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Jashwant Khimabhai Bariya and ors. Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR546
AppellantJashwant Khimabhai Bariya and ors.
RespondentThe State of Gujarat
Excerpt:
- - would the law expect the leaders to leave the members of the assembly to act as they liked uncontrolled and unguided by their leaders? if this is expected, the consequences would be disastrous. if it is meant that they should have disapproved of the action, there is no evidence to show that they had approved the action or encouraged the participants or that they had failed to record their disapproval......protest in regard to a public question and if in the course of that procession some undesigned stone-throwing takes place, can the leaders be said to be the members of an unlawful assembly?' it arises on the following facts.2. on september 8, 1968 at about 8-00 p.m. a public meeting sponsored by petitioner no. 1 was held under the auspices of samyukta socialist party at the botad chowk in the town of gadhada. it appears that there were certain grievances against the mamlatdar in respect of the discharge of his public duties. there were also some grievances against one laxmanbhai who was at the material time the president of the taluka panchayat of gadhada. the meeting was called to ventilate the grievances of the public against the mamlatdar and laxmanbhai. it was presided over by.....
Judgment:

M.P. Thakkar, J.

1. A question of great relevance at the momentous times we are passing through is raised in this revision application. The question raised is: 'If leaders of a political party take out an avowedly peaceful procession in exercise of their right of peaceful protest in regard to a public question and if in the course of that procession some undesigned stone-throwing takes place, can the leaders be said to be the members of an unlawful assembly?' It arises on the following facts.

2. On September 8, 1968 at about 8-00 p.m. a public meeting sponsored by petitioner No. 1 was held under the auspices of Samyukta Socialist Party at the Botad Chowk in the town of Gadhada. It appears that there were certain grievances against the Mamlatdar in respect of the discharge of his public duties. There were also some grievances against one Laxmanbhai who was at the material time the President of the Taluka Panchayat of Gadhada. The meeting was called to ventilate the grievances of the public against the Mamlatdar and Laxmanbhai. It was presided over by petitioner No. 2 and addressed by petitioner No. 5. A call was given at the meeting that a procession should be taken to the house of the Mamlatdar chanting the name of God Rama 'RAM DHUN'. It is the prosecution case that in the course of the procession which was taken out in response to this call given by petitioner No. 5 slogans were shouted demanding the dismissal of the Mamlatdar. It is also alleged that slogans directed against Laxmanbhai were also raised by using the expression 'HAI, HAI'. The procession led by the leaders proceeded in the direction of the bungalow of the Mamlatdar. Neither the Mamlatdar nor Laxmanbhai, the president of the Taluka Panchayat, was present at his residence. Some of the processionists are alleged to have thrown stones at the bungalows of the Mamlatdar and of some other officers situated in the same neighborhood, before they dispersed. As a result of the stone-throwing slight damage estimated at Rs. 50/- was caused to a State Transport Bus. It is also the prosecution case that a truck bearing No. G.T.S. 5729 also sustained some damage on account of the breaking of glass-panes. The damage was estimated at about Rs. 400/-. There is no clear evidence as regards the damage, if any, to the glass panes of the windows of the bungalows. The panchnama merely shows that some stones were scattered in the courtyards of the bungalows. According to the prosecution, the incident culminating in the stone-throwing occurred at about 11-00 p.m. At about 12 midnight P.W. 15 Bhikhabhai Kalubhai (the driver of motor truck No. G.T.S. 5729 which had sustained, damage by stone-throwing) lodged the first information report (Ex.66). And as a result thereof the petitioners along with 31 others were prosecuted for offences under Sections 147, 447, 336, 337 & 427 of the Indian Penal Code and Section 25 of the Indian Telegraph Act read with Section 149 of the Indian Penal Code. The learned Judicial Magistrate, First Class, Botad who tried the said Case, Criminal Case No. 968 of 1968, acquitted 31 out of the 36 accused. The five petitioners who were arraigned as accused Nos. 1, 2, 3, 4 & 8 were, however, convicted for offences under Section 147,336 and 427 read with Section 149 of the Indian Penal Code. Petitioner No. 1 and petitioner No. 5 (accused No. 8) were sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 200/-. In default of payment of fine, they were directed to suffer rigorous imprisonment for a further term of 15 days. Petitioners Nos. 2, 3 and 4 were sentenced to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 100/-. In default of payment of fine they were directed to undergo rigorous imprisonment for seven days. The petitioners approached the Sessions Court at Bhavnagar by way of Criminal Appeal No. 23 of 1969. The learned Sessions Judge confirmed the findings recorded by the trial Court and dismissed the appeal. And this has given rise to the present revision application preferred by the five petitioners.

