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Taher HossaIn and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 687 of 1955
Judge
Reported inAIR1955Cal513,1955CriLJ1336,59CWN999
ActsIndian Penal Code (IPC), 1860 - Section 143; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 144, 210 and 254; ;West Bengal Security Act, 1950 - Section 6(6)
AppellantTaher HossaIn and ors.
RespondentThe State
Appellant AdvocatePhanindra Nath Sanyal and ;Preeti Bhusan Barman, Advs.
Respondent AdvocateJ.M. Banerjee, Adv.
Excerpt:
- .....present rule.8. mr. sanyal appearing in support of the rule has contended that neither of the two charges framed in the case could legally have been framed against the petitioners. the objection seems to be founded on two grounds; first, the evidence such as it is, docs not show that either of the two charges tan be sustained and secondly, the requirements of the law have not been satisfied to justify adoption of either of them. these contentions require examination.9. as i have already indicated five witnesses have been examined in the case and they must be taken by their evidence to have laid the foundation for the two charges that have been framed. prosecution witnesses 1 and 2 prove between them that an order under section 144, criminal p. c. had been promulgated within the area and.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This is a Rule calling upon the District Magistrate of Burdwan to show cause why the proceedings pending against the petitioners under Section 143, Indian Penal Code and under Section 6(6), West Bengal Security Act, 1950 should not be quashed.

2. The petitioners who are 20 in number are taking their trial before Sri B. N. Chatterjee, Magistrate, 1st Class, Asansol, who after examining several witnesses framed two charges against the petitioners on 30-4-1954. The charges that have been framed read as follows:

'(1) That you, on or about 9-11-1954 at Burnpur, P. S. Hirapur were members of an unlawful assembly the common object of which was to cause annoyance to the police officers on duty by violating order under Section 144, Criminal P. C. which was in force then over that area and thereby committed an offence punishable under Section 143, Indian Penal Code.

(2) That you on or about the same day at the same place loitered in the vicinity of Burnpur works declared to be a protected place by Government Notification No. 5306 P. D/- 22-8-1953 without any permit from the proper authority and thereby committed an offence punishable under Section 6(2), W. E. S. Act.'

3. The notification referred to in the second ccunt of charge above which was published in an extraordinary issue of the Calcutta Gazette on 22-8-1953 declared that the Indian Iron and Steel works at Burnpur, Asansol, bounded by the Works on all sides, were a protected place as defined by the West Bengal Security Act, 1950,

4. On 17-10-1954, the Sub-divisional Magistrate, Asansol, made and promulgated an order under Section 144, Criminal P. C. prohibiting the taking out of processions, holding of meetings, the assemblage of five or more persons etc., at any place within the limits of Hirapur Police Station, within which area the Indian Iron and Steel Works are situate.

5. It appears that the petitioners with others who arc workers of the Indian Iron and Steel Works had been collecting subscriptions individually in aid of the Workers' Organisation Fund. The petitioners' case is that the collections were being made entirely on a voluntary basis at some distance away from the gate and beyond the confines of the Indian Iron and Steel Works.

6. On 9-11-1934 the petitioners being found collecting subscriptions standing at different points outside the gate or the Indian Iron and Steel Works were arrested by the Officer-in-charge of Asansol P. S. for alleged violation of the order under Section 144, Criminal P. C. referred to above and intringement of the provisions of the West Bengal Security Act, 1950. An investigation followed which resulted in, the submission of charge-sheet against the petitioners who were eventually placed on trial before Sri B. N. Chatterjee, Magistrate, 1st Class, Asansol.

7. The prosecution examined five witnesses whereafter the learned Magistrate framed the two charges against the petitioners under Section 143, Indian Penal Code and under Section 6(6), West Bengal Security Act, 1950, as set out above. Thereafter the petitioners applied to this Court and obtained the present Rule.

8. Mr. Sanyal appearing in support of the Rule has contended that neither of the two charges framed in the case could legally have been framed against the petitioners. The objection seems to be founded on two grounds; first, the evidence such as it is, docs not show that either of the two charges tan be sustained and secondly, the requirements of the law have not been satisfied to justify adoption of either of them. These contentions require examination.

