1. The three respondents who were accused Nos. 8, 10 and 9 in the Court of the Sub-Divisional First Class Magistrate, Bandar Division at Masulipatarr, were convicted together with Accused Nos. 1 to 7 for offences under Sections 143 and 145 of the Indian Penal Code and Section 22 of the Police Act, V of 186'. They were sentenced under Section 143, Indian Penal Code, to one month's rigorous imprisonment and under Section 145 to rigorous imprisonment for six weeks each, the sentences to run concurrently; and they were called upon to execute bonds for Rs. 200 each with two sureties each for similar amounts to keep the peace for one year after the expiry of the sentences. As the accused had been sentenced under Sections 143 and 145, Indian Penal Code, no sentencejwas passed with regard to the charge under Section 32 of the Police Act. The accused Nos. 8, 9 and 10 appealed to the Sessions Judge of Kistna Division who set aside their convictions under Sections 113 and 145 of the Indian Penal Code but upheld the conviction under Section 32 of the Police Act. The facts of the case are as follows: His Excellency the Governor of Madras paid a visit to Masulipatam on the 8th February last. Some public meetings were held there by Congress adherents and resolutions for boycotting the Governor's visit, for bringing about a hartal of shops in the town on the day of his visit and for taking a procession at the time of his visit of persons carrying black flags in their bauds and crying 'Governor, go back,' were passed. The Circle Inspector of Police of Masulipatam apprehending a breach of the peace made a report to the District Superintendent of Police, Ei. O, and the latter after obtaining the permission of the District Magistrate issued an order under Section 30 (z) of the Police Act to the effect that persons collecting assemblies or directing or promoting precessions as contemplated were to apply to him for a license before so doing. This notice is Ex. B, and was given to Valluri Kama Rao one of the leading spirits at the meeting we already referred to. A similar notice Ex. J. F was issued which is a notice generally to all concerned. These notices are dated the 7th February, 1931. On the morning of the forth February when His Excellency the Governor was expected, to arrive a procession of about sixty people started at about eight o'clock in the morning and wentaloDg the Fort Road towards the Robertson Square which irckded a rait of the route alorig which His Excellency was to go. Accused Nos. 1 acd 2 were at the head of the procession and the other persons included in the procession were the other accused and thethreerespondents. The Sub-Inspector of Police, P.W. No. 1, met the precession on the way and told its members about the order Ex B, and served copies of it on the 1st and the 2nd accused who were leading the procession, individually. The procession then turned back and entered the premises of the Spinners and Weavers Association and meeting was held there inside the building. The Sub-Inspector of Police followed the procession to the Association but did not enter the premises but waited outside on the road. There is no evidence on the prosecution side as to what took place within the building although there is some evidence on the defence side. The 1st and the 2nd accused came out of the premises and according to the prosecution case formed themselves into a procession carrying black flags and crying 'Governor, go back.' As before stated the 1st and the 2nd accused were leading the procession. Prosecution witness No. 1 asked them whether they were going to disobey the order and when they said that they were he arrested them then and there. It must be remembered that they had already been served with copies of the notice, Ex. B. The 3rd accused then came forward and tried to lead the procession. He was also served with a copy of the order but on persisting in his attempt he was also arrested. The learned Sessions Judge finds that after the 1st, the 2nd and the 3rd accused were arrested, accused Nos. 4 to 1L one after the other put themselves at the head of the procession and began to direct: all this finding of fact is of considerable importance in this case. They were arrested by P.W. No. 1 one after the other. The prosecution case is that before arresting these persons P.W. No. 1 gave oral orders to all persons in the procession to disperse but that they refused to do so. It only, of course, on those facts being found that the accused can be convicted under Section 145, Indian Penal Code. The learned Sessions Judge goes on to say with regard to the conduct of the accused Nos. 4 to 11: 'Atthat time they were not merely in the rank and file of the procession. They had begun to direct it.' The defence version with regard to the accused at this time is that it was resolved inside the premises in view of the order of the Superintendent of Police that they should not go out in procession but that each man should go his own way carrying a black flag shouting 'Governor, go back.' That sets up the case that each person was acting individually and not collectively with the others. That version is not accepted by the learned Sessions Judge in view of the evidence of D.W. No. 2 and D.W. No. 11. The learned Sessions Judge, however, acquitted the three respondents of the charge under Sections 143 and 145, Indian Penal Code, and in acquitting them adopts the dissenting judgment of Das, J., in Emperor v. Abdul Hamid 68 Ind. Cas. 945 : 2 Pat. 134 : 3 P.L.T. 585 : (1922) Pat. 274 : 4 U.P.L.E. (Pat.) 79 : 23 Cr. L.J. 625 : A.I.R. 1923 Pat. 1 : 1 P.L.R. 199 Cr. and dissents from the rulings of the two Judges forming the majority of the Special Bench 'which decided that case. He eays that there 'is no evidence that the respondents acted together with others with the common object of resisting the execution of the District Superintendent's order and also holds that in this case there was no order to disperse and, therefore, no refusal and that there was no overt act of resistance. With regard to the evidence in this case of an order to disperse, we think that the prosecution evidence does not sufficiently prove that any such order was given Therefore, the respondents cannot be convicted under Section 145 of the Indian Penal Code of having refused to disperse after such an order. There remains, however, their conviction under Section 143, Indian Penal Code, For the prosecution it is contended that the 2nd clause of Section 141 applies to this case: Section 141 defines an unlawful assembly as follows: 'An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing the assembly is second, to resist the execution of any law, or of any legal process.'
