EMPEROR Vs. BALKRISHNA HARI PHANSALKAR

JUDGEMENT

(1.) In this case we have already held that we possess powers of superintendence. But the exercise of a power of superintendence is not the same thing as the hearing of an appeal. We have, I think, a discretion to revise or Bet aside any conviction under our powers of superintendence; but we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. It is suggested in this case that the order was illegal for this reason. The order was originally made by the District Magistrate of Sholapur, and it is an order which in terms has to be carried out within the District of Sholapur. But the order was served on the accused when he was in jail at Bijapur. The rights of the District Magistrate arise in this way. Section 57 of the Ordinance authorises the Local Government to invest the District Magistrate with the powers of the Local Government under Sub-section of Section 4, and in pursuance of that authority the Local Government did on January 5, 1932, publish a notification stating that in exercise of the powers conferred by Sub-section (1) of a, 57 of the Emergency Powers Ordinance, 1932 (II of 1932), the Governor in k Council hereby invests all District Magistrates including the Commissioner of Police, Bombay, with the powers of the Local Government under Sub-section (1) of Section 4 of the said Ordinance. The notification is not, I venture to think, very artistically worded. If the words be taken literally, the Governor invests all District Magistrates and the Commissioner of Police, Bombay, with these particular powers. which suggests that all the District Magistrates and the Commissioner of Police, Bombay, must act in the matter as a sort of corporate body, A power conferred on all. Magistrates is not the same thing as a power conferred on each Magistrate. But, when one has regard to the nature of the office of District Magistrate, and Commissioner of Police, Bombay, one cannot, I think, construe the order as meaning that, and I am disposed to think that what the order really means, and should be construed as meaning, is that the Government invests each District Magistrate with the powers of the Local Government in his particular District. It is then said that if that is the meaning of the order, the District Magistrate of Sholapur could not make an order and serve it upon somebody in Bijapur. It is not, 1 think, necessary to consider exactly what was the power of the District Magistrate of Sholapur in the matter, because I am clearly of opinion that if there was any irregularity, it was waived by the accused. He did not remain outside the District of Sholapur, and he did not take the point that the order had not been validly made, or had not been validly served upon him. If he had taken such a point, the order could have been re-issued and re-served ; but he came within the District of Sholapur, and for a considerable period obeyed the order, and, in my opinion, he waived any irregularity that there might have been in the order. It was then suggested that another defect in the order was that it was not justified by the terms of Section 4 of the Ordinance. Apart from other considerations, I think that Section 59 of the Ordinance is a complete answer to any argument of that sort, because that section provides that no proceeding or order purporting to be taken or made under the Ordinance shall be called in question by any Court. The Magistrate was, therefore, bound to treat the order as properly made.

(2.) Then the next point which was taken, and one which merits serious consideration, was with regard: to the sentence. I think that our powers of superintendence are certainly wide enough to enable us to alter a sentence. But, on the other hand, we have to remember that it is for the trial Court to inflict the sentence, and we are not justified in altering the sentence which the Magistrate has thought fit to inflict merely because we may think that we our- selves would have inflicted a different sentence, We have got to be satisfied that the Magistrate has erred on some point of principle. Apart from actual illegality in sentence, if one had a case in which the accused admitted breaking an order to report himself to the police, but said that his failure to report was due to an accident or was inadvertent, and that he had no intention of disobeying the order in future, and one found in such a case that the Magistrate had inflicted the maximum sentence, I think we should be bound to say that the Magistrate had not exercised, as he was bound to do, a discretion in the matter, and we could interfere. But putting it generally, I think we are in great difficulty in cases of this sort, because we have really no standard by which to measure the sentence. Where in the administration of the ordinary criminal law we are asked to revise a sentence, we have the experience of many other cases of a similar nature to guide us in determining whether the sentence is right or not, Here we are dealing with a matter which is made an offence under a particular Ordinance, in the interests of the preservation of public peace and for a limited time, and we have no experience which assists us in saying what sentence should be imposed. Now, what had the Magistrate before him in this case when he was considering the proper sentence ? He had, in the first place, the fact that the accused is a pleader, a man who knows the