1. In this case Mahadeo Singh, Mahabir Singh, Harnarain Singh and Dipnarain Singh, Thakurs, residents of Jhingurpatti in the district of Mirzapur, have been sentenced by the District Magistrate of Mirzapur to undergo imprisonment for a period of twenty months each under Rule 29 of the rules framed under Section 2 of the Defence of India Act, No. IV of 1915. The rule which they are alleged to have contravened is No. 23, which runs as follows: 'No person shall dissuade, or attempt to dissuade, any person from entering the Military or Police Service of His Majesty.' The facts of the case, which I find to be established beyond question, are that Musai Pasi of Jhingurpatti is a sub-tenant of two of the accused persons, namely, Mahadeo Singh and Harnarain Singh, and that be has also worked as a ploughman for all the accused. On March the 4th, 1918, Musai was recruited in the Bandel corps for service in Mesopotamia and received an advance of Rs. 25. On April the 2nd, 1918, Mahadeo Singh and Harnttrairi Singh sued Musai, as their sub-tenant, for arrears of rent for the year 1324 Fasli, amounting to Rs. 30-15 0 plus interest. On the 8th of April 1918, Musai, having previously made some statement to the Recruiting Officer, Mr. Branford, appeared before the District Magistrate of Mirzapur. The record of this case commences with a statement recorded in English by the District Magistrate as made to him by Musai on that date The statement is not made on oath and is not signed by Musai, Then follows an order in the District Magistrate's hand, and signed by him, directing warrants without bail to issue for the arrest of these four accused persons and an order for the summoning of certain witnesses. The District Magistrate took up the case himself on the 22nd of April 1918. He framed a charge on the 13th of May and he convicted and sentenced the accused on the 15th of May, after having heard their defence witnesses. The conviction and sentence have been affirmed by the Additional Sessions Judge on appeal and the matter. has been brought before this Court in the exercise of its revisional jurisdiction.
2. The proceedings in the Court of the District Magistrate were certainly irregular in their initiation. If the Magistrate conceived himself to be taking cognizance of this offence upon information received from Musai within the meaning of Section 190 (c) of the Criminal Procedure Code, he was bound to offer the accused persons the option of being tried by another Court, as provided by Section 191 of the same Code. If, on the other hand, the statement of Musai with which this record opens is the complaint in the case, upon which the District Magistrate proceeded to take cognizance, he was bound, before Issuing warrants, to take from Musai a sworn declaration that he had spoken the truth in the complaint made by him and to have obtained the signature of Musai to that sworn declaration. A further question has been raised as to the application in this case of rule No. 30 of the rules in question. In view of the exceptional powers conferred upon the authorities by the Statute, and by the rules under consideration, I think that the Courts are entitled to require strict compliance with all the provisions introduced into the rules by way of safeguarding the liberty of the subject. The District.. Magistrate ought, strictly speaking, as soon as he decided that action was called for on the information which Munai had given, to have recorded a formal proceeding, intimating his opinion that the initiation of a prosecution against the persons implicated in Musai's statement was advisable. If he had done this, and had also made up his mind definitely whether he - was taking cognizance of the matter upon a complaint, or merely upon information received, he would probably have gone on to consider, whether the interests of justice required that he should try the case him. self. I do not say that I should necessarily have interfered in this, matter if I had no other exception to take to the proceedings in the Courts below than the irregularity of their initiation. As a matter of fact, however, it seems to me that these proceedings have been misconceived in essential particulars. The rule under which the applicants have been convicted is not the rule applicable to the facts stated in the charge. Musai had enlisted, that is to say, had entered the Military Service of His Majesty, on March the 4th, 1918, and all the facts alleged in the charge are subsequent to that date. It is contrary to the genius of the English language to hold that one person can 'dissuade or attempt to disuade' another from doing something which the latter has already done. It is arguable that the Courts below might have acted, or may have conceived themselves to be acting, upon a statement made by Musai, to the effect that threats had been addressed to him prior to his enlistment with a view to dissuading him from taking that course. It also seems to have been present to the mind of the District Magistrate, and of the Additional Sessions Judge, that the accused might