1. These are three cases which have been argued together because they have certain features in common. Reference No. 88 of 1930 is a reference from the Sessions Judge of Nasik made to us under Section438, Criminal P.C. The other two cases Applications Nos. 412 and 426 are applications in revision by the accused persons. The features which the cases have in common are these: In all the cases the accused are charged with being members of associations rendered unlawful by a declaration of the Bombay Government notified in a Gazette Extraordinary dated 19th August 1930. It is alleged in each case that the association of which the accused were members was one of those referred to in the schedule to that declaration. Each of the accused was prosecuted under Section17(2), Criminal Law Amendment Act 14 of 1908, for taking part in the management of an unlawful association. But in the two revision cases the accused were actually sentenced under Section17(1) of that Act.
2. The first question which arises in all the cases is whether the Crown is bound to prove that the accused were members-of the association in question after it was declared unlawful. For the purposes of my judgment, I will assume that the accused were all members of the association in question immediately before it was declared unlawful. under Section16, Criminal Law Amendment Act, the Local Government is empowered by notification in the official Gazette to declare an association unlawful on the grounds therein mentioned, which are in effect that the association constitutes a danger to the public peace. under Section17(1) it is provided that whoever is a member of an unlawful association or takes part in meetings of any such association or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association shall be punished with imprisonment for a term which may extend to six months or with fine or with both. So that this subsection deals with the case of a person who is a member of an unlawful association or acts as such Sub-section (2) provides that whoever manages or assists in the management of an unlawful association or promotes or assists in promoting a meeting of any such association or of any members thereof as such members shall be punished with imprisonment for a term which may extend to three years or with fine or with both. So, that this subsection deals with the more serious offence of management of an unlawful association. Under the definition clause, Section 15, 'unlawful association' includes an association which has been declared to be unlawful by the Local Government under the powers conferred by the Act. That definition was no doubt necessary because otherwise it might have bean contended that once an association is declared unlawful it can have no existence in law and that it is therefore impossible for any one to be recognized as a member of it in a Court of law. That point however cannot be raised, because the unlawful association includes an association which has been declared unlawful.
3. Now the first point taken on behalf of the Crown is this: The declaration was published (I will assume) on 21st August and the accused were arrested, in the two revision cases on 22nd August, and in the reference case on the 24th, and it is argued that if the accused are shown to have been members of the association on 21st August it must be presumed that they remained members on the 22nd and 24th. No doubt if no change had taken place in the status of the association that presumption would properly be made. But in all these cases a very material change had taken place in the status of the association between 20th and 22nd August. It had been declared unlawful, and membership thenceforth involved criminal liability. It seems to me that there can be no justification whatever for presuming that because a person was a member of an association which was lawful, he remained a member of that association after it had been declared unlawful. To make such a presumption would in my view be to ignore both the presumption of innocence, which is always made in a criminal case, and the presumption which is made in cases, whether civil or criminal, that people behave rightly and properly. The principle is embodied in the maxim omnia praesumuntur rite et solenniter essc acta donec probetur in contrarium, all things are presumed to be rightly done until the contrary is proved. It seems to me that when the Local Government declares a particular association to be unlawful the Courts must presume that the citizens will recognize that declaration, which is made after all for| their good, to preserve the public safety, and will loyally carry it out, and that they will cease absolutely to be members of the association declared unlawful, or in any way to act as such.
4. Then the case is put for the Crown in a different way, though I think it really comes to the same point. It is said that if the accused say that they ceased to be members of the association after it became unlawful it is for them to prove that fact: they are stating an affirmative fact, and the burden is upon them to prove it, and reliance is placed on Section 108, Evidence Act. Apart from the answers which I have already suggested to the argument put in its first form, I think the answer to the argument in its second form is that there is no necessity for the members of an association declared unlawful to take any active step to bring their connexion with the association to an end. There is nothing in Section 17, Criminal Law Amendment Act, to impose upon the members of the association declared unlawful the obligation of doing anything specific to terminate their membership, and the language of the section seems to me inconsistent with the idea that any such obligation was intended, to be imposed. The normal way of bringing an unincorporated association to an end would be by a resolution passed at a general meeting to wind up the association. It is quite plain that the calling of a meeting for that purpose would infringe the provisions of Section 17(1). If it had bean intended that some active step should be taken to bring the association to an end, one would have expected to find in Section 17 provisions saving from illegality meetings called for the purpose of winding up the association and acts done with a view to severing connexion with such association, but no such provisions are to be found. If a member writes a letter of resignation, he thereby admits that at that moment he is a member of the unlawful association, and the Secretary who acts upon such letter makes a similar admission, and both are liable to be prosecuted. It seems to me that what the legislature has done is to rely on the general declaration of illegality as bringing the association to an end and has not required members to take any active step to sever their connexion with the body.
5. It is argued further that if that view prevails it may be very difficult for the Government to procure convictions. But after all the powers conferred by Sections 16 and 17, Criminal Law Amendment Act 14 of 1908, appear to have been given to the Government to enable them to put an end to the activities of bodies considered to be acting contrary to the public safety, and if the result of the declaration is that those activities automatically cease, then the object of the legislature has been achieved. I do not think that the powers given by Sections 16 and 17 of the Act were intended to be used so as to make people liable to penalties for shaving been members of associations at a time when they wore lawful, and not unlawful.