law, and a man of middle age. He also had the fact that the breach of the order was deliberate. The accused says that he thought that compliance with the order was humiliating, and that he was not prepared to obey the order which required him to report to the police. So that it comes to this that the accused deliberately disobeyed the order, and intends to disobey it in the future. What penalty ought the Magistrate to impose for a breach of that nature ? It was suggested with some courage by Mr. Thakor that the prosecution should have led evidence to "how that a breach of this particular part of the order to report himself to the police was a serious matter likely to lead to serious: consequences, and that in the absence of such evidence the Magistrate should have assumed that the offence was a trivial one. But, in my opinion, evidence that the offence was either serious or trivial would be wholly irrelevant and inadmissible. Such evidence would really involve a consideration of the grounds upon which the order was made by the executive officer, and that is a matter into which no Court can enter. The Magistrate had simply got the facts that an order had been broken, an order which was made in the L interests of the preservation of public peace, and which the Magistrate must assume was properly made ; that the order had been deliberately broken, and that there was no expression of regret by the accused and no promise to obey the order in future. He was bound to take into account the question of what effect on other people in his neighbourhood the breach of the order by the accused was likely to have, that is to say, he had to consider the effect of the sentence as a deterrent upon other people. On that particular point he is of course in a far better position to form an opinion than this Court, which does not know the local conditions. The fact that the accused thought it humiliating to obey the order was not a matter, as it seems to me, to which the Magistrate could attach any importance, If an order is made by a competent authority, it must be obeyed, and it can be no excuse for a person to say that he considers it a humiliation to obey it It might very well be that a man accustomed in his own country to go about armed would consider it humiliating if compelled to go unarmed. Nevertheless he would have to comply with an order which required him to go unarmed. Having regard to all the facts, there is, in my opinion, no ground, consistent with the principles on which this Court acts in revising sentences, which can justify us in interfering with this sentence.

(3.) There is one comment on the judgment of the learned Magistrate which is, I think, legitimate, and that is that he does refer in one place to about thirty youths having conducted themselves in a way in which he thinks they would not have done but for the example of such people as the accused. I think he was wrong in referring to a matter as one of fact which had not been proved in the case, and if I thought that his view as to the proper sen-tence had really been affected by facts which were not proved, I should have been in favour of sending the case back to him to ascertain what sentence he would have imposed on the basis that those facts ought not to be taken into account. But I am quite satisfied that those facts did not really affect the. sentence which he was imposing. He was considering the effect on the neighbourhood of conduct such as that of which the accused was guilty, and I think he only referred to the thirty youths by way of illustration. I do not think, therefore, that that is a ground on which we should be justified in interfering. I think, therefore, that we cannot make any order on the reference. Broomfield, J. 1. On the merits of the case, the first point taken by Mr. Thakor was that the District Magistrate of Sholapur had no jurisdiction to make the order under a 4 of the Ordinance, because at the time when the order was made the accused Was in jail at Bijapur. The accused is a pleader living and practising at Pandharpur in the Sholapur District, and it appears that after his arrest he was taken to the Bijapur jail because there happens to be no jail in Sholapur. In connection with this point, the first thing to note is that the notification of January 5, which has been already referred to and read, invested all District Magistrates including the Commissioner of Police, Bombay, with the powers of the Local Government under Sub-section (1) of Section 4, The notification follows the wording of Section 57 of the Ordinance. It would have been very easy to state in the notification that the District Magistrates were invested with the powers of the Local Government within the limits of their respective districts. But the Ordinance does not say this and as it stands, it appears to me to mean that every District Magistrate is given the powers of the Local Government under Sub-section (1) of Section 4 without territorial limit. It is, of course, a well settled principle of construction that the Courts cannot speculate as to the intention of the legislature unless the language is fairly capable of different constructions or unless the literal construction would lead to a manifest absurdity. Speaking for myself, and with the greatest deference to the learned Chief Justice, I feel a doubt as to whether this can be said to be so. It might, I think, be necessary to