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Kanhaiyalal Dongarwal Vs. Sugansingh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1961CriLJ875
AppellantKanhaiyalal Dongarwal
RespondentSugansingh and anr.
Cases ReferredSupdt. Central Prison Fatehgarh v. Dr. Ram ManoharLohia
Excerpt:
.....or get the government to implement them, within a particular date and upon their failure, to start satyagraha. they -the satyagrahis -complained to me about the conduct of the police. any unjustifiable obstruction to this would certainly meet with the disapproval of the courts, and with punishment for contempt in bad cases. but assuming it, while preparing to defend them and obtain copies and the like, he does something which, certainly creates the reasonable apprehension of his design to commit a cognizable offence. a movement like this, that is, inciting the satyagraha or march on the public offices has to be stopped as once; otherwise, what starts as a show by half a dozen men in garlands and teeka, may become a violent public demonstration in the manner that is only too well known in..........on that day (and in view of his earlier activities in connection with this so-called socialist party's satyagraha) create a reasonable belief in the mind of the police officers on duty at the collectorate that he was party to a design to commit a cognizable offence? if he did so, they would have failed in their duty not to have arrested him only because of his being a member of a learned, highly organized and influential profession. whether the story of his going to defendramchandra sharma and otherswas genuine or a pretence has no bearing on this. nor would it matter in-the least whether, after the arrests, government proceeded with severity or soft-pedaled their steps to control and punish the satyagraha. however, the case has been argued by both parties with considerable.....
Judgment:

H.R. Krishnan, J.

1. The petitioner Kanhayalal Dongarwal is an advocate usually residing at Neemuch and a leading member of the Socialist Party. He was arrested on the 16th. January 1959, in course of a demonstration before the collectorate at Mandsaur, by a number of people calling themselves 'satyagrahis' in a movement sponsored by the Socialist Party. The arrest was under Section 151, Criminal Procedure Code as according to the Station house officer Sugansingh (opposite party No. 1), all of them including the petitioner were designing to commit a cognizable offence, namely, forming an unlawful assembly, and committing house trespass into the office of the Collector, without any legitimate business there, and with the intention of causing annoyance to those on duty there. After the arrest, the petitioner was taken in a police lorry to the police station and was on the 17th produced before a magistrate. Later on, he Was proceeded against under Section 107, Criminal Procedure Code; and as things settled down and the so-called satyagraha fizzled out, the proceedings were dropped about a year afterwards.

2. The petitioner filed this application, on the 20th January alleging that there was no reasonable cause or justification for his arrest and the police officers, in particular, Sugansingh opposite party No. 1, and his immediate superior, the Deputy Superintendent of Police -- Opposite Party No. 2 -- were acting mala fide with a view to deter him from defending Mr. Ramchandra Sharma pleader, Neemuch, who had been arrested on the previous day 15th for offering satyagraha, and who had given the petitioner a, power for appearance in the Court. He further alleges, he informed the officers that he was at the Collectorate not to offer satyagraha, but to defend some accused persons, but they paid no heed, and all the same arrested and took him away. This, according to the petitioner, is an act of contempt of Court on the part of the police officers and he has accordingly prayed that they should be committed for this and adequately punished.

3. Rule being issued, the opposite party has shown cause and has taken the position that from the petitioner's conduct on that day, and against the background of his earlier activities in this connection, it was clear that he was instigating and encouraging the Satyagrahis, and as such, was party to the design of committing the cognizable offences already mentioned. Therefore, it is contended, the officers were discharging their duty in arresting him under Section 151; they had Ho ulterior purpose or the least intention of obstructing any fair trial.

4. The crucial question in this case is simple; Did the petitioner, by his conduct on that day (and in view of his earlier activities in connection with this so-called Socialist Party's satyagraha) create a reasonable belief in the mind of the police officers on duty at the collectorate that he was party to a design to commit a cognizable offence? If he did so, they would have failed in their duty not to have arrested him only because of his being a member of a learned, highly organized and influential profession. Whether the story of his going to defendRamchandra Sharma and others

was genuine Or a pretence has no bearing on this. Nor would it matter in-the least whether, after the arrests, Government proceeded with severity or soft-pedaled their steps to control and punish the satyagraha. However, the case has been argued by both parties with considerable elaborateness and ability and has not been without a certain amount of publicity.