6. On the facts of these three cases, I can find no evidence whatever that any of these accused in any way acted as members of these associations after the date when they were declared unlawful, In Reference No. 88 of 1930, the only evidence against the accused was that a letter was found which had been written to him in his capacity as secretary of the association. It appears to me clear, as it appeared clear to the Sessions Judge of Nasik who made the reference, that the here receipt of a letter cannot make a man liable as a member. In the two revision applications, there was no evidence at all that the parties acted as members after the declaration. In Revision Application No. 412 of 1930, the statements of the two accused, who were the president and the secretary of the Karad Taluka Congress Committee, were relied on by the learned Sessions Judge. They did no doubt state that they remained as president and secretary respectively of the association in question until the time of their arrest, but when the whole statement is looked at, it is clear that they were asserting that they had no notice that the association had been declared Unlawful and were merely admitting that they had not taken any active step to sever their connexion with the association down to the date of their arrests. In Revision Application 426 of 1930 the case of the accused was that they had not been members or acted as members of the association in question since December 1929 when the creed of the National, Congress was altered, I can find no evidence whatever that they acted in any way as members of the association after it was declared unlawful.
7. In that view of the matter it is unnecessary to decide the other questions which were argued. It was argued in each case that the particular association of which the accused were alleged to be members was not an association declared unlawful by the notification of 21st August 1930. It is unnecessary to decide that point, but I may say that I was not greatly impressed with those arguments and I should probably have held that the associations were covered by the declaration. Another point argued was that in the two revision applications the charge ought not to have been altered from a charge under Section17(2) to one under Section17(1), Criminal Law Amendment Act. If is unnecessary again to express an opinion on the point. As I take the view that the Crown have failed to establish their case against the accused, the convictions and sentences in all the cases must be quashed, and the fines, if any, paid should be refunded. Order accordingly.
8. We are dealing with three cases under Section17, Act 14 of 1908, and Notifications Nos. 3570 and 3571 published in a Gazette Extraordinary of 21st August 1930. One is a reference by the Sessions Judge of Nasik and the other two applications for revision of convictions and sentences recorded by a Magistrate and modified in appeal by the Sessions Judge of Satara. Several points have been argued, but the principal ones are common to all three cases. The first is whether the associations held to be unlawful in the three cases were really among the ones notified, and the next, whether in fact the persons concerned can be held to have continued their membership of these unlawful associations after the date of the notification. The first arises owing to the fact that the three associations in question are not named in the notification, Their names are the Yuddha Mandal of Nasik and the Taluka Congress Committees of Karad and Tasgaon, and if these are to be considered as within the notifications it must be by inference from the general language used in its preamble, on the grounds that the Yuddha Mandal in the Nasik case was only a new name for the Kayadebhang Mandal of that, place, which is mentioned in the notification, and that the Taluka Congress Committees were branches of the District Congress Committee of Satara.
9. I agree with the learned Chief Justice that probably I would have found against the applicants on these points, if it had been necessary to arrive at a decision. But it is not necessary to do so, for the reference and applications must succeed on another ground, even on the assumption that these wore three unlawful associations. In the Nasik case the conviction was under Section17(2), Criminal Law Amendment Act, and in the two Satara cases the convictions wore altered to one under Section17(1) of the Act. But the cases are essentially similar as there is no evidence of management, after 21st August 1930, in any of them, and we have to consider the facts from the point of view of membership. The ordinary rule is that the burden of proving the elements of an offence lies upon the prosecution. There is no evidence on this point and we have been asked to presume that a man who was a member of an association since declared unlawful continues to be a member unless he can show that he has resigned at the date of the notification. In ordinary cases an association might be declared unlawful, and if its members or some of them were to decide to continue associated together in defiance of the notification, there would be something done in furtherance of its aims after the relevant date to show its continuing existence or membership and those members unwilling to continue would probably have resigned; but there is a real difficulty, where, as here, the arrests of its members follow immediately, or as soon as may be, on the publication of the notification, for as there is no time for the persons concerned to dissociate themselves from the association which has become unlawful, so there can be no opportunity for the prosecution to prove continuing membership, and if there are to be convictions at all in these circumstances they must rest on a presumption of continuance, and though nominally for being, in reality for having been, a member of an association which has since become unlawful.
10. The terms of Act 14 of 1908 do not contemplate this effect, and for relevant presumptions we can only look to Sections 106 and 114, Evidence Act. Section 114 by Illus. (d) includes instances of presumption of the continuance of a state of things shown to have been in existence, and Section 106 shifts the burden of proof to the person within whose knowledge any fact especially is here the discontinuance of membership. If the immediate effect of the notification is interpreted in this way, obviously all. members of an association notified as unlawful are necessarily guilty of an offence within an impossibly short interval of the notification being published, arid the general presumption of innocence is done away with. It is true that the probability is that a person hastily resigning, as was the case of the president. of the Tasgaon Taluka Congress Committee, who did this on 22nd August, would perhaps not be prosecuted by the executive, but technically he would still be guilty, I think that the act of notification did not shift the burden of proof, as has been suggested to us, and there being no evidence that the persons concerned continued to be members of the associations declared unlawful, the convictions must be set aside in all three prosecutions in respect of all the persons concerned.