1. The petitioners 13 in number who were accused in the Court of the Second City Magistrate, Mysore, and who are all described as students, have been tried and convicted for an offence under Section 56(o), Mysore Police Act and sentenced to pay a fine of Rs. 10/- each and in default to undergo S. I. for six days. The charge against them was that on 26-9-1952 at about 10-30 A.M. they were present at a meeting held to inaugurate the work of the Committee on Educational Reforms in Mysore in the Crawford Hall, Mysore City, and that there they behaved riotously and in a disorderly manner by shouting some slogans and throwing pamphlets and thereby caused a breach of the peace. The charge also mentioned that the accused's conduct amounted to offences by Clauses (o), (q) and (r) of Section 56. Though the learned Magistrate has not chosen to make any reference to the offences under Clauses (q) and (r) of Section 56 and does not say in his judgment whether he acquitted the accused of the offences under those clauses, there is no doubt at all that no case falling under those clauses has been made out against any of the accused. Section 56 (q) refers to wilfully pushing, pressing, hustling or obstructing any passenger in a street or disturbing the public peace or order by violent movements etc.; (r) refers to misbehaviour by using in any street any threatening, abusive or Insulting words or behaviour; and it is net clear why a charge under these clauses was at all put in the charge sheet. We are, therefore, only concerned to see whether an offence has been committed under Clause (o) which reads as follows:
'(Whoever) wilfully and indecently exposes his person, uses indecent language or behaves indecently or riotously or in a disorderly manner in a street or place of public resort, or in any public office.'
and the only question of that clause which would apply to the present case would be that relating to behaving riotously or in a disorderly manner in a place of public resort.
2. It is contended by Mr. A. Shamanna, learned Counsel for the petitioners, that it has not been shown by the prosecution that Crawford Hall was A place of public resort & the meeting convened there was a public meeting. To decide this point as well as other points, which I will refer to later, it would have been of great advantage if the conveners of the meeting at least had been examined It is represented that persons were invited to attend the meeting and that even passes were issued. P. W. 1 says that he does not know whether any such invitations were issued. But in this Court Mr. Shamanna sought to produce a printed invitation card said to have been given to the invitees by Mr. J.B. Mallaradhya Director of Public Instruction. This cannot of course be treated as evidence at this stage as it has not been formally proved to have been issued by him. No notice by which the meeting was called is produced by the prosecution; nor is it shown that Crawford Hall is a place of public resort and that anybody can walk in and attend any meetings conducted there and that all meetings held there are public meetings. The learned Magistrate appears to think that that meeting was a public meeting because loud speaker arrangements had been made for the public outside to hear what was going on inside the hall. It is now quite common to have such loud speaker arrangements even for musical and other performances and in purely private meetings conducted in enclosed premises, and that would surely not make those meetings public meetings or those premises places of public resort.
(3) It is not disputed that if the meeting was a private meeting and the Crawford Hall was not a place of public resort the Police could not have attended that meeting and sought to keep order in it without a special invitation by the conveners. Here again P. W. 1, the Police Inspector, says that he does not remember who asked him and the Sub-inspectors, P. Ws. 2 and 3, to be present inside the hall and to preserve peace there. It has been suggested in the course of cross-examination that several members and scouts were in charge of seating arrangements in the hall and were expected to maintain quiet and orderliness and that the Police had no place in the meeting. Here too unfortunately the prosecution by not summoning the conveners and the learned Magistrate by refusing to summon them as witnesses for the defence, has deprived both the prosecution and the accused from placing that important piece of evidence on record.
4. The learned Advocate-General has referred to a case reported in -- '33 Mys CCR 176 (A)', where in a case of an affray it has been held by Plumer C. J. distinguishing -- '25 Mys CCR 105 (B)', that a small piece of unfenced and open margin land by the side of the road which was freely accessible to the public and was being readily moved on by them though it belonged to a private owner, was a public place & to similar cases in -- 'In re Musa' AIR 1917 Mad 124 (C) and -- 'Emperor v. Govindarajulu' AIR 1916 Mad 474 (D), where what is a 'public place' and what is a 'place of public resort' have been considered. In -- '25 Mys CCR 105 (B)', Plumer J. who later decided -- '33 Mys CCR 170 (A)', held that the tennis court of E, Tennis Club however great its publicity is not a public place, and that mere accessability of the place: or its being open to public view did not constitute it a public place. It is primarily a question of fact to be decided in each case whether a particular place is a place of public resort, i.e., one to which the public have free access or on which they have a right to enter. Obviously a halt like the Crow ford Hall which presumably belonged to the Government or to the University cannot be described as a place of public resort or a public place and any meeting held within the confines of such a building cannot be described as a public meeting, without better proof which was easily available.
