1. It appears to us that this rule must be made absolute upon at least one of the grounds on which it was issued. That ground is ground No. 1 and is to the effect that in the absence of a finding by the Magistrate that the petitioners were convening or collecting the assembly, or directing or promoting the procession, the conviction is fit to be set aside. By Section 32, Police Act of 1861, a person opposing or not obeying orders issued under various sections of which Section 30 is one is liable on conviction to a fine not exceeding Rs. 200. By Section 30, the District Superintendent of Police may, if certain preliminary conditions are satisfied, require by general or special notice that the persons convening or collecting certain assemblies or directing of promoting certain processions shall apply for a license. It is obvious that the purpose of the section is to give the police control of persons who organize or take charge of processions by requiring them to apply for a license. No punishment is prescribed by the Act for those taking part in a procession for which no license has been granted or applied for. It is clear on the evidence that in this case there was a procession in Baranagore on 20th October 1931. On 14th October 1931 the Assistant Superintendent of Police, Barrackpore, had issued a notice under Section 30, Sub-section (2) requiring conveners, collectors, directors, promoters of assemblies or processions of five or more men in the jurisdiction of the Baranagore Police Station to apply to him for a license for such assemblies or processions.
2. We assume, though it is by no means free from doubt, that the notice in the form in which it was given is a valid notice and within the powers of the Assistant Superintendent of Police as conferred by Sub-section (2). It is clear to us that the petitioners can only be properly convicted if it is established that they were directors or promoters of the procession of 20th October and were as such under an obligation to apply for a license for it. If they were merely ordinary members of the processions, Section 30, Sub-section (2) does not apply to them. There is no finding by the Magistrate that they wore such directors or promoters.
3. The only evidence on the record which by a stretch of imagination can be said to bear on this point is that the petitioners were at the head of the procession and were wearing garlands. It does not appear that they alone among the processionists were garlanded. But even if there were evidence to that effect we are of opinion that there was not sufficient evidence to justify the Magistrate in arriving at the finding that the petitioners were directors or promoters of the procession in question. As I have pointed out he has in fact come to no finding upon the point. The evidence being such as I have described we do not think that any useful purpose will be served by ordering a retrial. We make the rule absolute, set aside the conviction and sentence and direct that the fines, if paid, be refunded.