9. As I have already indicated five witnesses have been examined in the case and they must be taken by their evidence to have laid the foundation for the two charges that have been framed. Prosecution witnesses 1 and 2 prove between them that an order under Section 144, Criminal P. C. had been promulgated within the area and that the petitioners were found collecting subscriptions on the material date outside the works a few feet away from the gate.

The evidence of P. W. 3, Officer-in-charge of Hirapur P. S. is merely to the effect that the licensed were collecting subscriptions when they were asked to disperse and then they were arrested on the spot at a place presumably outside the gate. The cross-examination of this witness makes the position perfectly clear that the petitioners were not anywhere inside the protected place but merely in the vicinity of it. The evidence tit the remaining two witnesses is more or less of a formal character; P. W. 4 merely proved that he had drawn up the first information report in the case and P. W. 5, a Bench Clerk of the Sub-divisional Magistrate, proved the making of the order under Section 144, Criminal P. C.

This is all the evidence that has been adduced in the case upon which the learned Magistrate framed the charges against the petitioners.

10. Mr. Sanyal contends that upon this evidence neither of the two charges could have been legality framed against the petitioner. It is quite clear from the charge as framed under Section 143, Indian Penal Code that the common object alleged was to cause annoyance to the police officers by violating the order under Section 144, Criminal P. C. The real object therefore was not so much the commission of an offence involved in the infringement of the order under Section 144 as annoyance to the policemen; and violation of the order was merely the mode by which such annoyance was caused. Causing of annoyance to policemen is not an offence known to the law though disobedience to an order lawfully promulgated under Section 144 of the Code is a known form of criminal behaviour which the law punishes.

The infringement of the order under Section 144, Criminal P. C. moans and implies that there was disobedience of that order, the operative part of which forbade

'meetings, processions, assembly of five or more persons, carrying of lathis including hockey sticks, swords, tangis, daggers, or any other offensive weapons, use of any electric or mechanical microphone and loudspeakers either fitted to any motor vehicles or any other vehicle or any building or on any place to make any announcement, propagandas or to deliver any speech either singly or collectively within the area.'

Thus the formation of an assembly of five or more persons, the holding of meetings and processions, carrying of offensive weapons etc., use of microphones, loudspeakers, or other device for propaganda or for delivering speeches were prohibited. The evidence in the case upon which the charge has been framed does not even remotely suggest that the petitioners had collected or assembled in groups of five or more persons even while engaged in collecting the subscriptions or had indulged in any other form of forbidden activities.

The gravamen of the charge was the causing of annoyance to the police officers. I am afraid causing of annoyance to policemen cannot possibly be made the foundation of a charge of unlawful assembly under Section 143, Penal Code. There is no allegation that the petitioners had formed themselves into a procession or assembly of five or more persons. There is no allegation that they were holding a meeting or doing anything which the terms of the order made under Section 144 of the Code forbade.

In these circumstances, it must be held that the charge under Section 143, Penal Code cannot possibly be maintained.

11. With respect to the charge under Section 6(6), West Bengal Security Act, 1950, it has been contended on behalf of the petitioners that this charge as framed is not sustainable either. Section 6(1) of the Act provides as follows:

'6(1). If as respects any place or class of places the State Government considers it necessary or expedient that special precautions should be taken to prevent the entry or unauthorised persons, the State Government may by order declare that place, or, as the case may be, every place of that class to be a protected place; and thereupon, for so long as the order is in force, such place or every place of such class, as the case may he, shall be a protected place for the purposes of this Act.'

12. This sub-section authorises the State Government whenever it considers it necessary or expedient that special precautions should be taken to make orders declaring a place to be a protected place and as long as the order is in force the place mentioned in the order shall continue to be regarded as a protected place.

13. Then follows Sub-section (2) which is in these terms:

'No person shall, without the permission of the State Government (or of any authority or person authorised by the State Government in the behalf) enter, or be on or in, or pass over, of loiter in the vicinity of, any protected place.'