5. Mr. Shamanna next contends that the prosecution has not made out by unimpeachable and clear evidence that the accused are guilty. He represents that the prosecution cited only four witnesses, viz., the Inspector of Police, P. W. 1, the Sub-Inspectors P. Ws. 2 and 3 and a Police Daffedar who was not examined. They did not cite a single other official or non-official witness though it is said that about 2 or 3 thousand people were present at the meeting. Even several volunteers or scouts were not cited or examined for the prosecution. He further urges that it is clear from the evidence of P. W. 1 that he may not have been present when the trouble started and must have come into the hall only much later and that the evidence of P. Ws. 2 and 3 shows clearly that they arrested the accused in the corridor, which was apparently after the disturbances. HG has also referred to several discrepancies in the evidence. It must be admitted that P. W. 1 has exhibited rather a remarkable ignorance of what was going on in the hall. He has stated that he does not even know who was presiding at that meeting and who, if any, gave the music, in which parts of the hall the ladies were sitting and whether a picture of Mahatma Gandhi had been hung up and whether the Saraswathi picture, which was apparently hung up on the dais in the hall as appropriate to an Educational function on that Saraswathi Puja day was garlanded or not, that he did not notice the presence of the Chief Justice and some other persons on the dais and cannot state if there was an invocation or prayer before the meeting started.
6. The learned Advocate-General has, however, urged that sitting in revision I should not ordinarily weigh the evidence. But here again the learned Magistrate by shutting out the defence from letting in evidence of persons who would be expected to speak to the incidents of that morning has made it impossible for himself to compare the prosecution evidence with the evidence let in by the accused; in such a case there can really be no proper appreciation, of the evidence which appraisal has to be accepted.
7. Mr. Shamanna has next urged that the mandatory provisions of Section 242, Criminal P. C. have not been complied with and has relied on a case in -- '7 Mys LJ 144 (E)'. But I think there is no force in that contention because on 26-9-52 when the charge-sheet was presented, the learned Magistrate has made a note in the order sheet that the charge was read over and explained to the accused in Kannada and they pleaded not guilty, though in Col. 11 of the form in which the proceedings were to be entered, if the case had been tried in a summary way, there is no such record.
8. It is next urged by Mr. Shamanna that the joint trial of all the accused was illegal. He urges that it is not shown that the accused persons had a common object or were acting with any common intention: P. W. 1 has admitted that he docs not know the relationship between the various accused, i.e., whether they belonged to any particular group or association. They belong to different communities and apparently they have nothing in common with each other except their professed love of the Kannada language. He, therefore, contends that each of the accused should have been tried separately. But as pointed out by the learned Advocate-General I think this case is clearly covered by Section 239, Criminal P. C. The accused are persons charged with the same offence committed in the course of the same transaction and were rightly charged and tried together. The proximity of time, place and events is no apparent in this case that there is no doubt in my mind that what all the accused did was in the course of the same transaction.
9. Mr. Shamanna has urged that the accused were entitled under Article 19(1) relating to freedom of speech and expression in the Constitution, to insist that the proceedings at that meeting should take place in Kannada. I think there is no substance in that claim. The same freedom of speech and expression and the freedom to assemble peaceably under Clause 19(2) (sic) should avail the conveners of the meeting to enable them to hold the proceedings in whatever language they liked and it would be no answer to a proper charge that the accused behaved riotously at a private or even a public meeting violently or in an indecorous manner or disorderly way by insisting on the same being held in a particular language or in a particular way. They were there by invitation or sufferance and could not take the conduct of the meeting into their own hands.
10. It was also contended for the petitioners that the judgment of the learned Magistrate is not in accordance with law, i.e., the requirements of Section 367, Criminal P. C. as it does not discuss the action of each of the accused and how it is an offence; and reliance has been placed on cases reported in -- 'Abdul Karim v. Emperor' AIR 1940 Sind 113 (F) and -- 'Shanmukh Bosapa v. Emperor' AIR 1930 Bom 163 (G). It must be admitted that the judgment of the learned Magistrate does not at all discuss the evidence in detail and does not say what each of the accused is proved to have done. But it is, however, unnecessary to pursue this aspect of the matter further in the view I have taken that there are other and more serious objections against the conviction.
