R.K. Das, J.
1. The positioners have been convicted under Section 7(1)(b) of the Criminal Law Amendment Act. 1932 (XXIII of 1932) and each sentenced to pay a fine of Rs. 100/- in default to undergo R. I. for two months.
2. The petitioners are said to be members of Sanjucta Socialist Party. The party gave a mandate to observe Hartal on 25-9-64 throughout India as a protest against the rising prices The prosecution case is that on that day the petitioners approached P. W. 1 Dinabandhu Ghosh and requested him to close his grocery shop at Bahalada Bazar P. W. 1 having refused to do so the petitioner Satyakumar dragged out from his shop some tin pots containing some grocery articles. When P. W. 1 got up from his sitting place inside the shop, both the petitioners pushed him inside and forcibly shut the shop door. P. W. 1 sent for Police An A. S. I. and a constable arrived at the spot and arrested the petitioners. Then a prosecution report was submitted against the petitioners under Section 7(1)(b) of the Criminal Law Amendment Act. 1932 (hereinafter mentioned as the 'Act') by the Officer-in-charge. Basta Police Station, within whose jurisdiction the occurrence took place.
3. At the trial the plea of the accused was one of a complete denial of the occurrence. They, however, examined no witness in support of their case.
4. The prosecution examined a number of witnesses including P. W. 1. the owner of the shop where the occurrence is alleged to have taken place. PWs. 1 and 3 are also witnesses to the occurrence. P. W. 4 is the officer-in-charge who submitted the prosecution report P. W. 5 is the A. S. I. of Police who was on duty along with a constable near about the place of occurrence.
5. The trial court accepted the prosecution story and convicted the accused under Section 7(1)(b) of the Act and sentenced both the petitioners as hereinbefore stated. The conviction and sentence having been upheld on appeal before the Sessions Judge, the petitioners have preferred this revision.
6. Mr. Kundu, learned counsel for the petitioners mainly contended that the facts as disclosed in the prosecution report at best may make out a case either under section 352 or under Section 447, I. P. C. and not a case under section 7(1)(b) of the Act and in any event, no case can be said to have been made out against Gopal Chandra Kundu. petitioner No. 2.
7. It is well established on evidence that P. W. 1 Dinabandhu Ghosh holds a grocery shop in Bahalda bazar near Basta P. S. The evidence of P. W. 1 discloses that on 25-9-64 at about 4.30 p.m. the accused Satya Kumar Kundu asked him to close his shop and on his refusal to do so. the accused Satyakumar dragged out certain articles from his shop and both the accused forcibly closed his shop. This part of the storv of P. W. . 1 gets corroboratlon from the evidence of P. W. 2. P. W. 2 went to purchase some articles such as Dal and potato and while returning from the shop of on Gokuiananda, he saw the two accused persons pushing P. W. 1 inside his shop a nod trying to shut the shop door They insisted upon P. W. 1 to close his shop. To the same effect is the evidence of P. W. 3, except that he says that the petitioner Gopal was not there, but he was in his office at a distance of five cubits from the shop.
P. W. 5 A. S. I. was on his duty in Bahalda bazar and at about 4.30 p.m. he found the accused persons coming to the shop of P. W. 1 and forcing him to close the shop. He was at a distance of 20 feet. He found the accused persons creating disturbance He arrested them, brought them to the Police Station and noted this fact in the station diary (Ex. 1). On the basis of this evidence, both the courts found that the petitioners forced P. W. 1 to close his shop and obstructed him in carrying on his usual business at this shop at Bahalda bazar. The prosecution report concerned was also clearly stated therein that the accused persons pushed him (P.W.1) inside his shop while tried to close the shop forcibly.
8. Thus, the prosecution report not only mentions about the forcible closure of the shop by the accused persons, but also about the fact of P. W. 1 being pushed into his shop. It was on the latter part of the allegation it was argued that the offence mentioned in the prosecution report essentially discloses an offence under the Penal Code and not one under the Act. No doubt, so far as the pushing of P. W. 1 is concerned, it may amount to an offence under section 352 or that the entry of the petitioners into the shop of P.W.1 may amount to an offence under section 447. I. P. C., but from the allegation made in the prosecution report, It is also clear that the petitioners were alleged to have forcibly closed the shop of P. W. 1 when the latter refused to observe the Hartal on 25-9-64. The act of giving a push to P. W. 1 at the time of forcible closure of the shop forms but one act and cannot be disentangled. It was urged that no Magistrate can take cognizance of an offence punishable under section 7, unless facts constituting such offence find place in the prosecution report and a case reported in AIR 1943 Mad 572 in Swaminatha v. Ramanatha was cited from the Bar. The decision however is not applicable to this case. In the prosecution report, however, the particular facts alleged to constitute the offence under Section 7, such as forcible closure of the shop and obstruction to business, etc. was clearly mentioned.
