SHRIPAD RAMCHANDRA JOG Vs. EMPEROR

JUDGEMENT

(1.) These are three cases which have been argued together because they have certain features in common. Reference No. 88 of 1930 is a reference from the Sessions Judge of Nasik made to us under Section438, Criminal P.C. The other two cases Applications Nos. 412 and 426 are applications in revision by the accused persons. The features which the cases have in common are these: In all the cases the accused are charged with being members of associations rendered unlawful by a declaration of the Bombay Government notified in a Gazette Extraordinary dated 19 August 1930. It is alleged in each case that the association of which the accused were members was one of those referred to in the schedule to that declaration. Each of the accused was prosecuted under Section17(2), Criminal Law Amendment Act 14 of 1908, for taking part in the management of an unlawful association. But in the two revision cases the accused were actually sentenced under Section17(1) of that Act.

(2.) The first question which arises in all the cases is whether the Crown is bound to prove that the accused were members-of the association in question after it was declared unlawful. For the purposes of my judgment, I will assume that the accused were all members of the association in question immediately before it was declared unlawful. under Section16, Criminal Law Amendment Act, the Local Government is empowered by notification in the official Gazette to declare an association unlawful on the grounds therein mentioned, which are in effect that the association constitutes a danger to the public peace. under Section17(1) it is provided that whoever is a member of an unlawful association or takes part in meetings of any such association or contributes or receives or solicits any contribution for the purpose of any such association or in any way assists the operations of any such association shall be punished with imprisonment for a term which may extend to six months or with fine or with both. So that this subsection deals with the case of a person who is a member of an unlawful association or acts as such Sub-section (2) provides that whoever manages or assists in the management of an unlawful association or promotes or assists in promoting a meeting of any such association or of any members thereof as such members shall be punished with imprisonment for a term which may extend to three years or with fine or with both. So, that this subsection deals with the more serious offence of management of an unlawful association. Under the definition clause, Section 15, "unlawful association" includes an association which has been declared to be unlawful by the Local Government under the powers conferred by the Act. That definition was no doubt necessary because otherwise it might have bean contended that once an association is declared unlawful it can have no existence in law and that it is therefore impossible for any one to be recognized as a member of it in a Court of law. That point however cannot be raised, because the unlawful association includes an association which has been declared unlawful.

(3.) Now the first point taken on behalf of the Crown is this: The declaration was published (I will assume) on 21 August and the accused were arrested, in the two revision cases on 22nd August, and in the reference case on the 24th, and it is argued that if the accused are shown to have been members of the association on 21 August it must be presumed that they remained members on the 22nd and 24th. No doubt if no change had taken place in the status of the association that presumption would properly be made. But in all these cases a very material change had taken place in the status of the association between 20 and 22nd August. It had been declared unlawful, and membership thenceforth involved criminal liability. It seems to me that there can be no justification whatever for presuming that because a person was a member of an association which was lawful, he remained a member of that association after it had been declared unlawful. To make such a presumption would in my view be to ignore both the presumption of innocence, which is always made in a criminal case, and the presumption which is made in cases, whether civil or criminal, that people behave rightly and properly. The principle is embodied in the maxim omnia praesumuntur rite et solenniter essc acta donec probetur in contrarium, all things are presumed to be rightly done until the contrary is proved. It seems to me that when the Local Government declares a particular association to be unlawful the Courts must presume that the citizens will recognize that declaration, which is made after all for| their good, to preserve the public safety, and will loyally carry it out, and that they will cease absolutely to be members of the association declared unlawful, or in any way to act as such.