5. The facts are also simple and except for one or two points of detail, practically common ground. The petitioner lives at Neemuch and appears at the law Courts there, while at Mandsaur -- which place one reaches in about one or two hours by bus, he gets an occasional professional engagement, according to him, once or twice in the month. Sometime in December 1958, a printed leaflet was circulated by the Socialist Party in that district of which the petitioner is an active member, signed by Narayansingh, 'Director of the Action Committee' of that party and further signed by other members, headed by the present petitioner. No. 4 among these members is Ramchandra Sharma also belonging to Neemuch Cantonment. The leaflet set out 27 demands, 23 of them to Government presented through the Collector, and 4 to the Collector himself.

The plan was to present these demands to the Collector formally, presumably, by handing over a copy of the leaflet, then call upon him to implement them or get the Government to implement them, within a particular date and upon their failure, to start satyagraha. This meantjail going and the Action Committee was to compile a list of prison-pilgrim (jail-yatris) and also to collect money and grain for the support of theprison-pilgrims, presumably, to keep their 'family fed during their absence in jail. The point is that the petitioner is one of the sponsors - which he admits, though in a half hearted and evasive manner. The police evidence is that the petitioner was actually there at the collectorate when the demands were presented. But the petitioner denies it. He was the sponsor No. 2 of the movement and his presence is very likely. However, it is not of much consequence for our purposes, as nothing particular happened on the 9th; at any rate, the prison pilgrimage was not scheduled to start on that day.

6. Coming to the 15th, it: is common ground that a batch of Satyagrahis as they called themselves wearing teeka and garlands, presented themselves at the collectorate between, midday and 1-0 p.m. They included Ramchandra Sharma a pleader of Neemuch who went to Mandsaur for that performance. The petitioner admits that he went to Mandsaur from Neemuch on that day though his account of the time and purpose is different. He begins by saying that he went that day on professional work, which is of course incorrect, as he himself admits that he Is unable to name the client or the case. In fact, his assertion that he went at4-0 p.m. belied the story of professional work, because no Court begins to work at 4-0. On the other hand, the statement of the police officer that he was present when the satyagrahis came to the collectorate, is far more likely in view of his connection with the movement.

The leader of that day's batch Shri Ramchandra Sharma was himself a pleader from Neemuch. The petitioner did'covert act in connection with, the satyagraha, and so, was not arresed. That day's batch was arrested, put up for trial and convicted on a plea of guilty. The point to note is that on the 15th, the petitionerwas admittedly at Mandsaur, and the very nature of his statement lends support to the account given by the officers that he was there to watch the satyagraha and had no professional work at hand. It is conceivable, however, that he wag there ready to render professional help if wanted a sort of legal red-cross in the non-violent battle for the twenty-sevendemands.

7. On the 16th, there was another batch which started at some place not far from the town police station, and marching in procession through the streets, arrived at the collectorate at about 12 noon or 1-0 p.m., the usual time for satyagraha. Meanwhile, the police officers that is, the station house officer (Sugansingh) and a number of police constables and the Deputy Superintendent of Police had come direct to- the collectorate. It was office time and the Collector and his staff were at work. The police stayed on the verandah or at the door, while nearby there was a chaprasi also watching. The collectorate at Mandsaur is itself part of a block of buildings where most. If not all of the law Courts are housed-a locality usually crowded and of much activity on weekdays during office hours. When the batch of Satyagrahis wearing their special insignia arrived in front of the collectorate, the petitioner was admittedly there near about on the verandah or just outside.

It is unnecessary to go into an elaborate discussion about the exact pinpoint position of each of the persons concerned. The petitioner was at that time in the lawyer's uniform with bands and black coat and wag carrying in his bag a number of blank vakalatnamas and one vakalatnama signed by Ramchandra Sharma -- one of the satyagrahis arrested on the previous day. In addition, he had other things, including forms for enrolment of prison pilgrims. When the petitioner was there, the Satyagrahis wanted to enter the collectorate and were stopped by the police and not allowed to go in.

8. It is proper to describe the petitioner's part in his own language.

They -- the satyagrahis -- complained to me about the conduct of the police. Thereupon I offered legal help if they so desired.... It is hot correct to say that the batch was hesitating to go into the collector's office and that I encouraged them. I said to the police officer who was obstructing them that they had a right to go in and that he should not stop them. I did not ask the demonstrators to ask the Sub-Inspector under what legal provision he was stopping them.

