STATE OF GUJARAT Vs. GEORGE FERNANDES

JUDGEMENT

(1.) This is an acquittal appeal from a trial resulting from what is commonly known as the agitation against the agreement between the Government of India and the Government of Pakistan on certain disputed territories in the Rann of Kutch which took place after the outbreak of hostilities between the two countries in the year 1965. It appears that as a result of this agitation some persons or groups of persons wanted to enter the Rann of Kutch and in particular to go to places known as Kanjarkot and Chhadbet in assertion of the fact that they were part of Indian territory Pursuant to the agreement between India and Pakistan the dispute between the two countries as regards territories in the Rann of Kutch was entrusted by the respective Governments to a Tribunal which gave its award on February 19 1968 It also appears that the Government of India took a decision to implement this award which led to the aforesaid agitation. It is said that as a result of this agitation a satyagrah was planned to be offered in protest against the award and therefore several persons in good numbers were invited to come to Kutch. It is also alleged that it was decided by the persons opposing the award that batches of volunteers may be sent to the Rann of Kutch with the object to obstruct the work which was being done at that time by the survey party of the Government of India and the State of Gujarat for the purpose of demarcating the boundary line. The learned District Magistrate of Kutch thereupon promulgated an order dated April 20 1968 under sec. 144 of the Code of Criminal Procedure (herein after referred to as the Code). He stated therein the grounds of making the order in question and then in the operative part thereof he said:-

(2.) Evidently the prosecution had to prove that there was in fact an unlawful assembly. This it had to prove in respect of both the heads of the aforesaid charge and this the prosecution could prove by proving the two-fold common object alleged in the charge. The learned trial Magistrate came to the conclusion that there was an assembly of five or more persons but the common as mentioned in the charge was not proved. Therefore he found that the assembly was not an unlawful assembly. If that was so it was clear that each of the accused was entitled to acquittal in view of the charge framed against him. ... ... ... ... ...

(3.) Now the first hindrance in the way of the prosecution in this case is created by the finding of the learned Magistrate that the order in question which is produced at Exh. 134 in English and Exh. 135 in Gujarati was beyond the competence of the District Magistrate who passed it and was as such not legal. We will therefore address ourselves to this aspect of the order. The relevant portion of the order has been reproduced earlier. The order was challenged on behalf of the defence in the trial Court on various grounds but one ground which appealed to the learned trial Magistrate was that this order addressed as it was to public generally prohibited the members of the public from entering the prohibited area and did not direct them to abstain from certain acts while frequenting or visiting that area. The learned trial Magistrate on a consideration of some of the decisions cited at the bar came to the conclusion that under sub-sec. (3) of sec. 144 of the Code when an order is directed to the public generally it must prohibit the act that is likely to be done by the public when frequenting or visiting a particular place and it cannot prohibit the entry or a visit to that place itself For this purpose the relevant portion of sec. 144 of the Code may be reproduced:-