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Kempe Gowda and ors. Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 116 of 1953
Judge
Reported inAIR1954Kant58; AIR1954Mys58; ILR1953KAR622; (1955)33MysLJ179
ActsIndian Penal Code (IPC), 1860 - Sections 141, 145 and 151; Code of Criminal Procedure (CrPC) - Sections 127
AppellantKempe Gowda and ors.
RespondentThe State of Mysore
Appellant AdvocateA. Shamanna, Adv.
Respondent AdvocateAdv. General
Excerpt:
.....under contempt of courts act, 1971 is not maintainable. - the word 'lawfully' in section 151 cannot be construed as having reference only to the authority or competency of the person issuing the command but is to be understood as signifying authority as well as likelihood of disturbance of public peace and if either of these is found lacking the command cannot be said to be 'lawful'.the learned magistrate docs not seem to have applied his mind to see whether eregowda or kempegowda was in his opinion in possession of the land and as to who was entitled to take the standing crop......joins or continues in any assembly of five or more persons likely to cause disturbance of the public peace after such assembly has been lawfully commanded to disperse shall be punished with imprisonment etc. 'explanation'. if the assembly is an unlawful assembly within the meaning of section 141 the offender will be punishable under section 145.' 2. the person competent to command and disobedience to whose command constitutes the offence is not mentioned in the section. but section 127, criminal p. c. provides:'any magistrate or officer in charge of a police station may command any unlawful assembly or any assembly of live or more persons likely to cause a disturbance of the public peace to disperse; and it shall thereupon be the duty of the members of such assembly to disperse.....
Judgment:
ORDER

1. The petitioners who are six in number have been convicted under Section 151, I. P. C. for having refused to go away when asked to do so by the Police Inspector on 31-12-52 and each sentenced to pay a fine of Rs. 5. The case was tried summarily and this is one of the grounds of objection to the conviction. From what can be gathered by a perusal of the judgment and the exhibits there is a dispute between the accused on the one hand and one Eregowda on the other about the ownership, possession or both of a land. Eregowda anticipating trouble by the accused being caused to his cutting the crops applied for police help and as apprehended accused went in a body to prevent Eregowda from removing the crop and refused to quit tile place as ordered by the Inspector. It is argued that Section 151, I, P. C. has been resorted to with a view to deprive the accused benefit of a trial in the ordinary manner by giving up the complaint alleging serious offences, that the order of the inspector was not lawful and that the conviction is unjust inasmuch as it implies a punishment for accused staying on a land which is theirs.

The judgment in the case does not set forth the points raised or necessary for determination as it should, though the case is tried summarily and proceeds on the view that disobedience to the Inspector's order will suffice to render the accused guilty under Section 151, I. P. C., which reads thus:

'Whoever knowingly joins or continues in any assembly of five or more persons likely to cause disturbance of the public peace after such assembly has been lawfully commanded to disperse shall be punished with imprisonment etc.

'Explanation'. If the assembly is an unlawful assembly within the meaning of Section 141 the offender will be punishable under Section 145.'

2. The person competent to command and disobedience to whose command constitutes the offence is not mentioned in the section. But Section 127, Criminal P. C. provides:

'Any Magistrate or Officer in charge of a Police station may command any unlawful assembly or any assembly of live or more persons likely to cause a disturbance of the public peace to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly, etc.'

3. The condition for making the command is that there should be an assembly of five or more persons and likelihood of a disturbance of public peace. In -- 'Girdhara Singh v. Emperor' AIR 1922 Lah 135 (A), it was hold that it is not sufficient that the Magistrate who ordered the assembly to disperse considered it necessary and that for a charge under Section 151, I. P. C. evidence to the satisfaction of the Court must be placed to show that the assembly was in fact likely to cause disturbance of the public peace. The word 'lawfully' in Section 151 cannot be construed as having reference only to the authority or competency of the person issuing the command but is to be understood as signifying authority as well as likelihood of disturbance of public peace and if either of these is found lacking the command cannot be said to be 'lawful'. The learned Magistrate docs not seem to have applied his mind to see whether Eregowda or Kempegowda was in his opinion in possession of the land and as to who was entitled to take the standing crop.

The command under the section is not to be sought or issued for placing a party whose right to or possession of a land is seriously and bona fide disputed by others, in a position of advantage. If, as is urged for the accused, they tried to cut the crops on a land claimed as their own on the strength of registered sale deed, they were entitled to do so and their acts cannot properly justify the command as it would be the other party interfering with them who has to be directed to leave the place. There are other provisions in the Criminal Procedure Code which are to be availed of for preventing breach of peace when disputes relating to land are likely to cause it. The circumstances of the present case, in my opinion, did not warrant the Inspector to command the petitioners to leave the place and in that view the accused cannot be said to have been 'lawfullycommanded' as required in the section. Theconvictions and sentences are therefore set asideand the accused are acquitted. The fines, if paid,will be refunded.

4. Conviction set aside.


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