11. It is next contended very strenuously for the accused by Mr. Setlur, their learned Counsel who argued this part of the case, that the trial is vitiated by the refusal of the Magistrate to summon the witnesses whom the accused had cited. Here I think the petitioners are on very firm ground The case was sought to be tried in the first instance summarily and later on on an application made by the accused it was tried in the regular way. After the witnesses for the prosecution had been examined and before they were examined under Section 342, Cr. P. Code the accused made an application under Section 540, Criminal P. C. to examine some persons as Court witnesses. In that application they pointed out that the evidence on record clearly showed
'that many important personages were present in Crawford Hall at the time of the incident, that the prosecution had not 'strangely' cited them for fear that if they were summoned their evidence would not be favourable to the prosecution'
and that in the interests of justice it was necessary to summon the eleven witnesses whose names and addresses were given in that application in order to supply to the Court materials which would throw light on the reality of the affair. This application was opposed by the Prosecuting Inspector on the ground that that application was premature as the accused had not yet been examined & that the persons noted therein were 'too big to be examined in a trivial case of the kind'. On 12-12-52 the learned Magistrate passed an order and I think rightly rejecting the application. He thought that it was not either necessary or incumbent on the Court to examine witnesses as Court witnesses merely to fill up any lacuna for either party. It was not even a case where a person had been cited as a witness for the prosecution and had unreasonably been given up.
Later, on 8-1-53 after their statements were recorded and they had entered upon their defence, the accused again applied under Section 244, Criminal P. C. praying that 10 out of the 11 persons whoso names and addresses had been mentioned in the earlier application may be summoned as witnesses for the defence. That application was apparently also opposed by the Prosecuting Inspector. No written objections appear to have been filed and there is no note as to on what grounds that application was opposed. On 12-1-53 the learned Magistrate passed an order refusing to issue summons to any of those witnesses except only one Veerappa, a scout. The learned Magistrate observed: that the witnesses mentioned in the list as SI. Nos. 1 1o 4, viz., the Chief Minister, the Education Minister, the Director of Public Instruction & the Vice Chancellor could not have been on the balcony but must necessarily have been seated on the dais. None of them could have been in charge of the maintenance of law and order during the session. Sl. Nos. 5 and 7, the Chief Justice and Mrs. Dhillon, could have been there only as invitees just as others: Merely because the accused may have seen those persons on the dais or heard that they were present, it could not be a sufficient basis for them to 'pitch only upon those particular persons' as witnesses, and any one on the balcony could have been more properly cited as witness to speak to the fact as to whether there was disturbance or not; Furthermore the full addresses of all these witnesses were not furnished and the object of the accused could only be considered to cause unnecessary delay. Many of the witnesses were holding important positions in Government or Judiciary of the State and it would be nothing short of a sheer waste of public time to secure their presence for the purpose of this petty case. In the learned Magistrate's opinion the application was to be refused on the ground that it was made for the 'purpose of vexation.'
12. Mr. Setlur has urged that the witnesses cited were all eye-witnesses: that their full addresses had been given in the application and nobody could say that with those addresses they could not be served; that the accused were taking a very responsible and serious step of summoning persons about whose position in life and whose credability there could be no question and who would have been in the best position to say how the disturbances originated, what was the nature and extent or quantum of the disturbance, and whether there was provocation or insult from any of those witnesses, by which the situation was worsened as alleged or suggested by the accused and whether there was riotous conduct on the part of the accused. He has relied on some reported cases -- 'Emperor v. Rasul Buse' AIR 1942 Sind 122 (H), -- 'Vidya Parkash v. Emperor' AIR 1940 Lah 58 (I), -- 'Debi Singh v. Emperor' AIR 1924 Pat 142 (J) and -- 'Parbhu v. Emperor' : AIR1929All914 , for the well recognised position that an application for summoning witnesses made by an accused person can only be refused if the Court is satisfied that such application is made vexatiously or in order to delay the proceedings; and he urges that it is not prima facie shown that the evidence is not relevant for the purpose of the defence. There is a good deal of force in these contentions.
