EMPEROR Vs. JAYANTILAL JAGJIVAN MULJL

JUDGEMENT

(1.) THIS is an application in revision against the conviction of the three accused under Rule 120(A) of the Defence of India Rules, 1939, by the Presidency Magistrate, 6th Court, Mazagaon, Bombay. The facts leading to the prosecution of the accused are contained in the statement of Police Inspector Kilbourne of Gamdevi Police Station. On March 1, 1943, a printed handbill (exhibit a) was brought to his notice, purporting to have emanated from the Bombay Provincial Congress Committee and announcing that public prayers would be held on the Chaupati sands at 7 p.m. on March 2, 1943, which was the last day of Mr. Gandhi's fast. It requested men, women and children to attend that meeting in thousands. No permission of the Commissioner of Police had been taken for holding such a meeting as required by a notification issued by Government under Rule 56(1) of the Defence of India Rules. That sub-rule empowers the Central Government or the Provincial Government for the purpose of securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, by general or special order, to prohibit, restrict or impose conditions upon, the holding of or taking part in public processions, meetings or assemblies, Under that sub-rule Government of Bombay promulgated an order, G.D.V. 102 dated August 9, 1942, to the effect that no public procession, meeting or assembly should be held in any place in the Province of Bombay except with the previous permission in writing of the District Magistrate of the district concerned or the Commissioner of Police, Bombay, as the case might be, and it also provided that no person should take part in any procession, meeting or assembly in respect of which such permission had not been obtained. Sub-rule (4) of Rule 56 makes it penal to contravene any order made under sub-r. (I), and sub-r. (3) empowers any police officer to take such steps and use such force as may be reasonably necessary for securing compliance with any order made under the rule. When, therefore, Inspector Kilbourne saw the handbill, he proceeded to the Chaupati sands at about 6 p.m. on March 2, 1943, with several other officers and constables from his police-station in order to prevent the holding of the contemplated meeting in contravention of the order issued by Government. At about 6.30 p.m. he saw that a large number of women were squatting on the sands shouting slogans and attempting to hold a prayer meeting as announced in the hand-bill. He arrested sixty-two of them and forwarded them to the police-station. Shortly afterwards some boys met there to hold a meeting near the Tilak statue. The Inspector had them dispersed. He arrested four of those) boys and sent them to the police-station. He found that there was a good deal of excitement at that time and, therefore, decided to clear a portion of the sands within a radius of seventy yards from the statue. He issued orders to that effect to his subordinates and had the sands almost completely cleared in that area. Police Sub-Inspector Agha, who was acting under; the orders of the Inspector, says that when he was engaged in clearing the sands, as directed by the Inspector, he came across accused No.2 and told him to get away. Accused No.2 did not listen to him and started arguing with him. He, therefore, took him to Inspector Kilbourne. The Inspector advised him not to create any disturbance but to go away quietly. But he continued to argue with him and refused to leave the place, contending that the police had no right to remove him from the sands. Inspector Kilbourne told him that if he did not obey his order he would be compelled to arrest him, and when accused No.2 still persisted in remaining there, he was arrested and sent to the police-station. Five minutes thereafter accused Nos. 1 and 3 were seen at a; distance of ten or twelve yards from them, and as people were collecting there, Inspector Kilbourne went up to them and asked them to, move on. They also questioned his right to remove them from the sands, and as they refused to leave the place and maintained that they had a right to be on the sands, they were arrested. A charge-sheet was then sent up against all the three accused and they were tried on the charge of interfering with the police-officers performing the duty of securing public safety and maintaining public order imposed on them in pursuance of Rule 56(3) of the Defence of India Rules, and were convicted under Rule 120(6) of the Defence of India Rules.

(2.) A preliminary legal objection is urged against the trial on the ground that the learned Magistrate was wrong in taking cognizance of the offence without a report in writing made by a public servant as required by Rule 130(1) of the Defence of India Rules. That sub-rule provides that no Court shall take cognizance of any alleged contravention of the rules except on a repoit in writing of the facts constituting such contravention made by a public servant. It Is true that there is no separate complaint or report made to the learned Magistrate by the Police Inspector, but the prosecution was started on a charge-sheet sent by him. In that charge-sheet, which was signed by him, he mentioned the names of the three accused and alleged that "they at Bombay on the 2nd day of March 1943 did interfere with the Police Officers performing their duties in maintaining peace and order at Chaupaty,and thereby committed an offence punishable under Rule 120(b) of the Defence of India Rules". Thus this charge-sheet set out the facts constituting the contravention of the Defence of India Rules committed by the accused and can be regarded as the Police Inspector's report made to the Magistrate in writing. It is argued that the charge-sheet does not specifically state what were the duties in performing which the police-officers were then engaged, nor does it recite that they were clearing the sands in order to prevent an unauthorised meeting being held. We do not think that it was necessary for the Inspector to set out all the details in the report which he was required to make under Rule 130(1) of the Defence of India Rules before the Magistrate could take cognizance of the offence. The report sufficiently gave an idea of the offence for which the accused were to be tried and the learned Magistrate was justified in taking cognizance of that offence.

(3.) ACCUSED No.1 says that at about 7.10 p.m. on that day he left his house situated behind Wilson College Hostel with his brother accused No.2 and met his maternal uncle's son Mahendra, the brother of accused No.3, on Chaupati footpath. Proceeding further they met accused No.3 at the junction of Sandhurst Road and Chaupati Road. ACCUSED No.3 was then going from the Churchgate side. After some time accused No.2 walked away a few paces and in the meantime Sub-Inspector Agha approached them and abused Mahendra. ACCUSED No.1 remonstrated with him, and when this was going on Inspector Kilbourne arrived and the matter was referred to him. But the Inspector refused to listen to him and ordered him to move away from the footpath. When he refused and requested him to give him a hearing, he was arrested. ACCUSED No.2 says that seeing some acquaintance sitting on one of the benches on the footpath, he went up to him, and when he was talking with him, Sub-Inspector Agha asked him to clear away. He told the Sub-Inspector that he was standing on the footpath and there was no necessity for his going away. But the Sub-Inspector paid no heed to him and took him to Inspector Kilbourne who without giving any hearing to him asked him to go to the police-station and lodge a complaint there. He willingly accompanied a police constable to Gamdevi Police Station and asked to be shown to the Police Superintendent, but he was told that he was under arrest. ACCUSED No.3 also supports this story and says that when he met accused Nos. 1 and 2 and his brother Mahendra at the junction of Sandhurst Road and Chaupati Road when he was going from Churchgate side along the footpath, Sub-Inspector Agha abused Mahendra and when they remonstrated they were arrested.