2. The prosecution case is that the respondents resisted the execution of the law, namely, by directing a procession without a license. For the accused it is argued that the order Ex. B is not a law, that neither was the law being executed and that there hjas been no resistance, To constitute resistance an overt act, it is argued, is required and there is the authority in Emperor v. Abdul Hamid 68 Ind. Cas. 945 : 2 Pat. 134 : 3 P.L.T. 585 : (1922) Pat. 274 : 4 U.P.L.E. 79 : 23 Cr. L.J. 625 : A.I.R. 1923 Pat. 1 : 1 Pat. L.R. 199 Cr. already referred to in support of that argument. In that case it was held that resistance con-.notes some overt act and that mere words when there is no intention of putting them into effect will not be sufficient to prove an intention to resist. Where there is as in the Patna case, a refusal to disperse at the command of the Police, that clearly constitutes an overt act. Here it is argued by the defence that in this case there was no order to disperse given, by the Police and, therefore, no refusal and that there has been no overt act which would connote resistance. This argument appears to us to be based upon a mistake which the learned Sessions Judge has made. Resistance to execution of the law is one thing and refusal to comply with an order to disperse is another thing, Section 145 is an aggravated offence. A conviction under Section 143 does not require any refusal to comply with an order to disperse at all. The question to be considered is whether the accused in this case have been guilty of some overt act and in para. 11 of his judgment the learned Sessions Judge finds facts which clearly do amount to overt acts because he agrees that the accused Nos. 4 to 11 one after the other put themselves at the head of the procession and began to direct it If the Police Order not to direct a procession without a license is the execution of the law, then clearly the direction of the procession after such an order after the respondents became aware of Buchan order amounts to resistance of the execution of the law. It is perfectly clearly that after the procession had been stopped in the first instance and the 1st and the and accused personally served with a copy of Ex. B the procession turned back to the premises of the 'Spinner's and Weaver's Association' and thare held a meeting. It is obvious that the subject uader discussion at the meeting was the Police order not to continue the processions without a license. At the end of the meeting the accused came out, the first two at the head of the crowd and after they had been arrested the other accused in turn put themselves at the head of the procession. Obviously it had been decided at the meeting that the procession should go on without a license from the Police and the learned Sessions Judge has rejected the defence story that each of the accused was acting independently of his fellowmen in goiDg out and carrying black flags. The evidence, clearly points to an agreement by all the members of the procession to defy the Police order and that all the accused had that common object. We are amazed at the statement of the learned Sessions Judge in para, 9 of his judgment where he says 'so far as these appellants are concerced there is not even an iota of evidence on the prosecution side tending to show that they either collected assemblies of men or directed or promoted processions along with others forming an association of five or more with the common object of resisting the execution of law. Prosecution witness No. 1's very words quoted above only show that each one of the accused Nos. 1 to 1L acted individually when he came forward to direct the procession and his evidence renders it impossible to attribute concerted action and a common object to these appellants'.
3. In view of the fact that in para, the has rejected that contention of the respondents, his observations in para. 8 are amazing and in para. 11 he contradicts what he has said in para. 9. If any support to the prosecution case is required, the evidence of D.W. No. 2 provides it. He says, 'From the conduct of the procession I inferred and thought that the decision was to go out iu procession and disobey the orders issued under the Police Act. I thought that they were purposely disobeying orders'. This, being so, the only question that remains to be considered is whether the Police order was the execution of any law. In Emperor v. Abdul Hamid 68 Ind. Cas. 945 : 2 Pat. 134 : 3 P.L.T. 585 : (1922) Pat. 274 : 4 U.P.L.E. 79 : 23 Cr. L.J. 625 : A.I.R. 1923 Pat. 1 : 1 Pat. L.R. 199 Cr., to which reference had already been made, the majority view waa thus expressed, 'when a notification is issued by an executive authority in exercise of power conferred by Statute that notification is as much a part of the-law as if it had been incorporated in the body of the Statute at the time of its enactment. The command is in effect a command by the appropriate legislative authority. In the present case if the notification was in compliance with Section 30 of the Police Act, then, in my opinion, it was a law and certainly a legal process'. We are not prepared to say that such an order is a legal process but it appears to us quite clear that the Police order is an execution of the law. The law is enacted in Section 30 of the Police Act and it is that under certain circumstances persons directing a procession shall apply for a license. The conditions are that such a procession in the judgment of the Magistrate of the district or the Sub Divisional Magistrate, if uncontrolled, would be likely to cause a breach of the peace. Then in such cases the District Superintendent of Police or the Assistant District Superintendent of Police may issue an order requiring the person directing such procession to apply for a license. The issuing of the order by the Police is the execution of the law as laid down in Section 30 of the Police Act and it seems to us to make no difference whatever that a discretion is given to the District Superintendent of Police or the Assistant Superintendent of Police to execute the law. When he exercises his discretion in issuing a notice he is executing the law; and for the reasons already stated, the respondents in directing the procession after the promulgation of the notice by the Police and after they were awajre of such a notice were resisting the execution of the law. Hence their conviction under Section 143, Indian Penal Code, by the Sub-Divisional Magistrate of Bandar was perfectly correct. We agree thatthe conviction of the respondents under Section 145, Indian Penal Code, cannot be upheld and that the learned Sessions Judge was correct in setting it aside. The order here is that the judgment of the learned Sessions Judge setting aside the conviction of the three respondents under Section 143 of the Indian Penal Code must be reversed and the order of the Sub-Divisional Magistrate Bandar restored. As the respondents cannot also be sentenced under Section 32 of the Police Act the sentences passed upon them by the learned Sessions Judge under that section must be set aside.