1. In this case Jagadish Narain Tewary was convicted by one of the Honorary, Presidency Magistrates, Calcutta, on 2nd December 1931, under Section 109, I.P. C, read.with Section 62-A, Sub-section (1), Clause (e), Calcutta Police Act, 1866, and sentenced to pay a fine of Rs. 75 or in default, to undergo seven days' simple imprisonment. Section 109, I.P.C, provides for punishment of abetment where an offence is committed in consequence of the act of abetment and no express provision is made by the Code for the punishment of such abetment. Section 62-A (1), Calcutta Police Act, 1866, reads as follows:
The Commissioner of Police and, subject to the orders o the Commissioner of Police, every police officer of a rank not inferior to that of Sub-Inspector, may, with a view to securing the public safety or convenience, but not so as to contravene any rule made under the last foregoing section, or the provisions of any license granted under any such rule, give all such directions, either orally or in writing, as he may consider necessary to....
2. Then follows a catalogue of matters and then Section 62-A(1)(e) runs thus:
Regulate and control music, the beating of drums, tomtoms and other instruments and the blowing or sounding of horns or other noisy instruments, in any street or any public place other than public buildings and the precincts thereof.
3. Jagadish Narain Tewary was in fact charged with abetting a man whose name is unknown to commit an offence under Section 62-A(1)(e) by the blowing of a bugle at a public meeting which was held at Haliday Park. It may be assumed for the purposes of the case that Haliday Park is a public place within the meaning of the section. It appears that on the 12th October last year there was a meeting at Haliday Park held at about half-past five in the evening and amongst the audience there were a number of persons described as 'volunteers' one of whom from time to time sounded a bugle. Jagadish Narain Tewary was the President (or Chairman) of the meeting. It appears from the evidence that he was elected to that office just before the meeting began. There is no evidence to show that he had any knowledge before hand that a bugle would be blown by anyone in the course of the meeting. A Police Inspector S.N. Mukherji requested the man sounding the bugle not to do so and in making that request he was apparently acting under the powers conferred on police officers under Section 62-A(1). It was proved in the course of the hearing before the learned Presidency Magistrate that both Inspector S.N. Mukherji and another Sub-Inspector made attempts to ascertain the name of the man who was blowing the bugle, but he refused to give his name or disclose his address. No doubt the police officers therefore might have taken the man into custody under the powers conferred on police officers under Section 57, Criminal P.C, but that they did not do so, apparently for the reason that the name and the identity of the President were, known to them and they thought, it better to proceed against him in the matter. Jagadish Narain Tewary was accordingly charged, as I have said, with abetment of the offence committed by the blower of the bugle.
4. The point urged before the learned Presidency Magistrate on his behalf was that merely because he was President of the meeting he could not rightly be held liable for acts done by a person forming part of the audience. The learned Presidency Magistrate in the course of the judgment which he gave says:
In the present case; l am inclined to hold the view that since the bugle was sounded at intervals, and Inspector S.N. Mukherjee while acting under Section 62-A, Sub-section (1) of the Act, directed the volunteer, within the accused's hearing, not to sound the bugle, it was the clear duty of the President to stop further sounding of the bugle. As the President, he had the, control over the proceedings, and the intermittent sounding of the bugle formed a part of the proceedings. By failing to discharge this duty, the President has clearly been guilty of an illegal omission as contemplated in Section 109 I.P.C.
5. Upon that view of the matter the learned Presidency Magistrate came to the conclusion that the offence with which Jagadish Narayan Tewary was charged, had been properly substantiated. The rule was issued on a number of grounds and it has been cogently argued before me by Mr. Santosh Kumar Basu on behalf of the petitioner that, first of all, as the charge only had reference to an offence under Section 62-A(1), the prosecution had not succeeded in showing that the man who sounded the bugle had committed any offence whatever. It was contended that no evidence had been given to show that Inspector Mukherjee at the time when he orally asked the bugler to desist was properly armed with authority given by the Commissioner of Police-either under any general or particular order to deal with the matters mentioned in Section 62-A. So far as that point is-concerned, I think there is no substance in it and the view expressed by the learned Honorary Presidency Magistrate in the explanation which he has given is correct. He says:
The position is that for the purpose of Section 62-A (I), it is not necessary to act under any orders or to prove that the officer concerned was acting under any orders. The section says: The Commissioner of Police, and subject to the orders of the Commissioner of Police, every police officer of a rank, etc., may with a view to securing public safety or convenience, etc. What this section contemplates is that the Commissioner of Police may himself, if personally present, give certain directions; if he is not personally present, any of his subordinates not being one below the rank of a Sub-Inspector may give such directions. In the latter case, the, section makes the order of such officer subject to the orders of the Commissioner of Police and not with the previous sanction-of the Commissioner of Police. The effect is that any subordinate police officer down to a Sub-inspector may give the direction contemplated in this section and for this purpose he need not be previously authorized. If the Commissioner of' Police so chooses he may by his direction supersede or alter the directions so given. If it was the intention of the Legislature to contemplate previous authority by the Commissioner of Police the words used would have been with the previous sanction of the Commissioner of Police, or words to the same effect.
