EMPEROR Vs. RAGHUNATH VENAIK DHULEKAR

JUDGEMENT

(1.) This is an appeal by Government against as acquittal by the Sessions Judge of Jhansi of two members of the public, who had been convicted and severely sentenced by the District Magistrate for an offence under Section 188 of the Indian Indian Penal Code. They had been charged both under Secs.151 and 188 and the Magistrate, without acquitting under Section 151, held that it was superfluous to consider it. The appeal filed by Government treats the charge as one under Section 188. The complaint against the accused is that they, being two Brahmans, and men of education engaged in public life in Jhansi, one of them Raghunath Venaik Dhulekar being a High Court Vakil, and the other Atma Ram Kher being also a High Court Vakil, and Chairman of the Municipal Board of Jhansi, deliberately disobeyed a lawful order of the Sub-Inspector in the streets of Jhansi in the presence of a large number of people. The Sub-Inspector says that he was fetched by a message, and went on a bicycle in consequence of a report that a procession of a considerable body of Hindus, headed by persons playing English musical instrument, was threatening to pass a Muhammedan mosque playing music, and that there was reason to fear the outbreak of a riot. The witnesses on both sides agree that the playing of music in a procession passing the Muhammedan moaque was known to everybody to be a cause of offence to Muhammedans, and was just the conduct that was likely to lead from small beginnings into an extended fight and riot, with the risk of loss of life. The Sub- Inspector's evidence was that he ordered the music to stop, and he ordered the procession not to advance while playing music in the direction of the mosque, and that the two accused who were by this time in charge of the procession, and who ware at the head of it playing musical in struments, defied his authority, told him that he had no power to give such an order, and did in fact make a definite and determined show of disobedience by continuing to play the music, and by advancing a certain number of steps in the direction of the mosque, challenging the Sub-Inspector to use force and to take the instruments from them. That this is a substantially accurate account is perfectly clear upon the evidence. It is sufficiently established, even if one confines oneself to the written statement put in by the accused and the witnesses whom they called. Chand Singh, one of their witnesses stated that after the Sub-Inspector had ordered them to stop, the two accused took up a drum and drum-sticks, and advanced in the direction of the mosque, saying that they would advance playing the instruments, while the Sub Inspector declared that he would never allow them to do so. The same witness also stated that the Hindus wanted to play music in front of the mosque, and the Muhammedans objected to music being played in front of their mosque. A witness, Dabi Prasad, called for the defence, stated that the Darogha gave a verbal order, "stop the music and stop the procession," and that the accused insisted on advancing with music, and did so for two or three paces. He further stated that there had been trouble between the Hindus and the Muhammedans before the Ramlila, during Ramlila, and since Ramlila, over the question of music in front of the mosque. Babu Bodh Raj, who is also a vakil in Jhansi, and a correspondent for various newspapers, also stated that the communal feeling was vary strained over the question of music in front of the mosque and although the accused declared in their written statement that they intended the Sub Inspector no harm, this witness states that the Sub-Inspector asked him not to mention the matter in his newspapers, clearly showing that the conduct of the accused was not in the public interest, but was calculated to put the Sub-Inspector in a difficulty, so that if a riot took place, which he might have prevented he would get into trouble, whereas on the other hand if ha exceeded his rights and went beyond what was justified in his interference with the accused, he might equally get into trouble with his superiors. There is a serious conflict between the written statement of the accused and the evidence of one of the prosecution witnesses whom they have mentioned. They declare that there were no Muhammedans before the mosque that several were summoned to the spot and were asked by the Sub-Inspector whether they had any objection to the music, and they said "yes," but that they also said that there were no Muhammadans who would attack the procession if it passed the mosque the point made by the written statement is a foolish one, because nobody can guarantee that no Muhammadan will use force. The accused professed, by their superior wisdom, to know that there was no risk of a riot, and both in the street to the Sub-Inspector, and in their written statement, they have definitely taken the ground that the Sub-Inspector was wrong in thinking that there was any risk, and that they, the accused, know batter, but the prosecution witness Musawwir Husaia said that he was at the mosque, that there ware-about 250 Muhammodans inside and outside the mosque, and that they were threatening to lay out corpses if the music was not stopped. On this evidence it is perfectly clear that the Sub- Inspector wag interposing within the meaning of Section 149 of the Criminal Procedure Code for the purpose of preventing a cognizable offence, namely, riot and grievous hurt. If the-evidence for the prosecution is accepted, the defiance and disobedience to the Sub-Inspector's order by the accused is made much more apparent, I am of opinion that the Sessions Judge took an altogether erroneous view of the evidence, and misunderstood the charge. Ha treated the charge as though it was for breach of an order given by the Sub-Inspector not to pass the mosque, but the order clearly was to stop the music and to stop the procession than and there. The Sessions-Judge agrees that the accused continued to advance boating drums and indicated that they would only stop to force and he came to the conclusion that they did not in fact disobey the order, because eventually the drums wore taken away and the assembly dispersed, and that they only refused to obey without carrying their refusal into actual disobedience. This view seems to me inconsistent with the-evidence. To take a simple illustration, if a father forbade his child to light a match in the presence of some highly combustible material, and the child lit the match, the child would be none the less guilty of disobedience, because he immediately blew it out and no explosion took place.

