1. This rule is directed against the order dated 20th December 1939 under which Mr. K. C. Gupta, Sessions Judge of Malda, affirmed the conviction of the petitioner under Section 32, Police Act (Act V of 1861). The case for the prosecution was to the effect that, on 6th September 1939, the petitioner was granted a license by the Superintendent of Police of Malda under Section 30 (3), Police Act, to form a procession. One of the conditions of the license was to the effect that no weapons were to be carried by any persons in the procession. The procession was actually held on 7th September 1989 and according to the prosecution about five thousand people took part therein, of whom about one hundred people carried lathis. The petitioner was thereafter prosecuted under Section 32, Police Act, on the allegation that he had violated one of the conditions of the license. He was placed on his trial before Mr. R. Barua, the Magistrate of Malda, who convicted him under Section 32, Police Act, and sentenced him to pay a fine of Rs. 100 or, in default, to undergo simple imprisonment for three months. His conviction was affirmed by the learned Sessions Judge of Malda. In his judgment, the learned Sessions Judge came to the conclusion that the circumstances which had been proved did not show unmistakably that the petitioner had knowledge of the fact that some members of the procession were carrying lathis. He held however that knowledge was not an essential ingredient in an offence under Section 32, Police Act, and he therefore came to the conclusion that the petitioner had been rightly convicted.
2. Although the learned Judge pointed out that the licensee of a procession is bound to take proper care to see that the conditions of the license are not violated, it appears from the judgment of the lower appellate Court that he did not come to a clear finding on the point whether or not the petitioner had violated the conditions of the license granted to him by failure to take proper care to ensure that these conditions were fulfilled in regard to the prohibition against the carrying of weapons and it was on this ground that this rule was issued. The license which was granted to the petitioner was in a printed form 'B. P. Form No. l' and by this license he was authorized to form a procession subject to certain conditions. Twelve conditions were expressly mentioned in the form, the first of these being that the licensee or his representative should accompany the procession and carry the license which he should show on demand to any police officer or Magistrate. Condition No. 11 was to the effect that no weapons should be carried by any persons in the procession. It seems to me to be clear from the terms of the license that a general duty was imposed upon the licensee to satisfy himself that the conditions were fulfilled, but, at the same time, the only condition which directly affected the licensee personally was condition No. 1 which made it necessary for him or his representative to accompany the procession and produce the license on demand. As regards the other conditions any violation thereof would of course subject the persons actually violating them to the penalties prescribed by Section 32, Police Act, and it is for consideration whether in a case such as this the licensee has rendered himself liable to these penalties. Section 32, Police Act, is in the following terms:
Every person opposing or not obeying the orders issued under the last three preceding sections, or violating the conditions of any license granted by the District Superintendent or Assistant District Superintendent of Police for the use of music, or for the conduct of assemblies and processions, shall be liable on conviction before a Magistrate to a fine not exceeding two hundred rupees.
3. In my view, the expression 'violating the conditions,' which has been used in the section connotes the idea of direct violation on the part of the person whom it is sought to prosecute, for example, by carrying a weapon himself or by expressly permitting weapons to be carried or passive violation by not taking due care to see that the conditions of the license were fulfilled. Admittedly, in this case, the petitioner was not guilty of any direct violation of the conditions in view of the finding of the learned Sessions Judge to the effect that it had not been proved that he had any knowledge of the fact that weapons were being carried. The question has however not been considered by the learned Judge as to whether he violated the conditions by not taking due care to see that they were fulfilled. In these circumstances it is necessary for the ends of justice that the orders of the Courts below whereby the petitioner was convicted should be set aside and this ease be remanded to the Court of some Magistrate other than Mr. E. Barua for further consideration in the light of the above observations. The learned Magistrate may take such further evidence as he considers necessary in the matter and will allow the petitioner to adduce evidence in rebuttal if he so desires, but otherwise he will reconsider the case on the evidence which is already on the record. The rule is accordingly made absolute. The fine will remain in deposit in the Court below.