6. In my view, that is the correct interpretation of the section. I have no doubt whatever that it was well within the powers and duties of Inspector Mukherjee to request that there should be a cessation of the blowing of the bugle.
7. The real point for determination in this case is whether or not it can be rightly said that the prosecution fully established that Jagadish Narain Tewary was 'abetting' the person who was sounding the bugle. The learned Presidency Magistrate based his decision upon the fact that the accused, as the President of the meeting, did not take any steps to prevent the blowing of the bugle although he must have heard and undoubtedly did hear the order given by the Sub-Inspector with regard to it. The learned Presidency Magistrate seems to think that was an 'illegal omission' but one must bear in mind that the words illegal omission' in connexion with the definition of abetment have reference to an intention of 'aiding the doing of a thing' and it is a little difficult to understand how it can reasonably be said that failure to request the blower of the bugle to desist could amount to an intentional aiding of the blowing of the bugle after it had been prohibited by the Inspector. Further, I have very great doubt whether the mere fact that the Chairman of the meeting failed to request the person sounding the bugle, to desist could amount to an 'illegal' omission at all. I think, to establish that position, it is necessary to show that there was a legal duty on the Chairman of the meeting to take action in the circumstances. Section 107, I.P. C, lays down three main ways in which persons can be said to abet the doing of a thing. They are as follows:
A person abets the doing of a thing who (1) instigates any person to do that thing, or (2) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or (8) intentionally aids by any act or illegal omission, the doing of that thing.
8. It is necessary to see whether in the present instance it can properly be said that the accused as the President of the meeting either instigated the sounding of the bugle or conspired with the person who blew it, to have it sounded. The learned Presidency Magistrate seems to have assumed that the accused as Chairman of the meeting must have known that a bugle was going to be blown at regular intervals. It was suggested that the accused as Chairman of the meeting must have known that the bugle would be sounded at regular intervals during the proceedings. But in the circumstances of this case it seems to me more than a little doubtful if that was so. At any rate it seems clear that the prosecution did not succeed in establishing that was, in fact the case. As I have said the evidence goes to show that Jagadish Narain Tewary was only nominated as President of the meeting or invited to take the chair just as the meeting was about to begin. There was no evidence, in my opinion, that he had arranged that the bugle should be blown or that he, in fact, knew that a bugle would be blown at regular intervals. It may well be that some persons other than the gentleman who took the chair, arranged the details of the meeting, and that the Chairman himself knew no more of the programme of the proceedings than the names of the persons who would address the meeting. Having regard to the evidence in this case, I am of opinion that the learned Honorary Presidency Magistrate was not justified in drawing the inference which he did. Inspector Mukherji gave his evidence with scrupulous fairness and in no wise attempted to overstate the case. His evidence and that of the other police officer do not seem to me quite sufficient to establish that there was such guilty knowledge on the part of the Chairman so as to justify the suggestion that he had 'conspired' in the legal sense with the person who blew the bugle.
9. I associate myself with the observations made by Panckridge, J., on a similar point in the case of Emperor v. Bepin Behari Ganguli : AIR1932Cal549 . It is necessary that in a case of this description something more should be established than the mere fact that the Chairman of the meeting took no steps to prevent an objectionable and unlawful action on the part of some person or persons at the meeting. It is quite true that the present case is somewhat stronger against the accused than is the case tried before Panckridge J., because here there was evidence that the person blowing the bugle was a 'volunteer' and, therefore presumably, some kind of official connected with the meeting and there was the further fact that the bugle was blown at regular intervals and apparently between each of the speeches for some definite purpose. But nevertheless, in the circumstances in which Jagadish Narain Tewary came to be the Chairman of the meeting he may not have known that the blowing of a bugle was a part of the proceedings either because it did not appear on any agenda before him or because he had not been given directions about it at the time when he took the chair. I think the case for the prosecution, therefore falls short of the full proof of the offence with which Jagadish Narain Tewary was charged.
10. In dealing with the matter, the evidence as given before the learned Honorary Presidency Magistrate must alone be considered and any further facts which might have been within the knowledge of the police and all other extraneous considerations excluded. Dealing with the matter solely upon the evidence I think that the accused was entitled to the benefit of the doubt and, therefore the conviction must be set aside. The Rule is made absolute and the fine if paid should be refunded.