regulate the movements of a person within wider limits than a single district, or to regulate the user of property situated in more than one. And yet in an emergency it might not be possible to obtain the concurrence of several District Magistrates in time to avert the danger. I think it possible, therefore, that the notification may mean exactly what it says. But apart from that point, even if one is to apply the ordinary Criminal Procedure Code rule as to territorial jurisdiction, I am of opinion that the District Magistrate, Sholapur, was the proper authority to make the order which was made in this case, The jurisdiction of Courts under the Criminal Procedure Code ordinarily depends not upon the place where the accused happens to be at the time the order is made, but on the cause of action, if I may use a convenient expression which is more commonly used in connection with civil proceedings. We have to note the language of Section 4. before making an order the Local Government or the District Magistrate must be satisfied that there are reasonable grounds for believing that any person has acted, is acting, or is about to act, in a manner prejudicial to the public safety. Now, in this case it seems fairly obvious that anything done by this accused must have been done in Pandharpur where he lives and practises, and anything likely to be done by him was presumably likely to be done also in Pandharpur within the Sholapur District, The order clearly could not have been made on account of what the accused was doing in the jail at Bijapur, and, in my opinion, the District Magistrate of Bijapur could not have made this order. Possibly he could have made another kind of order under the section directing the accused to remain in Bijapur or to conduct himself in some particular manner within that district. The section itself provides that an order made is to be served on the person to whom it relates in the manner provided in the Code for service of a summons, and Section 73 of the Code enables a summons to be served outside the local limits of the Court's jurisdiction, In my view, therefore, the District Magistrate's order was a valid order. 2. Mr. Thakor's second point on the merits appears to be that the order of the District Magistrate was not one which could legally have been made under Section 4 We are only concerned with condition No. 7 of the conditions imposed by the order, because that was the only condition which has been broken, That condition was that the accused should report himself to the officer in charge of Pandharpur Town police-station three times a day. The condition was presumably imposed under Clause (d) of Section 4, Sub-section (1), of the Ordinance, which enables a, direction to be made that a person shall conduct himself in such manner, abstain from such acts, etc, as may be specified in the order. Mr. Thakor's argument is that the direction which is to be given must have reference to the reasons for the order given in the first paragraph of the section, that is to Bay, there must be reasonable grounds for believing that a person has acted, is acting, or is about to act, in a manner prejudicial to the public safety or peace. Therefore, Mr. Thakor says, the conduct directed must be such as to prevent the accused from acting in such a manner, Assuming that to be so, I can see nothing illegal in the condition imposed in this case, which appears to me to come clearly within the terms of S; 4. The Local Government, or the District Magistrate to whom the powers of the Local Government are delegated, is in the best position to decide what steps are necessary to preserve the peace, and it seems obvious that in certain circumstances ah order to a person considered to be of a dangerous, character to report to the police morning and evening may be a very effective method of doing so. It is to be noted that one of the conditions imposed in this case was that the accused should not leave Pandharpur. I think there is no real substance in this point either. 3. Another argument put forward by Mr. Thakor is of a more fundamental character, but I think even less tenable. He maintained that it is not enough for the prosecution to prove that an order has been made under the power given by the Ordinance, and that the order has been disobeyed, but that ifc must farther prove the justification for the order. This must be dona, if necessary fund in many cases it could only be done,) by calling the responsible authority as a witness. How the District Magistrate is to find time to deal with an emergency if he is being continually summoned to Court to justify his action, one does not know. It would obviously be necessary to find some other and probably more drastic method of enforcing the provisions of the Ordinance than a judicial trial. But I think this is not a correct statement of the legal position. Under Section 4 the District Magistrate and not the Court has to be satisfied of the necessity for the order. He is the sole judge of that necessity. The reasons that satisfy him may be confidential. In any case they do not concern the Court trying an offence under Section 21, The Court has only to be satisfied that an order or direction has been made in accordance with the provisions of Section 4, and that it has been disobeyed. That is the view taken by the Special Magistrate and by the Sessions Judge in appeal. I think it was the correct view.