1. The petitioners in this case have been convicted under Section 7(2) of Act I of 1947 and sentenced to three months rigorous imprisonment.
2. The offence consists in their being members of the Communist Volunteer Corps and disobeying the provisions of G.O. No. 275 Public, dated 6th February, 1948. Under the provisions of the said G.O., the members of the Communist Volunteer Corps were prohibited from holding processions, meetings or assemblies or from performing drills or parades, with or without arms. It is only when the members of the Communist Volunteer Corps perform such drills they could be said to have committed an offence under Section 7(2) of Act I of 1947 as it is a violation of the G.O. passed on 6th February, 1948.
3. The proof that these petitioners are members of the Communist Volunteer Organisation consists in the testimony of P. Ws. 1 to 3 and 5. It is clear from the evidence of P.W. 5 that his version regarding the identification cannot be acted upon. According to the evidence of P.Ws. 1 to 3 they were examined on 3rd September, 1948 and 18th September, 1948, the offence having been committed on 30th August, 1948 and 31st August, 1948. In their examination on 3rd September, 1948, none of these three witnesses ever told the police officer that these petitioners were members of the Communist Volunteer Organisation, This implication that they were members of the Communist Volunteer Organisation emerged only in their examination on 18th September, 1948. The evidence, therefore, that these petitioners were members of the above organisation is a belated one and cannot be acted upon. There is no other evidence that these petitioners were members of the forbidden organisation. One of the ingredients of the offence has not been made out and the conviction cannot therefore stand. The petitioners are acquitted.
4. I cannot take leave of this case without pointing out the irregularity committed by the investigating officer in the case. Under Section 161(3), Criminal Procedure Code, the police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records. There is no doubt that in this case the investigating officer chose to record the statement of witnesses, but he admits in his cross-examination that he did not record the statement of each witness separately. This is a clear violation of the mandatory provision of Clause (3) of Section 161, Criminal Procedure Code. It is necessary that the investigating officers should conform themselves to the requirements of the section. The failure to do so very often results in the earlier statements of these witnesses not being made available to the accused, and the Court is not in a position to test the veracity of these witnesses. It is high time the investigating officers remember the salutary and mandatory provisions of Section 161(3), Criminal Procedure Code and conform to them. A copy of this order will be forwarded to the Inspector-General of Police.