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Harihar Das and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in33(1967)CLT414; 1968CriLJ564
AppellantHarihar Das and ors.
RespondentState
Cases ReferredDamodar Ganesh v. State
Excerpt:
.....gita banik, 1996 (2) glt 246, are not good law]. - it is, however, well settled by authorities that section 82 is cot confined only to the licensee but applies to any member of the procession who has knowledge of the terms of the licence and violates the terms of the licence in spite of such knowledge (see a full bench decision of the lahore high court reported in air 1941 lah 872, emperor v......'any magistrate or district superintendent of police or assistant supdt. of police or inspector of police or any police officer in charge of a station may stop any procession which violates the conditions of a licence granted under section 80 and may order it or any assembly which violates any such conditions as aforesaid to disperse'. under sub-section (2) of that section, it is provided 'that any procession or assembly which neglects or refuses to obey any order given under the last preceding sub-section shall be deemed to be an unlawful assembly.thus, section 80a(2) makes it clear that where a procession or assembly refuses to obey an order given by the appropriate police officer it shall be deemed to be an unlawful assembly. there is, as seen from the evidence in this case, and as.....
Judgment:
ORDER

R.K. Das, J.

1. Each of the petitioners has been convicted under Section 143 and 447 Indian Penal Code, and Section 7(1)(b) of the Criminal Law Amendment Act of 1982 and sentenced to under, go simple imprisonment for one month on each count. The sentances to run concurrently. They have also been convicted under Section 32 of the Police Act, but no separate sentence has been awarded.

2. The petitioners are said to be the members of the Communist Party at Baripada in the district of Mayurbhanj. A Notification trader Section 30(2) of the Police Act, (hereinafter stated as the Act) was promulgated and was in force in the town of Baripada for a period of three months from 15th August to 15th November 1964. As required under the said notification, a person desiring to take out a procession shall have to obtain a licence from the appropriate authority. It is the case of the prosecution that Bam Chandra Das, a member of the Communist Party at Baripada made an application and obtained a licence Ex. 9 for taking out a procession on the date of occurrence. Certain conditions were imposed in the said licence. The main res rictions were that no slogans would be shouted nor the mike used near the Collectorate and that the Court premises shall not be encroached upon nor should the procession create any disturbance in the Court area and it will not stop anywhere on the road.

3. It is the case of the prosecution that on 26th August 1964 the petitioners who formed the procession encroached upon the Court premises and created disturbances and deterred the officials working at or near the said premises from carrying on their normal business and thus violated the conditions of the licence. They did not obey the directions given by the police officers, thus formed themselves an unlawful assembly within the meaning of Section 30A of the Act, broke the Police cordon and trespassed into the Collectorate building, The petitioners were arrested by the Circle Inspector of Police (P.W. 1). An F.I.R. (Ext. 3) was lodged, and after investigation, the petitioners were prosecuted under Sections 148 and 447, Indian Penal Code, as also under Section 7(1)(b) of the Criminal Law Amendment Act, and Section 32 of the Police Act.

4. The plea of the petitioners was that they wanted to put forth their grievances before the Collector against the soaring rise of prices. They admitted to have gone in a procession and given slogans. They denied to have been stopped by the Police Officer. They did not, however, examine any defence witness not even cross-examine the prosecution witnesses.

5. In support of the prosecution case, reliance was placed on the notification issued under Section 80(2) of the Act and the licence imposing certain restrictions on the procession has been proved. A number of witnesses were examined including the Police Officer, who asked the processionists to disperse and not to enter into the Court premises or to create disturbances therein. Some evidence has also been led to prove that some of the officials who were working at or near the Court premises were deterred from carrying out their usual business as a result of such disturbances and loud slogans given by the petitioners. The courts below after discussion of the evidence, came to hold that the petitioners were members of an unlawful assembly, committed trespass into the premises of the Collectorate, loitered in the premises of the Collectorate and deterred the officials from carrying out their normal business and also violated the conditions of the licence. The trial Court accordingly convicted and sentenced the petitioners as stated above. The conviction and sentence were confirmed in appeal.

6. Mr. Palit, learned Counsel for the petitioners raised the following contentions:

(1) That Section 447 I.P.C. has no application, as the petitioners had no criminal intention to cause any annoyance to the officials of the Collectorate, but their sole intention was to put forth their grievance before the Collector regarding the rise of prices of essential commodities.

