C. Honniah, J.
1. The offence with which the petitioner-accused was charged was that he used threatening and indecent language and behaved in a disorderly manner with an intent to provoke a breach of the peace and thereby committed an offence punishable under section 92 (1) (r) of the Mysore Police Act. 1963 (hereinafter referred to as Act) and further the offence with which the petitioner-accused was charged was that he was drunk and incapable of taking care of himself under the influence of alcohol and behaved indecently in the Police Station which is a public resort .and thereby committed an offence under Section 92 (1) (p) of the said Act.
2. So far the offence under clause 1 (r) of Section 92 of the Act is concerned the learned Magistrate has disbelieved the evidence of the prosecution witnesses and has held that the accused had not committed any offence under the above said Act, and in that view of the matter he acquitted the petitioner-accused. So far as the offence under clause 1 (p) of Section 92 of the Act, is concerned, the learned Magistrate relying upon the evidence of the Sub-Inspector of Police, Jamkhandi, who has been examined as P. W. 4 and another Sub-Inspector by name Srirans of Banahatti Police Station came to the conclusion that the accused was found drunk and incapable of taking care of himself in the Police Station and therefore he was liable to be punished under Clause (1) (P) of Section 92 of the Act. Accordingly he convicted him and sentenced him to pay a fine of Rupees 10/i in default to suffer simple imprisonment for five days. As against this conviction, the accused has preferred this revision petition.
3. The accused in this case was a Police constable attached to Jamkhandi Police Station. The case against him was that on 8-5-1970 at about 3-00 or 3-30 p. m. he was found in one of the streets at Jamkhandi with an injury on his right thumb. The medical evidence in the case shows that the accused had sustained a compound fracture. The prosecution has sought to prove by examining P. Ws. 1. 5. to 8 that the accused was found in a public place or street using threatening or abusive or insulting words behaved in a disorderly manner with an intent to provoke the breach of the peace or whereby the breach of the peace might be occasioned. The above witnesses did not support the case of the prosecution, on the other hand their evidence shows that the accused had sustained a serious injury on his right thumb which required immediate treatment. Their version is that because of the injury he had sustained he was not behaving in the normal way. Although one of these witnesses has stated that the accused was smelling alcohol it is clear from the evidence of these witnesses that even if he had consumed alcohol he was not behaving indecently. But on the other hand their evidence points out that the accused was suffering from great pain and for that reason he was not normal. On that score the learned Magistrate acquitted the accused of an offence under Clause (1) (r) of Section 92 of the Act.
4. So far as the offence under Clause (1) (p) of Section 92 of the Act. is concerned reliance is placed on the evidence of P. Ws. 3. 4. 9 and 10. Prosecution witnesses 3 and 10 are the panchayatdars who were present at the time of the mahazar in the Police Station when the condition of the accused was recorded. They did not support the case of the prosecution that the accused was drunk and incapable of taking care of himself in the Police Station. Reliance was placed on the evidence of P. Ws. 4 and 9 who are the Sub-Inspectors of Police Jamkhandi and Banahatti respectively. It is clear from the evidence of P. W. 9 S. I. Banahatti. that he did not know why he had come to Jamkhandi Police Station on that day. Assuming that he was present in the Police Station along with P. W. 4. their evidence cannot be accepted straightway but requires careful scrutiny. The accused when examined under Section 342, Criminal P. C. has stated that there was some ill-will between him and P. W. 4 in respect of allotment of duties, that when he went to the Police Station on 8-5-1970 at about 5-30 D. m. to take a chit from him (P. W. 4) to go to the Hospital for treatment of the injury sustained by him on his right thumb he was falsely implicated, and that he had not taken any liquor nor was he incapable of taking care of himself at that point of time. He has stated that he had taken some alcoholic medicine, as he had sustained some injury on his right thumb. P. Ws. 4 and 9 have stated that the accused came to the Police Station shouting, using abusive language and when examined him they found him drunk and was incapable of taking care of himself.
In order to test whether these two witnesses are stating truth or not one has to refer to the evidence of the medical Officer who has been examined as P. W. 2 in this case. His evidence case to show that he examined the accused-petitioner at about 7-30 p. m. on 8-5-1970 and found that the accused was in normal condition and had sustained a compound fracture on the right thumb and the accused was in great pains. He has also stated that the accused was smelling alcohol, but has stated that he was not under the influence of alcohol.
5. From the facts stated above it has to be seen whether the accused had taken liquor or not. Assuming the case of the prosecution is true that the accused had taken liquor due to the pain on account of the injury that he had sustained on his right thumb, he has neither used any abusive language nor was incapable of taking care of himself. It may be mentioned here that the accused probably might have behaved abnormally in .the Police Station on account of the pain in his right thumb, but that itself is not sufficient to convict the accused under Clause (1) (p) of Section 92 of the Act. What is punishable under the Clause (r) is. a man must be drunk and incapable of taking care of himself in a street or a place of public resort. It is not necessary in this case to decide whether the Police Station is a public resort, because the prosecution have not proved the most essential ingredient that the accused was drunk and was incapable of taking care of himself. Further the conviction against the accused cannot be sustained because the offence under Clause fl) (p) of Section 92 of the Act is made punishable only when the act to which the clause refers is committed in contravention of a notification in the official gazette by which the provision of Sub-clause (p) of Section 92 (1) are extended to local area : that clause reads thus:
92. Punishment of certain street offences and nuisance:
(1) In any local area to which the Government by notification in the official Gazette from time to time extends this sub-section or any clause thereof. Whoever, contrary thereto. - xxxxxxxx
(p) is drunk and incapable of taking care of himself in a street or place of public resort : xxxxxxxx
(r) uses in any street any threatening, abusive or insulting words or behaviour or posts up or affixes or exhibits any indecent, threatening, abusive or insulting paper or drawing with intent provoke a breach of the peace or where-by a breach of the peace may be occasioned:shall be punished with fine which may extend to one hundred rupees, provided that imprisonment in default of payment of such fine shall not exceed eight days notwithstanding anything in Section 67 of the Indian Penal Code.
It is therefore clear that in order to convict a person under Sub-clause (1) fp) of Section 92 of the Act. what is essential for the prosecution to establish is that the provisions of Sub-section (1) of Section 92 of the Act. had to be extended by the Government by a notification in the official gazette to a particular area and that the act was committed by the accused in contravention of the notification. It is clear from the words 'on the contrary thereto' with which Sub-section (1) concludes. The prosecution in this case have produced no notification which could be said to have been contravened, even if the evidence of P. Ws. 4 and 9 could be accepted. Apart from the infirmity, no notification making, applicable the provisions of this part of sub-clause to the particular area not having been produced the evidence on behalf of the prosecution is highly interested and unsatisfactory to convict the accused under Clause (1) (p) of Section 92 of the Act.
6. For the reasons stated above. I allow this revision petition, set aside the conviction and sentence passed against the accused and acquit him. Fine, if paid, will be refunded.