9. The next question is whether the act committed by the petitioners or any of them would amount to an offence under section 7(1)(b) of the Act makes it an offence for any person who loiters or does any similar act at or near the place where a person carries on any business in such a way and with intent that any person thereby be deterred from entering or approaching or dealing at the place. The contention of the learned Counsel for the petitioners is that even if the finding of the courts below is accepted that the accused persons forced P. W. 1 to close his shop, there if nothing to show that P. W. 1 was debarred from carrying on his business. The evidence of the prosecution witnesses clear establishes that on the date of occurrence, the accused persons tried to close the shop of P. W. 1 by use of force and in that attempt even went to the extent of using force against him and pushed him. No doubt, no customer has been examined to prove that he was deterred or debarred from entering the shop of P. W. 1 as pointed out by the learned counsel for the petitioners. It is however, not necessary for the prosecution to make out a case under Section 7(1)(b) that any of the intending customers were, in fact, obstructed from having business dealing with him and entering the shop of P. W. I, nor is it necessary for the intending customers accosted to be examined to make out a case under that provision (see AIR 1952 Mad 95 In re Vengam).
10. It was urged that there can be no conviction Under Section 7 of the Act in the absence of any evidence of the petitioners loitering at the shop of P. W. 1. The word 'loitering' has not been denned in the Act. According to the Dictionary meaning, it means 'moving about with frequent pauses, hanging about and doing nothing, etc.' In a case reported in AIR 1951 Bom 459 In Damodar Ganesh v. State, it was held that stationing oneself at or near the gate of an establishment and doing noting connected with one's occupation would constitute 'loitering' with the meaning of Section 7(1)(b) of the Act.
11. Mr. Kundu, learned counsel for the petitioners relying on a case reported in 37 Cri LJ 10 (Nag) in Radha Kissan v. Emperor, contended that in order to commit an offence under Section 7 of the Act, there must be proof of the fact that the accused persons were loitering at or near the place where a person carried on business, with the intent that any person thereby be deterred from dealing at such place and the intention of the petitioners here was not to deter anything from carrying on any business, but to request the shop-keepers to close the shop in protest the soaring rise of prices The aforesaid decision has no application to the case and is clearly distinguishable In that case, the accused persons merely distributed some hand-bills A man carried a flag and another a placard bearing the words 'not to wear and purchase Pardeshi cloth and that foreign cloth should be completely boycotted' In that context, it was held that 'halting for the purpose of distributing hand-bills and announcing the holding of a meeting cannot be interpreted as being done with the object of deterring a prospective purchaser from entering or dealing at any particular shop near which the halt was made
A procession singing boycott songs may have the effect of deterring people generally from buying foreign cloth at future time, but it cannot have the effect of deterring people from purchasing the cloth at a particular place, by silent form of intimidation' The nosition, howerver. is different here where force was used. It is not the case against the petitioners that they merely by peaceful manner requested P. W. 1 to observe the Hartal, the case against them being that they forcibly closed the shop of P. W. 1 when the latter did not accede to their request to observe Hartal. Thus, the facts clearly come within the mischief of Section 7(1)(b) of the Act.
12. The contention that a clear case against G.C. Kundu has not been made out appears to have force. P. W. 1 did not state in his evidence that it was this accused who insisted on him to close the shop, though no doubt, he accused him of having used some force to close his shop, but P.W 8 has clearly stated in his evidence that it was accused Satya who insisted on P. W. 1 to close his shop and the petitioner Gopal was not there, but he was at his Office at a distance of about five cubits from the shop Under the circumstances. I am of the opinion that the petitioner Gopal Chandra Kundu is entitled to the benefit of doubt and the order of conviction and sentence, in so far as he is concerned, is set aside and the revision in respect of his is allowed and he is acquitted
13. The order of conviction in respect of accused Satya Kundu is maintained In consideration of the circumstances of the case, the sentence of Rs. 100/- appears to be excessive While therefore maintaining the conviction of the petitioner Satya Kumar Kundu, I reduce the sentence to a fine of Rs. 25/- which in my opinion is sufficient to meet the ends of justice in the case. In default of payment of fine the petitioner would undergo simple imprisonment for one week With this modification in the sentence, the petition in respect of petitioner Satya Kumar Kundu is dismissed.