(2) That Section 148, I.P.C. has no application because the procession itself cannot be said to be an unlawful assembly:

(3) That for violation of the conditions of the licence, it is only Bam Chandra Das in whose favour the licence was issued can be made liable.

(4) That the requisites to constitute an offence under Section 7(1)(b) of the Criminal Law Amendment Act, 1982 being absent, none of the petitioners can be convicted under that section.

7. The first contention appears to have some force. It is clear from the evidence that the petitioners went to the offices of the Collectorate not with any intention to cause any annoyance or injury to the persons present there, but to put forth their grievances before the authorities regarding the soarings rise of prices. To entail a conviction under Section 447, I.P.C. it is necessary that the prosecution should establish that the main intention of the accused persons in entering on the premises is to commit an offence or cause annoyance or injury : See : [1964]5SCR916 , Mathri v. State of Punjab. The petitioners must therefore be acquitted of the charges under Section 447, I.P.C.

8. The contention that the procession cannot be held to be unlawful must be rejected. There is evidence to show that the processionists entered into the Collectorate compound and shouted slogans though that was expressly prohibited by the conditions of the licence. It has also been found by the Courts below that they were asked by the police officer and the Magistrate Sri K.C. Das to disperse, but they did not pay any heed to the same and effected entry into the Collectorate. They entered into the room of A.D.M. (E) in spite of his protest, and even though, the A.D.M. himself persuaded them not to create disturbances, they did not pay any heed. Section 30A(1) of the Police Act provides thus 'any magistrate or District Superintendent of Police or Assistant Supdt. of Police or Inspector of Police or any Police Officer in charge of a station may stop any procession which violates the conditions of a licence granted under Section 80 and may order it or any assembly which violates any such conditions as aforesaid to disperse'. Under Sub-section (2) of that Section, it is provided 'that any procession or assembly which neglects or refuses to obey any order given under the last preceding sub-section shall be deemed to be an unlawful assembly.

Thus, Section 80A(2) makes it clear that where a procession or assembly refuses to obey an order given by the appropriate police officer it shall be deemed to be an unlawful assembly. There is, as seen from the evidence in this case, and as found by the courts below, the processionists refused to obey the direction given by the Magistrate and the police officer, entered into the Court premises, raised slogans and thus violated the conditions imposed in the licence. Thus, the assembly became an unlawful one within the meaning of Section 80A(2) of the Police Act. The evidence that, the petitioners formed members of the procession stands unchallenged. The question is whether the petitioners can be convicted under Section 148, I.P.C.

In a case reported in AIR 1946 Pat 381, Ram Babu v. Emperor, the organiser of the procession obtained a licence under Section 30 of the Police Act which prescribed the route and limit up to which the procession had been allowed to proceed. In spite of the direction, the processionists violated the conditions of the licence and the direction issued by the Magistrate and Police not to do be, and apparently resolved to disobey the orders and in defiance thereof broke through the police cordon. It was held that by doing so, they formed themselves an unlawful assembly within the meaning of Section 141, I.P.C. and are liable to be punished under Section 148. The conviction of the petitioners under Section 143, I.P.C. must therefore be held to be justified and is accordingly maintained.

9. The next question is whether the licence Ram Chandra Das alone would be held liable for violation of the conditions of the licence or each of the petitioners shall be so held liable. That there was a violation of the conditions of the licence cannot be disputed. It is clear from the licence that the processionists were not permitted lo encroach upon the court premises or to use mike, give slogans within that area, to cause any disturbances which would cause annoyance in the court premises. As is clear from the evidence and the findings of the Courts below that the processionists dearly violated the conditions of the licence by entering into the court premises shouting slogans etc. The only question would be whether the licensee alone would be liable or every other person who took part in the procession would be made liable under Section 82 of the Police Act. Section 82 of the Police Act provides that every person opposing or not obeying the orders issued under the last three preceding sections (i.e. Section 80, 80A and 81 or violating the conditions of the licence granted for the use of music or for the conduct of assemblies and processions shall be made liable under that section.

It is, however, well settled by authorities that Section 82 is cot confined only to the licensee but applies to any member of the procession who has knowledge of the terms of the licence and violates the terms of the licence in spite of such knowledge (see a Full Bench decision of the Lahore High Court reported in AIR 1941 Lah 872, Emperor v. Bhagwat Singh. There is however co evidence in this case that each of the petitioners was aware of the conditions of the licence. They cannot, therefore, be convicted under Section 82 of the Police Act. Their conviction under that section must be set aside.

