at about 8-30 p.m. on a public road, one of them carrying a Congress flag and both of them shouting slogans, without obtaining the previous permission of the District Magistrate. Both the accused pleaded guilty to the charge, and the Additional City Magistrate convicted them under Sub-rule (4) and sentenced accused No. 1 to rigorous imprisonment for eighteen months and a fine of Rs. 500, and accused No. 2 to rigorous imprisonment for one year. They were also charged under Rule 53 of the Defence of India Rules relating to the breach of curfew order, but we are not concerned with that charge in this reference. The accused, thereafter, filed appeals to the Sessions Judge on the ground of severity of the sentence which are still to be disposed of and they also filed revisional applications challenging their convictions as illegal. As the learned Sessions Judge points out, it is open to them in revision to challenge the conviction as illegal even though they pleaded guilty to the charge. As held by our Court in Emperor v. Chunilal : (1926)28BOMLR1023 an accused person, who pleads guilty before a Magistrate and is convicted, can contend, under Section 412 of the Criminal Procedure Code, in his application for revision, that his conviction is illegal. The learned Sessions Judge, therefore, heard the revisional applications. It was urged on behalf of both the accused that the convictions were wrong inasmuch as the accused could not be said to have marched in procession, firstly, because it would require more than two persons to constitute a procession, and secondly, because there can be no procession unless people are marching in successive rows, and there was no evidence in this case that the accused were marching one after the other. With regard to the first argument, the learned Judge was inclined to the opinion that the fact that the two applicants were shouting slogans and were marching together would indicate a common bond between them, and that it was possible to argue that they formed a body of persons, and therefore constituted a procession. He was, however, of the opinion that as there was no evidence that the accused were marching one after the other, it must be presumed that they were marching side by side, and he felt it difficult to call such marching together as a procession according to the dictionary meaning of that word. As it has not been defined in any legal enactment, it is permissible to find out its meaning as it is commonly understood and that could be only done by finding its dictionary meaning. In the Oxford English Dictionary, on which the learned Judge relied, a procession is described as 'the action of a body of persons going or marching along in orderly succession in a formal or ceremonial way.' Relying on that definition the learned Sessions Judge was of the opinion that the two accused marching abreast cannot be described as going in a procession. He has, therefore, made this reference and recommended that if that view is accepted by this Court, the convictions of the accused should be set aside.
4. The learned advocate on behalf of the accused has supported the reference not only on the ground on which it is made but also on the ground that two persons cannot make a procession. It must be emphasized at the outset that the point for determination is not the abstract question as to whether two persons marching in a line would constitute a procession, but whether the two accused-one of them carrying a flag and both shouting slogans-marching together in a line for the purpose of demonstration can be regarded as a procession. Any number of persons moving forward in the same direction would not be necessarily described as a procession. A certain degree of order and formality in marching together is an essential element in its connotation. Although a body of persons may not move in regular form, some degree of orderliness is necessary to demonstrate its common object. Without such common purpose and intention to demonstrate it, there can be no procession, however large the number of persons may be and in whatever manner they might proceed forward. On the other hand, with such common purpose and the intention to make a demonstration by marching in some order, the number of persons and the manner of march are variable and less important factors in determining whether the body constitutes a procession. They regulate its size and shape but do not affect its entity as a body. The fact that there must be a common purpose and orderly march would necessarily imply that one person cannot form a procession, but if two persons are capable of having a common purpose and of proceeding together to demonstrate it, there is no reason why two should not be regarded as a sufficient number in forming a body of persons for the purpose of such demonstration. That being so, it is not really correct to say that there must be a fairly large body of persons to form a procession. If two persons are regarded as insufficient for that purpose, no particular number above two can be logically fixed as a minimum number, and there could be no definite and uniform test to be applied. The test of there being at least more than one person to form a profession would be both logical as well as definite having regard to its essential characteristic as a demonstration for a common purpose. At first sight it might appear strange to say that only two persons moving forward in a line can form a procession, and in ordinary experience a procession consists of a fairly large number of persons walking in rows of two or more, but once it is realised that the only important ingredients of a procession are a common purpose and a formal or demonstrative march, and that a particular number of persons is not an essential factor, even two persons can conceivably form a procession by satisfying those essential requirements. Mr. Gumaste for the accused has relied on a passage in Maxwell on the Interpretation of Statutes which says that 'in dealing with matters relating to the general public, statutes are presumed to use words in their popular sense,' and he has urged that in the popular sense a procession must consist of a fairly large number of persons, When asked as to the minimum number required, he conceded that three might conceivably make a procession, but it may very well be doubted whether even that is the popular sense. It is not, however, in my opinion, strictly necessary to determine the popular sense, because as observed by Maxwell in another passage, the meanings of the words of a statute' are found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular sense, as in the subject or in the occasion on which they are used, and the object to be attained.' One of the objects of prohibiting a procession under the Defence of India Rule 56 is to prevent persons combining together for making demonstrations of certain types, and a combination of two persons would not be excluded from its object. As the word occurs in a legal enactment, we have to give a definite sense to it and not to leave its meaning vague and uncertain. Such definite sense can be attached by making it applicable to a body however small and the smallest body would consist of two persons. The learned Sessions Judge seems also inclined to accept this view.
