(1.) The offence with which the petitioner was charged was that he used indecent language and behaved indecently towards P.W.1 Laxmana and P.W.2 Sheenappa in the premises of a Government hospital in Udupi, and that he had therefore committed an offence punishable under S.92(1) (o) of the Mysore Police Act, 1963.
(2.) There are at least two reasons why the conviction of the petitioner by the Magistrate is liable to be set aside. The first is that an offence is committed under Sec.92(1)(o) of the Mysore Police Act (Mysore Act No.4 of 1963) only when the act to which that clause refers is committed in contravention of a notification in the Official Gazette by which the provisions of sub-section(1) of S.92 are extended to a local area. That clause reads:
(3.) So, what is essential for the prosecution to establish in order to sustain a charge under this clause is that the provisions of sub-sec. (1) of this section had been extended by Government by a notification in the official Gazette to a particular local area, and that some act was committed by the accused in contravention of that notification. That that is so is clear from the words "whoever contrary thereto" with which sub-sec. (1) concludes. But the prosecution produced no notification which could be said to have been contravened even if the evidence given by P.Ws.1 and 2 could be believed. I do not accede to the argument of Mr.Public Prosecutor that it was the duty of the accused to defend the charge on the ground that no notification under sub-sec.(1) of S. 92 had been promulgated. On the contrary, the burden was on the prosecution to prove the promulgation of a notification to which S.92(1) refers to produce evidence that there was a contravention of that notification. Since the prosecution produced no evidence in proof of that essential ingredient which was so necessary to sustain the charge, the prosecution has to fail.