When attention was drawn to a statement by him on an earlier occasion, he admitted that:

The police people stopped them (Satyagrahis). I was standing very near. Then Mangalsingh and others (Satyagrahis) called me and I said, to them 'You ask the police under what law they are stopping you from going inside and if they still stop you in this illegal manner, take action against them under the law'. They signed my vukalatnsma(Vakil-patra) ...At that time, Narayansingh was also near me.... The police officers went inside and returned and then when I was just going to enter thecollectorate, they arrested me and Narayansingh.

9. Between this and the version given by Sugansingli there is not much difference. The latter says

On the I6th, one batch again came from Neemuch to Maiidsaur. The peon at the door stopped them and asked them not to get in, in a body; but any one of them could go to see the Collector. They would not listen. I was present and I too, persuaded them not to create noise. Mr. Dongarwal (petitioner) who was there, said to the batch 'Ask the police why they do not allow you to go in and way what law they are stopping'. He further said that -- 'In case you feel that they are acting contrary to the law, you should lawfully proceed against them'. Mr. Dongarwal also similarly asked by what law I was stopping them from entering the Collector's office-roomWhile this much is common ground, the following part of the officer's account is not admitted by the petitioner:

The members of the batch hesitated to go in, Mr. Dongarwal thereupon physically pushed.

10. But the petitioner does state that at that moment he also tried to enter. The conduct and the language of the petitioner, apart from this physically pushing in the Satyagrahis, are sufficient to justify a belief that the petitioner was inciting the Satyagrahis to commit the offence of house trespass and also of membership of an unlawful assembly. In fact, with this object, he would be a member of that assembly which already consisted of more than five. In view of the petitioner's previous activities in regard to the so-called Satyagrahi and his presence on the 15th when the first batch offered Satyagraha and was arrested, his presence on the l6th was by itself sufficient to justify a belief that he was there to encourage and incite them. If there was any doubt, the part he admittedly played removed it. It was not an unconnected onlooker who was asking the police under what law they were stopping the satyagrahis' march into the collectorate, but the very prompter of the Satyagraha movement and the person who was enrolling these jail pilgrims. It is too much of a coincidence that the petitioner should try to enter exactly when the others were trying to do so. So, the petitioner was not only encouraging the satyagrahis by words, but was also acting a3 one of them. As for the pushing, I believe it; in fact, in that context, it would be almost a reflex action without his own direct consciousness; but even without it, the part which the petitioner himself admits, justifies belief of his design to commit a cognizable offence.

11. The petitioner has emphasized what is very probable that he was carrying not only blank vakalatnama but at least one signed by some satyagrahi. He was also carrying blank forms for enrolling jail-gcers; but for obvious reasons he does not, want to emphasize it. Ho might have been present as he himself admits, there 'ready to offer legal help if and when arrests were made. Let us assume that he was there with a genuine purpose of giving legal assistance to persons arrested or convicted for the satyagrah; still, it does not give him immunity from arrest for anything done by him against law, or something which creates a reasonable apprehension in the minds of the police officers on duty that he was designing to commit a cognizable offence. At times, it may turn out that a person arrested under Section 151 does not really design or prepare to commit a cognizable offence, and the police are mistaken. Even then, if the police are acting under an honest impression or on data and appearance from which a reasonable man would infer the design or possibility of the commission of a cognizable offence, then arrest is justified.

The Courts are certainly interested in seeing that persons on trial before them are able to get] legal assistance from members of a profession specially trained and licensed to give it. Any unjustifiable obstruction to this would certainly meet with the disapproval of the Courts, and with punishment for contempt in bad cases. On the other hand, simply because a lawyer is going to defend an accused person, he is not entitled to any privilege or freedom from arrest if he commits an offence. As stated in the case reported in Homi Rustomji Pardiwala v. Sub-Inspector Baig AIR 1944 Lab. 196(SB), no one can possibly suggest that a policeman who arrests a counsel thought to be guilty of a murder while he was on his way to court to appear in a ease, would be guilty of contempt. Assuming that the petitioner was honestly preparing to defend a client, he would still be liable to arrest if he committed any act justifying such a course.

12. As stated in the Lahore case, there may conceivably be cases where the arrest for an act done by counsel is made in circumstances and in a manner that are particularly humiliating or disproportionately violent, simply because he was at that time going to defend somebody. In such a case, it might be necessary for a Court to ascertain the dominant motive for the arrest - whether it was primarily the commission of the act actually committed or reasonably believed to have been committed, or the preparation to defend a particular accused. Conceivably, a police officer who arrests a person for a particular offence at a time and in s, manner which are in themselves unreasonable, simply because he is going to defend somebody, may be guilty of contempt; but that position does not arise here.

