BASUDEO NARAIN Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted of an offence punishable under Section 4, Ordinance 5 of 1932, on a finding that that he has been molesting certain shopkeepers at Darbhanga for the purpose of preventing them from dealing in foreign cloth. It appears that on 26 March 1932 Nabu Lal Singh, a constable who had been deputed to perform special duty in plain clothes, reported that the accused with two other persons were engaged in molestation of dealers in foreign cloth, and so had committed an offence punishable under Ordinance 5, and that he had also committed an offence under the Criminal Law Amendment Act. The first information report was attached to a charge-sheet which was forwarded to the Magistrate recommending that these persons should be prosecuted under Section 17(1), Criminal Law Amendment Act. The petitioner was tried in due course and was convicted of offences punishable under that Act and also under the Ordinance; but on appeal the conviction under the Criminal Law Amendment Act was set aside, while that under the Ordinance was affirmed.

(2.) An application to this Court for revision of the appellate order of the Sessions Judge has been admitted for hearing on two grounds; first, that the proceeding against the accused had not been regularly initiated; and, secondly, that the findings of the Courts did not disclose the ingredients of the offence defined in Section 3 of the Ordinance. Under Section 5 of the Ordinance a Magistrate may only take cognizance of an offence punishable under Section 4 on a report in writing of facts which constitute such offence made by a Police officer. Mr. Baldeo Sahay argues that the charge-sheet submitted in the present case is not a report in writing of the nature contemplated by Section 5 of the Ordinance, because the Sub- Inspector did not recommend prosecution under this Ordinance.

(3.) In submitting the charge-sheet the Sub-Inspector referred for an account of the facts to the statement of the constable Nabu Lal Singh, which was annexed to the charge-sheet, recommending that cognizance should be taken of an offence under Section 17, Criminal Law Amendment Act. But the annexed information alleged inter alia that the present petitioner had persuaded a Musalman to return a dhoti which he had purchased from a shop keeper named Rajbansi, which was followed by the picketing of Rajbansi's shop; and that he, accompanied by two volunteers, went from shop to shop asking the shop-keepers not to deal in foreign cloth, and on this report of facts constituting an offence under the Ordinance proceedings were instituted.