be liable to conviction on the ground that they had dealt with Musai in a certain manner with the object, not of dissuading Musai himself from enlisting, but of discouraging Other persons from following his example. Finally, it may be argued that the accused specified in the charge might under certain circumstances be held punishable under Rule 24, though not under Rule 23, if the Court were satisfied that they had attempted to induce Musai to fail in his duty as a person in the Military Service of His Majesty by refusing to fulfil the engagement which he had taken upon himself at his enlistment. I mention these points to show that they have been considered by me before disposing of the case; but I think it sufficient to say that if the accused had been tried on charges suggested by any one of the three lines of argument above self forth, not only would the charge have required to be differently framed, but also the prosecution would have been faced with other and serious difficulties before any Court could have felt justified in holding the suggested offences or any of them, proved by the evidence on the record, it has, of course, been necessary for me to subject the entire record to a careful examination' before I could form any final opinion about the merits of this application. I cannot help remarking that in the reasoning which has satisfied both the Courts below that the evidence on the record, which is certainly scanty and is admittedly discrepant in some important particulars, was sufficient to prove certain facts against the accused persons, there seems to me one fairly obvious and somewhat serious flaw. Most of the points suggested in favour of the accused persons have been put aside in the Courts below, with the remark that there seems no adequate motive for Musai in bringing this accusation if it is not true, or at least founded on fact. I take it on myself to suggest that a very possible explanation of all the evidence on the record, and one which meets most of the difficulties suggested on both sides, would be that Mahadeo Singh and Harnarain Singh thought themselves justified in bringing pressure to bear upon Musai to pay up his arrears of rent before he left the country, and that Musai strongly resented their doing so. There is only one other point on which I think it fair to say a word or two. Both the Courts below have taken it to be proved that the four accused persons first succeeded in obtaining by threats of violence from Musai's wife a sum of Rs. 25 on account of the arrears of rent them, and that subsequently Menisngh and Harnarain Singh sued Mussammat arrears of rent without giving any credit for this payment of Rs. j. If this were proved by the evidence, the accused, or at--least Mahadeo Singh and Harnarain Singh, would deserve to be prosecuted for an ' offence punishable under Section 209 of the Indian Penal Code, and it might' lie my duty to go further into the matter from this point of view. It seems to me, however, that the evidence on which the Courts below have found that Musai's wife actually handed ' over Rs. 25' to the accused persons is of the slenderest, and I have ascertained, by going a little outside the record, a fact which the accused persons should have taken the trouble to have brought upon this record namely, that Musai did not defend the suit for arrears of rent and made no attempt to prove that the major portion of the claim had been satisfied by a payment of Rs. 25 obtained by Mahadeo Singh and Harnarain Singh from his wife. In my opinion, therefore, it is useless to pursue this matter further. The conduct of the accused persons was not particularly creditable to them, and may have been worse than anything that appears to' be clearly proved by the record, but they have undergone very nearly three months' rigorous imprisonment in consequence, and the District Magistrate may perhaps feel that, whatever order this Court may now pass, the proceedings instituted by him have served a useful purpose. I do not wish to say anything to deprive him of that satisfaction. On the contrary, I think it fair to say that I fully recognise the fact that he acted in all good faith in the public interests. The conclusion I come to is that the four applicants have been convicted an a charge which is not supported, by the evidence on the record and which is in fact bad in law, inasmuch as the facts alleged therein did not amount to an offence punishable under the rule therein quoted. Any farther examination which I have made of the record and any further comments which I have passed on the evidence, are merely directed towards the question of the propriety or otherwise of ordering further proceedings to be taken after setting aside this conviction. The remarks which I have made are, I think, sufficient to explain my reasons for contenting myself with quashing these proceedings, without passing any further order. The result is that I set aside the conviction and sentence in this case, acquit the four applicants of the offence charged, and direct that they be forthwith released.