PUBLIC PROSECUTOR Vs. VADLAMUDI SATYANARAYANA

JUDGEMENT

(1.) The three respondents, who were accused Nos. 8, 10 and 9 in the Court of the Sub-divisional First Class Magistrate, Bandar Division at Masulipatam, were convicted together with accused 1 to 7 for offences under Secs.143 and 145 of the Indian Penal Code and Section 32 of the Police Act, V of 1861. They were sentenced under Section 143, I.P.C., to one month's rigorous imprisonment and under Section 145 to rigorous imprisonment for six weeks each, the sentences to run concurrently; and they were called upon to execute bonds for Rs. 200 each with two sureties each for similar amounts to keep the peace for one year after the expiry of the sentences. As the accused had been sentenced under Sections 143 and 145, I.P.C., no sentence was passed with regard to the charge under Section 32 of the Police Act. The accused 8, 9 and 10 appealed to the Sessions Judge of Kistna Division who set aside their convictions under Secs.143 and 145 of the Indian Penal Code but upheld the conviction under Section 32 of the Police Act.

(2.) The facts of the case are as follows: His Excellency the Governor of Madras paid a visit to Masulipatam on the 8 February last. Some public meetings were held there by Congress adherents and resolutions for boycotting the Governor's visit, for bringing about a hartal of shops in the town on the day of his visit and for taking a procession at the time of his visit of persons carrying black flags in their hands and crying "Governor, go back" were passed. The Circle Inspector of Police of Masulipatam apprehending a breach of the peace made a report to the District Superintendent of Police, Ex. C, and the latter after obtaining the permission of the District Magistrate issued an order under Section 30(2) of the Police Act to the effect that persons collecting assemblies or directing or promoting processions as contemplated were to apply to him for a licence before so doing. This notice is Ex. B, and was given to Valluri Rama Rao, one of the leading spirits at the meeting already referred to. A similar notice, Ex. F, was issued which is a notice generally to all concerned. These notices are dated the 7 February, 193Q. On the morning of the 8 February, when His Excellency the Governor was expected to arrive, a procession of about sixty people started at about 8 o clock in the morning and went along the Fort Road towards the Robertson Square, which included a part of the route along which His Excellency was to go. Accused 1 and 2 were at the head of the procession and the other persons included in the procession were the other accused and the three respondents. The Sub-Inspector of Police, P.W. 1, met the procession on the way and told its members about the order Ex. B and served copies of it on the 1 and 2nd accused who were leading the procession individually. The procession then turned back and entered the premises of the Spinners and Weavers Association and a meeting was held there inside the building. The Sub-Inspector of Police followed the procession to the Association but did not enter the premises but waited outside on the road. There is no evidence on the prosecution side as to what took place within the building although there is some evidence on the defence side. The 1 and the 2nd accused came out of the premises and according to the prosecution case formed themselves into a procession carrying black flags and crying "Governor, go back." As before stated the 1 and 2nd accused were leading the procession. P.W. 1 asked them whether they were going to disobey the order and when they said that they were, he arrested them then and there. It must be remembered that they had already been served with copies of the notice Ex. B. The 3 accused then came forward and tried to lead the procession. He was also served with a copy of the order but on persisting in his attempt he was also arrested. The learned Sessions Judge finds that after the 1st, the 2nd and the 3 accused were arrested accused 4 to 11 one after the other put themselves at the head of the procession and began to direct it and this finding of fact is of considerable importance in this case. They were arrested by P.W. 1 one after the other. The prosecution case is that before arresting these persons P.W. 1 gave oral orders to all persons in the procession to disperse but that they refused to do so. It is only of course on those facts being found that the accused can be convicted under Section 145, I.P.C. The learned Sessions Judge goes on to say with regard to the conduct of the accused 4 to 11: "At that time they were not merely in the rank and file of the procession. They had begun to direct it." The defence version with regard to the accused at this time is that it was resolved inside the premises in view of the order of the Superintendent of Police that they should not go out in procession but that each man should go his own way carrying a black flag shouting "Governor, go back." That sets up the case that each person was acting individually and not collectively with the others. That version is not accepted by the learned Sessions Judge in view of the evidence of D.W. 2 and D.W. 1.

(3.) The learned Sessions Judge, however, acquitted the three respondents of the charge under Secs.143 and 145, I.P.C. and in acquitting them adopts the dissenting" judgment of Das, J. in King-Emperor V/s. Abdul Hamid (1923) I.L.R. 2 Pat. 134 and dissents from the ruling of the two Judges forming the majority of the Special Bench which decided that case. He says that there is no evidence that the respondents acted together with others with the common object of resisting the execution of the District Superintendent's order and also holds that in this case there was no order to disperse and therefore no refusal and that there was no overt act of resistance. With regard to the evidence in this case of ?in order to disperse, we think that the prosecution evidence does not sufficiently prove that any such order was given. Therefore the respondents cannot be convicted under Section 145 of the Indian Penal Code of having refused to disperse after such an order. There remains, however, their conviction under Section 143, I.P.C. For the prosecution it is contended that the second clause of Section 141 applies to this case. Section 141 defines an unlawful assembly as follows: An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing the assembly is-- Second--to resist the execution of any law, or of any legal process.