13. The learned Advocate-General has strongly relied on a case reported in -- '8 Mys LJ 49 (L)', to contend that the Court has the discretion to refuse to issue summons in such cases. -- '8 Mys LJ 49 (L)', was a case of a prosecution under Section 124A, I. P. C. in respect of an article published in a newspaper. The Court properly refused to issue summons to the Dewan of Mysore and the Members of Council and other high officers of Government as it rightly thought that their evidence would neither be relevant nor useful to determine whether a case of sedition had been made out or not in respect of the article in question. That case is entirely different from the present where eye-witnesses were sought to be summoned. Moreover the learned Magistrate has not considered the case of each of the witnesses separately; e.g. Mr. S. Chenniah, President of the City Congress Committee in Mysore, Mrs. Dhillon, who is a non-official, Mr. Shivananjappa, the City Magistrate, Mysore, Mr. Mahomed Ahmed, Deputy Commissioner, Mysore, cannot be said to be witnesses summoning of whom was likely to cause any great waste of public time. They are obviously respectable persons who would be expected to speak the truth and it cannot be said that their evidence would have been irrelevant. Similarly Mr. P Medapa, the Chief Justice in Mysore, and Mr. B. L Manjunath, the Vice Chancellor, and Mr. K. Hanumanthaiya, the Chief Minister, and Mr. A.C. Ramachandra Rao, the Education Minister, who were present at the meeting and who had seen and heard what took place there would have been able to give relevant evidence as to what happened and if the accused were prepared to pay their travelling expanses and the cost of summoning them I do not see why their presence could not have been secured.
14. Mr. Shamanna has urged that the learned Magistrate's view that it was a petty case was not correct, that so far as his clients are concerned they are all students and a conviction in this case would brand them as rioters who had no respect for law and order and that the consequences of such a conviction would be much more serious that what the learned Magistrate seems to think. He represents that they were all arrested by P. W. 1, not allowed on bail immediately on their own self bonds as usual in such cases, taken under armed escort to the Police Station and produced in Court under such armed escort and in Police custody P. W. 1 says he did so because he thought there might be trouble from the accused though he admits that they were unarmed. This, Mr. Shamanna, argues, shows that the prosecution did not think that it was a trivial matter. He points out that it has been suggested to P. W. 1 that he might have been more enthusiastic than necessary and that he has stated that he did not consult either the Chief Minister who presided on the occasion or Mr. Mallaradhya, who was apparently responsible for convening the meeting, as to whether annoyance of sufficient gravity had been caused to them for launching these proceedings and that the conduct of the accused persons deserved the rather severe and drastic action that seems to have been taken against them.
15. The learned Advocate-General has urged that in summons cases the requirements of law are not so imperative as is the case of warrant cases, in the matter of summoning witnesses for the accused. 'A.I.R. 1940 Lah 53 (I)' is an authority against that position and though it may be that the Court ought to be more careful in refusing such requests in warrant cases I do not think the Court can treat the case of the accused in summons cases so very lightly. I think in this case the learned Magistrate could have and ought to have issued summons at least to some of the witnesses mentioned in their list even if he felt that all of them need not be summoned on the ground that it would be vexatious or entail delay to do so. It might be remembered, that it is very important that Courts of justice should function in a way which will induce and foster respect and confidence towards them in the public mind. Nothing should be done, especially in cases where persons of influence and position may be said to be affected, which would give an impression that the trial will not be thoroughly fair.
Justice must not only be done but must be shown as being done. When the law vests in a Court certain discretion that discretion should be exercised so as not to give rise to any reasonable complaint of prejudice or bias: vide -- 'Sheoprakash Singh v. Emperor', 28 Cal 594 at p. 595 (M) approved in -- 'Pita v. Emperor' : AIR1925All285 . The Magistrate is bound to record the reason why he refuses to issue summons to each individual witness and the failure to record reasons is an illegality and cannot be cured by Section 537; vide -- 'Narayana Mudaly v. Emperor', 31 Mad 131 (O), -- 'Emperor v. Purushottam', 26 Bom 418 (P) and -- 'Manomohan Dastidar v. Bankin Behari' : AIR1925Cal411 . While the Court is fully justified in declining to accede to the request which would amount to an abuse of the process of the Court it should at the same time be careful not to do any act which would hamper the accused in his defence; -- 'Sayad Habib v. Emperor' A. I. R 1929 Lah 23 (2) (R).
16. In the result I allow this petition, set aside the conviction and sentence passed on the accused and acquit them. The fine, if already recovered, will be refunded to the accused.
17. Revision allowed.