(2.) Whether the offence is one, which, on the facts as I find them, come within Section 188 of the Indian Penal Code, is no doubt a debatable question. The principal argument addressed to us was that there was no lawful order by the Sub- Inspector; in other words that he was not authorised to promulgate an order to the accused to stop the music, or to stop the procession. I find great difficulty in accepting this view. But as my brother is of opinion that an offence has been committed under Section 151, it seems to me that justice can be done by convicting the accused under this section, and that it is unnecessary to press the charge under Section 188 as in the circumstances of this case they overlap, and we have power under Section 423 to convict under either of them. I merely content myself with saying, that with reference to the question whether an order by the Sub-Inspector in the street to a person to desist from a particular piece of conduct, or from an act which he threatens to perform or repeat, is a lawful order within the meaning of the section, it is sufficient to turn to Section 149, Criminal Procedure Code, or to Section 23, or Section 31 of the Police Act V of 1861. I do not refer to these sections for the purpose of denning the offence in this case, nor for ascertaining the penalty for a breach of the sections mentioned. To my mind they are relevant as evidence of what may, or may not, be a lawful order by a Sub-Inspector, Section 149, Criminal Procedure Code, authorises him to intervene for the purpose of prevention of a cognizable offence, and I am unable to see why- if he found that intervention in the form of a verbal order given to persons whose conduct appears likely to lead to the commission of such an offence is necessary and sufficient-he should not be held to be authorised to give such verbal order, and to promulgate it in such a manner as he blinks best. Similarly the sections of the Police Act prescribe among other things his duty to prevent the commission of offences and to keep order in the public streets. The point was not argued before us, but the real difficulty which I feel about applying Section 188 is the use in the section of the word "promulgate." This is rather an unusual and technical term for a mare verbal order to halt or stop, such as a commanding officer might give to troops. Prima facie "promulgate" seems to indicate, if not a formal document printed or written, at any rate some form of publication. The view that it must be printed or written may be rejected, because a large proportion of the public in India are illiterate and cannot read orders so promulgated and if a Sub-Inspector definitely conveys order in a loud voice to a crowd in the street to stop, so that those who are addressed may understand it to be a definite order promulgated by a public officer in authority, it is difficult to see how, on the one hand, a sudden crisis is to be otherwise dealt with, and how a person defying the policeman is to be punished, and, on the other hand, where the line is to be drawn between a verbal order loudly promulgated and a mere verbal communication in the nature of persuasion or even command quietly communicated to the person whose conduct is complained of, but out of the hearing of other members of the public. This is a question seriously affecting the protection which Courts of law must necessarily give within the-law to police officers acting within the scope of their authority, and I find a difficulty in holding that the offence in this case does not come within the express terms of Section 188. But as I have said it is not necessary for me to do more than express my opinion upon this point, as both members of the Court are agreed that an offence has been committed under Section 151, for which we may either order them to be re-tried, or may find them guilty and sentence them under Section 423 and Section 561-A of the Criminal Procedure Code. Sulaiman, J.

(3.) This is a Government appeal from an acquittal. The case was-instituted under Secs.151 and 188 of the Indian Penal Code, but the Magistrate considered that the latter section was more appropriate and convicted the accused under it, sentencing them to six months rigorous imprisonment and a fine of Rs. 500 each. The Sessions Judge has acquitted them.