Sub-section (2) therefore forbids amongst other things loitering in the vicinity of a protected place without the necessary permission oi the State Government or of the person authorised by the State Government to give such permission in this behalf.

14. Sub-section (6) of Section 6 which is the punishing section reads as follows:

'If any person is in a protected place in contravention of any of the provisions ot this section, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.'

It is contended that Sub-section (6) which I have just read does not penalise any act in contravention of the provisions of Section 6, West Bengal Security Act, 1950 unless the person to be punished for committing the act 'is in a protected place.'

15. Mr. Banerjee appearing on behalf of the State has argued that Section 6, West Bengal Security Act 1950 has to be read as a whole and the intention of the legislature has to be gathered from the-different provisions contained in the sub-sections attached lo the section. It has been contended that the real effect of Sub-section (2) of Section 6 is absolute prohibition to enter a protected place, to pass over it or even to loiter in the vicinity of it and if this sub-section is read in conjunction with what immediately precedes it in Sub-section (1), the position becomes quite clear.

The legislature intended to punish, Mr. Baner-jce contends, all forms of contravention by providing in Sub-section (6) in a compendious manner the punishment for each and every contravention enumerated in different parts of the section.

16. As I have indicated, Sub-section (1) of Section 6 Rives power to the State Government to take action, by way of precaution whenever it considers necessary or expedient to do so, and declare a place to be-a protected place which will continue to retain that character as long as the order making the declaration remains in force.. Then follows Sub-section (2) which prohibits the doing of certain acts without the requisite permission of the State Government or of an authority nominated by it, but before Sub-section (6) could he availed of to punish in-fraction of Sub-section (2), it has to be examined whether the terms of Sub-section (6) are sufficiently comprehensive to include within it every form of contravention mentioned in Sub-section (2) of the section.

It is to be observed that the language of Sub-section (6) is that if a person 'is in a protected place' in contravention of any of the provisions of the section, the person concerned will be liable to punishment indicated in this sub-section. There can be no question that Sub-section (6) is a penal section and in order that a person might be pronounced guilty ot an offence under that sub-section it must be found that he comes clearly within tbe language of it.

True, Sub-section (2) forbids loitering in the vicinity of a protected place but Sub-section (6) punishes contraventinu or breach of it only by a person who 'is in a protected place.' It requires little authority to support the proposition that before a citizen can be punished the law must be unequivocal and the liability to punishment completely free from doubt. Although Sub-section (2) forbids loitering in the vicinity, I am afraid the provisions of Sub-section (6) are not sufficiently comprehensive to punish such loitering.

To be in a protected place is indeed very much different from being merely in the vicinity of it. Sub-section (6) cannot therefore be held to be sufficiently wide to cover all cases of infraction contemplated In Sub-section (2); the former is not coextensive with the latter which presumably covers a much wider held.

17. 'Protected place' is defined in Section 2(6) of the Act as a place declared under Section 6 to be 'a protected place' but does not include its vicinage. 'Vicinity' has not been defined in the Act and therefore the ordinary moaning must be attached to it. Thus even if it be held that the word is a term of relative import nevertheless in the absence of any special statutory significance attaching to it, the word vicinity must be understood in its ordinary dictionary meaning of the neighbourhood of a place different from the place itself.

18. There can however be little doubt that in the present case the petitioners were in the vicinity of the Indian Iron and Steel Works. The only violation or infringement alleged against them is that of loitering in the vicinity of the Works without a permit. And the evidence, makes it plain that they were outside the gate. The protected place in this instance was the area bounded by the Works. They were therefore not inside the Works and consequently Sub-section (6) docs not in terms apply to this case since the petitioners could not in any sense be said to be 'in the protected place'.

The Officer-in-charge of the police station stated clearly in his evidence that the accused were not inside the protected place but in the vicinity of it. I am afraid this allegation even if fully believed, is not enough to bring the petitioners within the mischief of Sub-section (6) of Section 6, West Bengal Security Act,' 1950.

19. The result, therefore, is that this Rule is (sic) absolute and the charges pending against the petitioners are quashed.

20. The petitioners are directed to be discharged from their bail bonds.


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