3. This being a revision, I will proceed on the assumption that the findings of facts recorded by the learned Sessions Judge are correct. These findings would go to show that a public meeting had taken place at the Botad Chowk. Petitioner No. 5 at the conclusion of his address had given a call to go to the house of the Mamlatdar chanting 'RAM DHUN'. They had in the course of the procession raised the slogns demanding the dismissal of the Mamlatdar and they had also raised the slogan 'HAI, HAI' addressed to Laxmanbhai. Before the procession dispersed some stone-throwing had taken place as a result of which some stones were found from the bungalows in the neighborhood. A glass-pane of a motor truck was broken and damage estimated at Rs. 400/- was caused. I must also accept the finding that damage worth Rs. 50/- was caused to a State Transport Bus as a result of the pelting of the stories. It is also common ground that there is no evidence to show that any of the petitioners had themselves indulged in stone-throwing or that any of them had advocated use of violence or abetted the throwing of the stones. The petitioners have been found guilty by reason of the fact that they were the leaders and were participants of the procession which culminated in this incident. The reasoning which found favour with the learned Sessions Judge in holding the petitioners guilty is reflected in paragraph 20 of his judgment which may for the sake of preciseness be quoted:

Now is there any substance in the argument that it was for the prosecution to attribute overt acts to each and every accused and in the absence of such evidence, the appellants should be acquitted. There is not the slightest evidence on record to show that as soon as the assembly which was lawful in the beginning became unlawful, the appellants who were mostly the organizers of the meeting disassociated themselves from others or persuaded them to disperse peacefully. There is not the slightest evidence on record to show that as soon as the pelting of stones started, the accused-appellants or any of them dissuaded the others from doing so. Assuming for the sake of argument that the assembly was peaceful at the start, it certainly became unlawful when the members of that assembly or at least some of them started pelting stones.