5. The only point on which he feels a doubt is whether such a body marching side by side would form a procession, because under the dictionary meaning it must march in orderly succession. The question, therefore, is whether marching in succession or rows is an absolutely necessary ingredient of a procession. Although in the Oxford English Dictionary, on which the learned Sessions Judge has relied, a procession is described as a body of persons going along in orderly succession in a formal or ceremonial way, it is not so described in another standard work, viz. Webster's Dictionary, where it is stated to mean 'that which is moving onward in an orderly, stately or solemn manner; especially a train of persons advancing in order.' Thus although it applies especially to a train of persons, it is not restricted to it but includes all bodies moving forward in an orderly manner. To the same effect is the meaning expounded in the Universal Dictionary of the English Language by Dr. H.C. Wyld, which the learned Sessions Judge has quoted in his judgment. I may lastly refer to the description of a procession in Encyclopaedia Britannica, 14th edn., Vol. XVIII, p. 543. There it is described as 'an organised body of people advancing in a formal or ceremonial manner,' and it is further observed that that definition covers a wide variety of such progress. Orderly succession is not mentioned as its essential ingredient. It will thus appear that it is not the unanimous opinion among the expounders of its meaning, that a procession must in all cases proceed in orderly succession, although they all agree that it means a body of persons marching forward in a more or less formal or organised way. When they are marching in this way, they may all proceed in one line or in rows and that would depend upon their number as well as the breadth of the road. There seems to be no reason to regard walking in rows as a sine qua non of a procession. It is only one though it is the most frequent mode of going in a procession. If, for example, ten persons move forward with unity of purpose and in a formal manner, it does not stand to reason that they should be regarded as a procession only if they all walk in successive rows and not if they walk together in one row on a broad thoroughfare. The question of successive rows comes in only if a large number is regarded as a necessary feature of a procession. But if, as the learned Sessions Judge is himself inclined to think, two persons can possibly form a body, and therefore a procession, the element of orderly succession ceases to be its essential requisite. On the facts of the case it is clear that both the accused were proceeding presumably together in a line with the common intention of making a demonstration, and I, therefore, think that they must be taken as marching in procession within the meaning of that word in Rule 56.
6. The reference is not accepted and it is returned to the learned Sessions Judge at Poona for disposal of the case according to law.
7. I agree. The point raised by this reference being novel, I wish to add a few words. The two questions arising are whether two persons are enough to make a procession and whether they can be said to be going in procession if they are walking abreast and not one behind the other. There is no statutory definition of the word 'procession.' Its etymological meaning is 'going forward.' Its origin is Latin, and in classical Latin the word generally used for a procession was 'pompa', a formal march or progress of persons to some particular spot to celebrate some event, or for some public or religious purpose. The word 'processio' is used by Cicero in the sense of marching forward, an advance, any public progress, such as the formal entrance of the Consul upon his office, or the public appearance of the Emperor. In that sense even a single person may go 'in procession.' But in dealing with matters relating to the general public, statutes are presumed to use words in their popular sense, though regard must always be had to the context. The popular meaning of a word is to be gathered from' modern standard dictionaries. Several such dictionaries were referred to in the course of the arguments, and on behalf of the accused reliance is placed on the Oxford English Dictionary edited by Drs. Murray and Bradley, cited by the learned Sessions Judge in his order of reference. There a procession is defined as 'the action of a body of persons going or marching along in orderly succession in a formal or ceremonial way.' It is argued that 'a body of persons' necessarily means more than two persons, and 'marching in succession' means 'going one behind the other.' But this meaning cannot be regarded as worded with the precision of a statutory definition. Usually a procession does consist of a large number of persons going together in a formal manner, more or less in a way to attract public attention. Necessarily some of them would be walking in front and some behind so as to form rows. Hence the word, in common parlance, is associated with the idea of a body of persons going in an orderly succession. But these two ingredients are not the essential factors of a procession. The learned Sessions Judge seems to think that even two persons can form a procession, provided they are walking one behind the other, but not if they are walking side by side. This would mean that even a large number of persons marching abreast in a line, carrying