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In Re: E.S. Ganapatisubramania Aiyar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1942)1MLJ445
AppellantIn Re: E.S. Ganapatisubramania Aiyar
Excerpt:
- - he came to the conclusion that although the punishment was severe, the sub-divisional magistrate had given good reasons for the sentence and that under the circumstances he did not consider it to be excessive. but the evidence of the sub-inspector, the only witness in the case, mentions incidents other than that of 18th may, 1941, and one of them was that of 26th march, 1941. the magistrate appears to have selected the incident which he thought had been most clearly proved and framed the charge primarily with regard to that particular offence......been taken by mr. bhashyam. he points out that the charge sheet filed by the police relates to an offence committed on 18th may, 1941, whereas the charge itself relates primarily to an incident of 26th march, 1941. mr. bhashyam argues that the accused must have been prejudiced by that charge; true that the petitioner was confronted, when the case was almost at an end, with a charge in an unexpected form; but the evidence of the sub-inspector, the only witness in the case, mentions incidents other than that of 18th may, 1941, and one of them was that of 26th march, 1941. the magistrate appears to have selected the incident which he thought had been most clearly proved and framed the charge primarily with regard to that particular offence. if the accused had himself said that he was.....
Judgment:

Horwill, J.

1. The petitioner was convicted by the Sub-Divisional Magistrate of Erode under Rule 121, read with Rule 38 (5) of the Defence of India Rules, and was sentenced to one year's rigorous imprisonment and a fine of Rs. 500. The matter was taken in appeal to the Sessions Judge of Coimbatore, who confirmed the conviction chiefly on the ground that the petitioner had pleaded guilty. He came to the conclusion that although the punishment was severe, the Sub-Divisional Magistrate had given good reasons for the sentence and that under the circumstances he did not consider it to be excessive.

2. The charge against the petitioner was that he organised meetings at which intending Satyagrahis made anti-war speeches, introduced them to the audiences, made appreciative references to their speeches at the close of the meetings, and thereby abetted the Satyagrahis in infringing the Defence of India Act.

3. It is argued by Mr. Bhashyam that as the principal offender had determined to commit an offence under the Defence of India Act, the petitioner committed no offence in merely announcing to the public that the principal offender intended to commit an offence. The offence of which the principal was convicted could not however be committed in the absence of the public; for the offence relates to an act calculated to cause a certain effect in the minds of the public. In order, therefore, that the accused should commit an offence, it was necessary that a section of the public should be gathered there. The principal offender at each meeting was a man of no importance and it is possible that had he been left to himself,he might not have gathered persons round him to listen to what he was about to say. The petitioner, an educated man of some influence in the locality, was however of sufficient influence to be able to hold a public meeting and to afford a platform for the principal offender to commit his offence. By bringing the principal, who intended to commit an offence punishable under the Defence of India Rules, into contact with the public, which was necessary for the commission of the offence, the petitioner himself committed the offence of abetment within the meaning of Rule 121.

4. A technical objection to the conviction has been taken by Mr. Bhashyam. He points out that the charge sheet filed by the police relates to an offence committed on 18th May, 1941, whereas the charge itself relates primarily to an incident of 26th March, 1941. Mr. Bhashyam argues that the accused must have been prejudiced by that charge; true that the petitioner was confronted, when the case was almost at an end, with a charge in an unexpected form; but the evidence of the Sub-Inspector, the only witness in the case, mentions incidents other than that of 18th May, 1941, and one of them was that of 26th March, 1941. The Magistrate appears to have selected the incident which he thought had been most clearly proved and framed the charge primarily with regard to that particular offence. If the accused had himself said that he was prejudiced by this sudden and unexpected charge, I should have seriously considered whether a re-trial should not be ordered; but the accused pleaded guilty and he was particularly questioned with regard to the speech of Arumugham, the principal in the case of 26th March, 1941. Moreover, even in the lower appellate Court, this point was not taken and this difference between the charge sheet and the charge was discovered only during the researches of Mr. Bhashyam into the records in the case. Under the circumstances, I see no reason to think that the accused was prejudiced.

5. The charge mentions incidents on three dates in addition to the principal one of 26th March, 1941. Strictly speaking, if the charge is read as being on four counts, then the charge would be illegal, because there would be a joinder of more than three offences. Section 121 makes punishable the abetment of a particular offence and a person cannot be punished for abetting in general. He has to be charged with the abetment of a particular offence; so that the ordinary rules of joinder must apply to offences punishable under Section 121, read with the other provisions of the Defence of India Rules just as in ordinary charge under the Penal Code. I do not however think this calls for any interference ; because the attention of the accused was drawn primarily to the offence of 26th March, 1941. Moreover, the accused pleaded guilty. It is difficult to see how a person who realises the nature of the charge and pleads guilty can be said to have been prejudiced by any misjoinder of charges.

6. Finally, Mr. Bhashyam contends that the sentence is too severe. It is no doubt a heavy one; but the question of sentence has been carefully considered both by the Sub-Divisional Magistrate and by the Sessions Judge, and it is not heavier than those imposed for similar offences in other cases. It does not therefore call for any interference in revision. The petition is dismissed.


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