Here, for one thing, the petitioner's conduct is such that one might even wonder if his going to defend the Satyagrahis was really true. But assuming it, while preparing to defend them and obtain copies and the like, he does something which, certainly creates the reasonable apprehension Of his design to commit a cognizable offence. A movement like this, that is, inciting the satyagraha or march on the public offices has to be stopped as once; otherwise, what starts as a show by half a dozen men in garlands and teeka, may become a violent public demonstration in the manner that is only too well known in the recent history in our country. Be that as it may, the arrest had to be made and was made immediately on the spot.

13. The case is not at all analogous to the Lahore one quoted already or as for that matter, the two other cases cited on behalf of the petitioner. In the case reported in Rajasthan Bar Council v.Nathuram AIR 1956 Raj 179, the lawyer defending an accused had had previous discussions and differences with the police in regard to a certain course of action to be taken in the case itself. He was conducting the criminal case in the Magistrate's Court and in the middle of the case, he had momentarily gone out of the Court-room preparing to return within a few minutes; then the police officer arrested and handcuffed him and took him away to the thana. There, the Court found on the facts that it was an interference with the administration of justice and accordingly committed the officer for contempt. At the same time, it made clear that the mere arrest of counsel in Court premises does not amount to contempt unless there is something more. This case is not at all analogous to the Rajasthan case, In the Allahabad case reported in Dr. Ram Manohar Lohia v. Superintendent, Central Prison,Fatehgarh (S) : AIR1955All193 and disposed of in the Supreme Court appeal reported in Supdt. Central Prison Fatehgarh v. Dr. Ram ManoharLohia : 1960CriLJ1002 , the position was altogether different. A particular section of politicians was going about inciting tax-payers not to pay land revenue. A law (U.P. Special Powers Act) had been enacted to meet the situation and the vires of that law was in question.

14. A certain amount of the argument has centered round subsequent happenings and a statement in the affidavit of opposite party No. 1 which is not quite correct. Actually, they have no bearing on the question we are really dealing with. The batch that was arrested on 15th was convicted tinder Section 480 Criminal Procedure Code. The third batch on the 17th was prosecuted on formal charges and also convicted. The second batch of 16th which included the petitioner and Narayan singh -- the Director of the Action Committee, was not prosecuted for any substantive offence, but was proceeded against under Section 107 Criminal Procedure Code. In the affidavit, the officer has stated in continuation of his account of the incident of 16th that subsequently, this batch was prosecuted for certain substantive offences. He admits that it was incorrect and was a mistake resulting from confusion between the batch of 16th and the batch of I7th.

The fact is that for reasons which we do not know and with which we are not concerned, Government thought fit to deal with this batch under the preventive section. This meant soft-pedaling and as time passed, Government thought fit to drop the proceedings. These are matters of policy and there is no point in hammering the Sub-Inspector about why this course was taken in regard to this batch, what the instructions of the Government were, and the like. We are concerned with the state of affairs at mid-day of the 16th in front of the collectorate and not with the subsequent policy decisions on the part of the Government or any other authority. On that day, the petitioner who may or may not have been preparing to defend somebody, committed certain acts which in that context, fully justified the arrest.

15. The petitioner has alleged that as soon as the police officer arrested him, he told them that he had not come there for the satyagraha, but to get copies for certain clients whom he was defending. This may be true. But having seen what the petitioner was doing the officer was not prepared to let him off. In fact, it was not his concern whether or not the petitioner was going to defend somebody; but it was his concern whether the acts the petitioner was doing, amounted to the design which called for action under Section 151 Cr. P.C.

16. The petitioner has also stated that the Bar Association Mandsaur, which according to him includes -- as well it might-a large number of members unconnected with the Socialist party, had passed a resolution condemning the arrest. This may be perfectly true; but it is altogether of no bearing on the question before us. The Bar Association like any other association of professional men, is certainly entitled to take such action as it feels proper for safeguarding the interests of its members. But here, the question is one of evidence in regard to a particular happening. The foregoing discussion shows clearly that the arrest was justified. I would, in fact, go a step further and hold that the officers would have been failing in their duty if merely because one of the persons involved was a member of a profession, that is both highly organised and influential, they allowed themselves to be frightened and failed to make arrest which they otherwise would have made.

17. The petition is without substance and is accordingly dismissed with costs payable by the petitioner to opposite party No. 1, of 200/- (Two hundred).

V.R. Newaskar, J.

18. I agree.


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