flags, beating drums and shouting slogans, cannot be regarded as going in procession. This would further lead to the strange result that two such men would not be a procession so long as they walk side by side, but as soon as one of them lags a bit behind, there would be a procession, so that the same two persons shouting the same slogans would be a procession for a few paces and would not be a procession for the next few paces alternately. If this meaning is to be attributed to the word 'procession', then the object of prohibiting a procession can be easily defeated. All the dictionaries, however, do not define a procession as consisting of persons going in an orderly succession. In Webster's International Dictionary the meaning of the word is given as 'that which is moving onward in an orderly, stately or solemn manner, especially a train of persons advancing in order, as a procession of mourners.' The expression 'in order' evidently means in an orderly manner, and not necessarily one behind the other. The expression 'a train of persons' does connote a number of persons, but it is mentioned; as 'especial', and not as a sine qua non. The Encyclopaedia Britannica defines a procession as 'an organized body of people advancing in a formal or ceremonial manner,' and adds that it covers a wide variety of such progresses. By way of illustration it mentions a procession organized as a demonstration of political or other opinions. In Molesworth's Marathi English Dictionary, the corresponding Marathi word (the word used by the Police Sub-Inspector and the Police Constable in their evidence) is defined as 'a slow, majestic march proceeding with solemnity and state or with parade and pomp.' These definitions give us a better idea of the essentials of a procession.
8. It is urged that even according to the definition given in Encyclopaedia Britannica, a procession requires 'a body of persons', that is to say an assembly of persons, and hence there must be at least five persons, as in the case of an unlawful assembly. But that number is arbitrarily fixed by the Indian Penal Code for a particular purpose. Under the common law of England the number of persons required to make an unlawful assembly is not five, but only three. Though an unlawful assembly may require three or five persons, it does not follow that two persons cannot form an assembly. In Godwin v. Walker (1896) 12 T.L.R. 367 a by-law which provided that 'a person shall not together with any other person or persons assemble in a street or public place for the purpose of betting' was held to be good. This shows that there can be an assembly of only two persons.
9. As held in The King v. Hall (1822) 1 B.& C. 123 the meaning of the words of a statute, when there is a doubt about their meaning, is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. Hence in the absence of a statutory definition, a word is to be understood in the sense in which it best harmonises with the subject of the rule and the object which it has in view. In the present case the object of the rule is to penalize an organized demonstration in a public place, which the District Magistrate may consider to be objectionable. If such demonstration be stationary it would be called a meeting or an assembly, and if in motion it would be called a procession, and Rule 56 of the Defence of India Rules deals with processions, meetings as well as assemblies.
10. In this view, if a definition, as nearly precise as possible, is to be attempted, I would define a procession as a formal and organized march of two or more persons, 'formal' implying a kind of solemnity or something spectacular, so as to attract attention, and 'organized' implying a common intention or unity of purpose. It is true that this definition may include even a couple of blind beggars going along a street shouting for alms. Even such beggars, thus going, may be regarded as going in procession. Whether to require the District Magistrate's previous permission for such a procession or whether to prosecute every one going in procession is a matter of policy with which we are not concerned. After all, every case must be decided on its own facts. Whether a march of two persons or more, walking abreast or one behind the other, is to be deemed a procession or not must depend, to a large extent, on what the onlookers are likely to take it to be, and from this point of view, the march of the two accused, one of them carrying a flag and both shouting slogans, must be held to be a procession.
11. Mr. Gumaste for the accused raised a new point in this Court that the procession of the accused was not open to the public or to any class or portion of the public, since by reason of the curfew order no member of the public could at that time get out into the street, and therefore, it would not be a public procession as defined in Rule 56, Sub-rule (2), of the Defence of India Rules. But the criterion is not whether the public could see it by going into the street, but Whether the public wishing to break the law, as the accused did, could join it, and there was nothing to prevent any member of the public from doing so, if he or she was prepared to take the consequences. The march of the two accused, as described in the evidence, whether they were going side by side or one behind the other, was, therefore, a public procession within the meaning of that sub-rule.
12. I, therefore, concur in the order proposed by my learned brother.