1. This is a petition put in not by, but on behalf of, two persons, who have been convicted by the First Class Joint Magistrate of Chingleput of offence punishable under Section 17(1) of the Criminal Law Amendment Act, 1908 and Section 4 of Ordinance V of 1932. The point taken in this petition is that they have in fact being convicted only of one offence, that of picketing, which can fall equally under Section 17(1) of the Criminal Law Amendment Act and under Section 4 of the Ordinance and that, therefore, the Joint Magistrate in awarding them separate sentences for the conviction under each count has acted illegally with reference to Section 71, Indian Penal Code.
2. Under Section 17(1) of the Criminal Law Amendment Act a person can be punished if he is a member of an unlawful association, or for in any way assisting in the operation of any such association. By Section 4 of Ordinance V of 1932, which is known as the Ordinance for the Prevention of Molestation and Picketing, a person can be punished for molestation. The judgment of the Magistrate refers to the two accused as having been respectively President and member of the Taluk Congress Committee, Conjeevaram and of the District Congress Committee of Chingleput; and it has been suggested by the learned Public Prosecutor that the conviction under the Criminal Law Amendment Act may have been for their being members of an unlawful association which would be a separate offence from that of picketing. It has been proved by evidence that the Taluk and. District Congress Committees in question have been notified by Government as unlawful association. In order to make clear the matter the records of the case have been sent for and scrutinised.
3. The particulars of the accusation stated against the 1st accused have thus been set out by the Joint Magistrate: 'Whereas it appears that you, Dr. P. S. Srinivasa Iyer, being the President of the Taluk and District Congress Committees of Conjeevaram and Chingleput respectively, which have been declared to be unlawful associations by the Government under Section 16 of the Criminal Law Amendment Act, 1908 and in spite of a warning from the District Magistrate to desist from activities in furtherance of the purposes of the said unlawful associations, did, at 12-20 p. m., on 14th March, 1932, in furtherance of the purposes of the said unlawful associations, picket foreign cloth shops at Hodgsonpet, Conjeevaram and thereby committed an offence under Section 17(1) of the Criminal Law Amendment Act, 1908; and that you, by doing the said picketing, committed the offence of molestation as defined in Section 3 of Ordinance V of 1932 punishable under Section 4 of the said Ordinance; show cause why you should not be convicted under Section 17(1) of the Criminal Law Amendment Act of 1908 and Section 4 of the Ordinance V of 1932. Do you plead guilty or not guilty ?' The accusation that was read to the 2nd accused is just the same as that read out to the 1st accused except that he is described as a member of the Congress Committees and not as the President.
4. It is true that in both these statements of accusation the fact of the accused being either President or member of the Taluk and District Congress Committees is mentioned, but I am satisfied that this is only by way of description. This is shown by the use of the word 'being '. Had they been charged with the offence of being members of an unlawful association the . accusation should run 'that you were'. This, however, is not a case in which one has to decide by a meticulous examination of the language that is used, as from what follows later it is perfectly clear that the offence under Section 17(1) was that of picketing foreign cloth shops and that the offence charged under the Ordinance was that of molestation in the said picketing. Therefore, under each section alike it was the offence of picketing with which the two accused were charged. The matter is so very clear that it is hardly necessary to mention anything that might make it even clearer; but for the sake of emphasis I will point out that what was read by the Joint Magistrate to the accused as to the accusation is perfectly a paraphrase of what is stated in the charge-sheet, though in the charge-sheet in the place of the word 'being' we have 'who are'. The conclusion of what appears in the charge-sheet shows that the charge against the accused was one of picketing which is shown as falling both under the Act and under the Ordinance. And, again, in the first information report nothing is mentioned about these accused being members of an unlawful association, but it is merely stated that they were guilty of picketing and thereby committed offences under the Act and under the Ordinance.
5. Before the Magistrate the first accused declined to plead either way and so also did the second accused. The second accused, however, went on to say: 'I wish to add, however, that I think I was a member of the Taluk Congress Committee only, as far as I remember, and not of the District Congress Committee.' As he had already declined to plead it is clear that in this statement he was only correcting a possible mistake in his description and was not replying to the charge of being a member of an unlawful association, which charge indeed had not been preferred against him.
6. I find, then, that the two accused have been found guilty of one offence and one only, though it is one punishable under two separate provisions of law. The two separate sentences therefore cannot stand. The convictions are confirmed but the sentence of six months' rigorous imprisonment and of fine of Rs. 200 that has been passed for the conviction under Section 4 of Ordinance V of 1932 is set aside. I understand that they have already undergone imprisonment for six months or more. If that be the case, and, if they have no further term of imprisonment to undergo in default of payment of fine, they must at once be released and set at liberty; at any rate, they must be released as soon as their term of six months and any term of imprisonment in default of payment of fine has expired. The fine, if paid, should be refunded to them.