PROBODH CHANDRA CHAKRAVARTY Vs. EMPEROR

JUDGEMENT

(1.) This Rule has been issued upon the District Magistrate of Rajshahi to show cause why an order directing the petitioner to pay a fine of Rs. 50 under Section 28, Ordinance 2 of 1932, should not be set aside on the ground that there being no finding that the conviction of Paresh under Section 4, Ordinance 5 of 1932, was for an act prejudicial to the public safety or peace, Section 28, Ordinance 2 of 1932, has no application and that the learned Magistrate erred in law in holding otherwise. In the first place it may be pointed out that the section itself does not require any finding that the conviction was for an act prejudicial to the public safety or peace; but it does require that the offence is one which in the opinion of the Court has been committed in furtherance of a movement prejudicial to the public safety or peace. The question is whether on the ground that there is no finding that the offence was in the opinion of the Court committed in furtherance of a movement which is prejudicial to the public safety or peace, the Magistrate erred in law in imposing a fine upon the guardian of the accused.

(2.) A preliminary point was raised as to whether inasmuch as under Section 51, Ordinance 2 of 1930, there is a provision that no Court shall have authority to revise any order or sentence passed under this Ordinance this Court has any jurisdiction to interfere with that order or sentence. It has been argued that under Section 107, Government of India Act, read with Section 65 this provision of the Ordinance is ultra vires; but in view of the opinion we are inclined to take on the merits, it is not necessary to come to any decision on the point. On the merits we find that under Section 47 of the Ordinance no Court constituted under this Ordinance shall try any offence unless it is an offence punishable under this Ordinance or has been committed in furtherance of a movement prejudicial to the public safety or peace. The very fact that the Court passed this order shows that the Court was of opinion that the act constituting the offence was committed in furtherance of a movement prejudicial to the public safety or peace as otherwise the Court would have had no jurisdiction.

(3.) Under Clause (2), Section 47, we find that the question whether or not the offence tried by the Court constituted under the Ordinance was of the nature described in sub Section (1), that is to say, was committed in furtherance of a movement prejudicial to the public safety or peace shall not be raised in any Court other than the Court trying the offence. The present case is a case of peaceful picketing and was tried by a Special Magistrate empowered under the Notification in the Calcutta Gazette dated 7 January 1932. This Notification empowers such Magistrates to try offences under the Prevention of Molestation and Boycotting Ordinance which are committed in furtherance of a movement prejudicial to the public safety or peace. This again shows that unless the act complained of was one committed in furtherance of a movement prejudicial to the public safety or peace, the trying Magistrate had no jurisdiction; and inasmuch as this point was not raised either in the Court in which the boy was convicted or in the Court in which the father was fined under Section 28 of the Ordinance, this is a point which we should not allow the petitioner to raise in this Court.