10. Coming to the charge under Section 7(1)(b) of the Criminal Law Amendment Act, it was urged by the learned Counsel for the petitioners that there is nothing in evidence to suggest the commission of the offence under Section 7(1)(b). Section 7(1)(b) of the Criminal Law Amendment Act runs as follows:

7 (1) Whoever..

(b) loiters or does any similar act at or near the place where a parson Harries on business, in such a way and with instant that any person may thereby be deterred Item entering or approaching or dealing at such plane, shall be punished.

It was contended by the learned Counsel for the petitioners that before a case under Section 7(1)(b) is made out, there must be some evidence to suggest that the petitioners were loitering at the Court premises and their intention wa3 to deter the officials from carrying out their work in those premises nor had they the necessary intention of deterring any person from entering or approaching the Collectorate premises.

A number of officers working at or near the Collectorate premises have been examined in this case to prove that it was not possible for them to carry on their usual business on account of the disturbances created by the processionists. P.W. 4 is the Steno to the A.D.M. (E). His evidence is that due to heavy noise caused by the petitioners, he could not transact any business. That also is the evidence of P. W. 5 Debottar Manager and P.W. 6 Sub Post Master whose office is situate just near the Collectorate. The evidence of P. Ws. 7 and 8 also is to the same effect. These witnesses were not subject to any cross-examination and their evidence stands unassailed. On their evidence, the Courts below came to a finding that on account of the disturbance caused, the officers working at or near the Collectorate were deterred from doing their normal business. It was contended by the learned Counsel for the petitioners that in the absence of any evidence Of loitering with the intention to commit any specific overt act, conviction under Section 7(1)(b) is not justified.

In a case reported in : AIR1951Bom459 , Damodar Ganesh v. State the law his been correctly stated. It was held that under Section 7(1)(b) the offence consists of loitering at special places With particular intent. Under Clause (a), the intention is to cause a person abstain from doing a thing which such person is entitled to do, and under Clause (b) the intention is to deter a person from entering, approaching and dealing at such places. In both the cases, no overt act other than that of loitering is necessary to constitute an offence. It should be a matter of evidence whether the loitering is with specified intention or not. Such intention may have to be proved either by words uttered, leaflets distributed or gestures adopted. It may also be proved not by anything done or said at the time of loitering bat by speeches said or exhortations given long before such loitering. Bat the section, as it stands requires apart from mental state signified by the word 'intention' nothing more than loitering so far as Clause (a) is concerned and loitering in a particular way so far as Clause (b) goes. The word 'loitering' has not been defined anywhere, but according to the dictionary meaning it means 'moving about with frequent pauses hanging about and doing nothing.'

The evidence discloses that the petitioner persisted in hanging about at the office of the Collector in spite of the request made by the A.D.M. and other officers, stayed there for an hour, raised slogans and did not disperses in spite of the order given by the Magistrate and the police. There is evidence to show that the activities of the petitioners interfered with the business of the officials working in the said premises. There cannot be any doubt that those officials were dealing at such places within the meaning of Section 7(1)(b) and the activities of the petitioners had deterred them from their dealings at their offices and the office work was paralysed for some time.

The next question would be whether they were loitering with the intention to deter the official from carrying on their business No doubt, the intention of the petitioners was to bring to the notice of the Collector their grievances regarding the rise of prices, but they had no justification to hang on, loiter and give slogans after they were asked not to do so. Intention cannot be proved by any direct evidence and has to be gathered from the conduct of the parties and the circumstances of the case. That being the position, there cannot be any doubt that the petitioners also intended to deter the parsons in the said offices from dealing at such places. Their conviction under Section 7(1)(b) must therefore, be held to be justified.

11. In the result, therefore, the convictions of the petitioners under Section 447, Penal Code and under Section 32 of the Police Act are set aside, but their convictions under Section 7(1)(b) of the Criminal Law Amendment Act, 1932 and also under Section 148, Penal Code are maintained.

But is view of the circumstances of the case. I am of the opinion that the sentences already undergone by the petitioners are sufficient to meet the ends of justice.

The sentences are accordingly reduced for the period already undergone.

The Revision is accordingly partly allowed.


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