4. Now, it must be realised that the right to lodge a peaceful protest and to lead a procession is a right which has been recognised by every democratic society. If the grievances of the people are not allowed to be ventilated by resort to peaceful processions, peaceful demonstrations, and innocuous slogans, and their right of protest which is a highly valued right in a democratic society is not recognised, there would remain no peaceful outlet for the emotions of the members of a democratic society. It is one mode of registering protest, voicing the grievances, and of apprising the administration of the urgency of the situation and making it aware of the acuteness thereof. If this right is not recognised, the very foundations of a democratic society would be shaken, for, then the only way of registering protest that would remain open to the people would be to pin their faith in violent revolution. It cannot, therefore, be gainsaid that the right of peaceful protest is of immense value and it has to be recognized in a democratic society in its own interest. It must also be emphasised that unless the leaders of public opinion are allowed to lead peaceful processions and demonstrations, the reins of leadership will pass out of the hands of the persons who believe in peaceful democratic leadership into the hands of those who believe in violence and anarchy. To require of the political leaders that they should not exercise their right of leadership to head and lead processions and demonstrations unless they are absolutely certain that no mischief or stone-throwing will take place is to insist on the impossible. The chance of slight mischief and minor stone-throwing in a public demonstration is inherent in the very nature of the operation. It is possible that even if all the participants of the procession are of firm resolve not to resort to stone-throwing, some mischief-mongers from outside may mix with them or that some of the participants may out of excitement or out of a sense of thrill which so often goes with youth (boyish mischief) may indulge in stone-throwing without giving any thought, much less serious thought, to the matter. Merely because there is a chance or likelihood of stone-throwing, the leaders of a democratic political party cannot be asked to abandon their political obligation to channelize peaceful mode of protest by way of processions or demonstrations. It is very likely that even if the leaders and the participants have no unlawful object in their mind and even if they are firmly of the belief that adherence to nonviolence and peaceful protest is of paramount importance, without their knowledge and without their consent or approval some mischievous elements might resort to stone-throwing. Merely because this happens, it cannot be said that the assembly at its inception was unlawful. In the present case, it is quite clear that the assembly at its inception was peaceful. There was nothing in the slogans or in the speeches which incited the participants to exhibit any violence or to resort to any violent mode of protest. It is equally true that as per the facts found by the learned Sessions Judge, some stone-throwing albeit of a very limited and small extent took place. It is also equally clear that without the intervention of the police the processionists had dispersed. There is nothing to show that any of the petitioners had indulged in stone-throwing or had incited, encouraged or abetted the participants to indulge in stone-throwing. It is not even shown that they were passive onlookers when the stone-throwing was going on. On these facts it would not be possible to hold that the petitioners were members of an unlawful assembly. In the first place it is not shown that all the members of the processionists had at the point of time when they reached near the bungalow of the Mamlatdar, formed a common object of resorting to stone-throwing and thereby constituted themselves into an unlawful assembly. It appears that a small section of the processionists suddenly entertained this object. And if that is so, it is that small section of the large crowd which constitutes an unlawful assembly. It is not shown that the petitioners were members of this particular section assuming that such a section had constituted itself into an unlawful assembly. Making a different approach, assuming that it can be held that they were members of the assembly which suddenly had formed the common object of throwing stones and thereby constituted itself into an unlawful assembly, what would the law expect the leaders to do? Would the law expect them to abandon the processionists to a section of which had, in disregard of the resolve and the advice of the leaders to restrict their activities to lawful protest, resorted to stone-throwing? Would the law expect the leaders to leave the members of the assembly to act as they liked uncontrolled and unguided by their leaders? If the leaders who set out on a march of peaceful protest find that some stone-throwing takes place, the law would certainly not expect them to abandon the procession and desert the place. If this is expected, the consequences would be disastrous. Uncontrolled and unguided by the leaders and the restraint which can be imposed on them by the very presence of the leaders, the members of the assembly would indulge in unlawful activities of a serious magnitude. It cannot, therefore, be said that merely because the lenders did not run away as soon as the stone throwing commenced (which would have been highly irresponsible in any case), they had become members of an unlawful assembly. One would of course expect responsible leaders of a responsible political party to persuade the members to abandon the path of violent protest and to return to the path of peaceful protest. If they do not do so and if there is evidence that they remained interested spectators or encouraged the unlawful activities indulged in by their followers, in a given case, one may be justified in coming to the conclusion that by remaining as members of the assembly they had rendered themselves liable for the acts of the unlawful assembly. In the present case there is no such evidence. It is for the prosecution to establish that a particular act or omission on the part of the petitioners can be construed as their mental participation with the physical unlawful acts of their followers. And the very fact that apart from the breaking of a glass or two, no other damage has been caused shows that the followers were soon brought to their senses by the very presence of their leaders. For if they were really bent on making mischief, they could have indulged in serious acts of mischief and violence. Further, the damage that has resulted is no more then the breaking of a couple of glass-panes and the find of a number of stones from the courtyards of the neighbouring bungalows. It may be realised that the finding of stones (by itself) from the compounds of the bungalows cannot be attributed to the processionists, for, when a panchnama is made after the incident, every stone which is found from the bungalow is likely to be considered to have been thrown in the course of the incident. In the present case the defence of the petitioners inter alia was that some miscreants who had deliberately come on the scene with a view to create prejudice against the processionists had indulged in stone throwing. This is something which 'can' happen. It is not necessary to examine whether this is what had really happened. It is not the function of this Court exercising revisional jurisdiction to examine the evidence with the end in view to find out whether this contention is correct or not. It is, however, clear that there is not the slightest evidence on record to show that the petitioners were guilty of any act or omission. If there was some positive evidence to show that the petitioners though present had not restrained the crowds or had by their very act of becoming interested spectators and by watching the incident with implied approval, become participants of the assembly, the matter would have stood on a different footing. As I have already remarked the basis of the judgment of the learned Sessions Judge is that the petitioners did not disassociate themselves from the others. If by disassociation it is meant that they should have left the scene, I am unable to concur with the view taken by the learned Sessions Judge. If it is meant that they should have disapproved of the action, there is no evidence to show that they had approved the action or encouraged the participants or that they had failed to record their disapproval. And having regard to the doctrine of benefit of doubt, the conviction and sentence recorded by the lower Courts cannot be sustained.

5. The revision application is, therefore allowed. The order of conviction and sentence passed by the learned Judicial Magistrate, First Class, Gadhada, as confirmed by the learned Sessions Judge, Bhavnagar, is set aside. The petitioners are acquitted. The fins, if paid, shall be refunded. The bail bonds shall stand cancelled. Rule is made absolute.


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