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Shander or Shanker and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All552; 155Ind.Cas.185
AppellantShander or Shanker and ors.
RespondentEmperor
Excerpt:
- - i am by no means satisfied that the decision) of the lower appellate court is wrong. in the present case it appears to me that the circumstances justified the inference that the applicants had this knowledge, and that the plea of ignorance is not made in good faith, or it would have been made at once......held that a municipal area, or a city are not sufficiently precise. but the areas specified in the present notice are obviously much more precise, and although this is a point that might be argued in appeal. i am by no means satisfied that the decision) of the lower appellate court is wrong. it has next been argued that as the, applicants are themselves residents of one of the areas specified in the notice, they cannot be said to be frequenting that area. to live in an area is of course to frequent it, though a resident would ordinarily be said to reside in and not to frequent his part of the city. it has also been argued that although a number of brickbats were collected, it has not been definitely proved that the applicants collected them there, and that although the evidence showed.....
Judgment:
ORDER

Kendall, J.

1. The present applicants have been convicted by a First Class Magistrate of Agra, of an offence under Section 188, Penal Code, and that order has been maintained by the lower appellate. Court. The facts briefly are that the applicants were caught throwing bricks at the houses of theiir neighbours. There were eleven of them, and at this period the relations between the Hindus and Mahomedans of Agra City, were very strained, and consequently a notice had been promulgated under Section 144, Criminal P.C., preventing the members, of the public when frequenting1 or visiting certain places within the 'Municipal area, from collecting bricks, carrying sticks, etc., or missiles and gathering in public places, etc. A number of arguments have been addressed to me in support of the present application for revision, but they are of a purely argumentative description.

2. It has been said that as the notice-under Section 144 was addressed to the 'public when frequenting or visiting' these specified areas, it was not sufficiently precise. I have been referred to one or two decisions in which it has been held that a Municipal area, or a city are not sufficiently precise. But the areas specified in the present notice are obviously much more precise, and although this is a point that might be argued in appeal. I am by no means satisfied that the decision) of the lower appellate Court is wrong. It has next been argued that as the, applicants are themselves residents of one of the areas specified in the notice, they cannot be said to be frequenting that area. To live in an area is of course to frequent it, though a resident would ordinarily be said to reside in and not to frequent his part of the city. It has also been argued that although a number of brickbats were collected, it has not been definitely proved that the applicants collected them there, and that although the evidence showed that they were throwing brick bats, there was nothing in the notice to prevent them from throwing these brickbats, although they were forbidden to collect them or to carry them, This is only a quibble. Before throwing the missiles the applicants must have lifted them, and I presume that lifting comes under the definition of carrying.

3. The only ground that has been given me which, calls for serious consideration is that the applicants had no knowledge of the promulgation of the order under Section 144, Criminal P.C. It has undoubtedly been held by the Calcutta and the Lahore High Courts that it is not sufficient for the prosecution to prove that an order has been promulgated to succeed in obtaining a conviction under Section 188. Under that section:

whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, etc., disobeys such direction, shall be punished.

4. The question of whether tile person has knowledge of the order promulgated must be a matter of evidence, and in the present case we know that the order had been promulgated for several weeks, that there had been disturbances in the city, and that notices containing the order had been posted up at various places in the city. It is scarcely conceivable that the applicants had no knowledge of the order passed. Not one of them pleaded I ignorance of the order when he made his statement in the Magistrate's Court I though this plea was taken by some of them in the written statements subsequently filed. It was not however made one of the grounds of appeal to the Sessions Judge, nor was it apparently argued before him. The prosecution cannot be expected to prove everything that takes place the minds of the accused. They can only prove the circumstances which will enable the Court to infer either that the accused knew of the order or that the accused did not know of it. In the present case it appears to me that the circumstances justified the inference that the applicants had this knowledge, and that the plea of ignorance is not made in good faith, or it would have been made at once.

5. There appears to me to be no substance in any of the arguments for the applicants. The application is therefore dismissed.


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