EMPEROR Vs. VISHVASRAO BALVANT DAVARE

JUDGEMENT

(1.) This is an application in revision by Vishvasrao Balvant asking us to interfere with his conviction by the Sub-Divisional Magistrate, First Class, Nasik, confirmed on appeal by the Sessions. Judge at Nasik, under Section 14 of the Bombay Special (Emergency) Powers Act (XVI of 1932). It appears that under the Bombay Special (Emergency) Powers Act, 1932, the District Magistrate of Poona had made an order requiring the present applicant, in the first paragraph, to abstain from every act in furtherance of the Civil Disobedience Movement, and, in the second paragraph, to abstain from encouraging or inciting any person to interfere with the administration of the law or with the maintenance of law and order, and, in the third paragraph, to abstain from organising, being present at or addressing any meeting held in furtherance of the objects referred to in paragraphs 1 and 2, and then the accused was required to reside and remain within the limits of Poona City Taluka, and not to leave those limits without giving intimation to the District Magistrate. That order was made in August, 1933, for a period of a month, but it is not disputed that it was extended and covers the period in which the offence is charged. On March 16, 1934, the present applicant intimated to the District Magistrate of Poona that he intended to go to Nasik, and he went to Nasik accordingly, and between March 22 and 31 he took part in various meetings and made various speeches, and the charge against him is that in respect of those activities he committed breaches of the second and third paragraphs of the order of the District Magistrate.

(2.) The first point taken on this application is on the question of jurisdiction. It is argued that the District Magistrate of Poona had no power to make an order covering the activities of the accused outside the limits of the jurisdiction of that Magistrate, and accordingly no action could be taken against the accused in respect of his conduct at Nasik. There is, in my opinion, no force in that contention. Under Section 4 of the Bombay Special (Emergency)Powers Act, 1932, the Governor in Council may, by order in writing, give various directions as to the conduct of any particular person. Then by Section 16 the Governor in Council may invest the District Magistrate with the powers of the Governor in Council under Sub-section (1) of Section 4. The powers of the Governor in Council clearly extend throughout the Presidency of Bombay, so that, under Section 16, as it seems to me, the Governor in Council can delegate to the District Magistrate (I think it would have been more accurate to use the indefinite article and say a District Magistrate ) powers extending over the whole Presidency. Then by notification in the Gazette in December, 1932, the Governor in Council invested every District Magistrate with the powers, to be exercised by every such officer throughout the Presidency of Bombay, of the Governor in Council under Sub- section (1) of Section 4 of the said Act. Therefore, it seems to me that the Governor in Council has delegated to the District Magistrate of Poona, amongst others, power to make any order referred to in Sub-section (1) of Section 4, such order to be enforceable throughout the Presidency of Bombay.

(3.) The second point taken is that in fact the applicant has not committed any breach of the order. It is not suggested that he has done anything in furtherance of the Civil Disobedience Movement : his activities at Nasik were connected with a religious movement. It appears from the evidence of the Sub-Inspector of Police of Nasik that at the period in question there was a good deal of feeling between two sections of the Hindu community whom he refers to as touchables and untouchables, and I will use a similar description. The dispute was as to the right of drawing the Rath, the untouchables claiming a right to draw the Rath, and the touchables denying that right. The present applicant is a leader of the touchables, and he held various meetings, and made speeches on March 22, 23, 24, 25, 26 and 27, and on March 31 he was arrested. We have not got translations of the speeches, but the learned Sessions Judge hearing the appeal in this case has summarised them, and the Government Pleader has read to us various passages from the speeches, which he has translated from the vernacular, which, he suggests, go rather further than the Sessions Judge thought. The speeches undoubtedly show that the accused was endeavouring to keep up the enthusiasm of the touchables for this religious ceremony and for the drawing of the Rath, and he enlisted certain volunteers, that being done, as I gather from his speeches, to keep up the religious enthusiasm of his own sect. On the occasion of the earlier speeches he anticipated that the District Magistrate would make an order under Section 144 of the Criminal Procedure Code forbidding the procession, and he certainly spoke against the advisability of such an order, but he did, in each of his speeches, advise the people, if the order was made, to obey it. Then, on March 25, in the middle of these speeches an order was made by the District Magistrate under Section 144, Criminal Procedure Code, and on the same day the accused made a speech which was, I think, the most violent of the speeches and which is discussed in the evidence of the Police Jamadar, exhibit 3. There is no doubt from that speech that the accused was annoyed at the passing of this order, and he says in his speech that he has received a list of volunteers exceeding expectation, that the public wish to break the order under Section 144 and establish their right, that it was certain that they would establish their right at the cost of life, that all were aware of the fact that the Satyagraha of the untouchables had taken a victim of a goldsmith's boy, that the public have remained quiet up to then, but that there was also a limit for stretching the rubber, that if the Government continued its odd actions the public of Nasik would not tolerate, and the spark of the public would not but explode. The question is, whether in using language of that sort the applicant was encouraging or inciting persons to interfere with the administration of the law. He finished up his speech on the 25th, as in the case of other speeches, by telling people that as the order had been made, they must not disobey it. It seems to me that in the passages I have read, and on which the Government Pleader relies, the accused is really doing no more than this. He is expressing strong disapproval of the action of Government in issuing an order under Section 144, and is warning Government against what, in the speaker's opinion, will be serious consequences of its action, but I am unable to say that in that speech or in any other speech he in fact encourages or incites anybody to commit a breach of the law. The learned Sessions Judge thinks that the advice with which the accused was careful to conclude all his speeches, namely, that the law must be obeyed, was purely hypocritical, but, inasmuch as in fact the law was obeyed, I do not see why one should assume that the applicant did not intend the advice to be taken. It was in fact taken. The only trouble which arose at all was on March 31, and that arose after the accused had been arrested. There was a large gathering of touchables on the 31st, and the accused was apparently threatening to take out the Rath. But the ban under Section 144 had expired on the 27th. It has been suggested that there was some order under Section 42 of the District Police Act which prevented the Rath from being taken out on the 31st, but no such order was relied on in the lower Courts, and I have not been referred to any order of any authority which would have been broken by the accused if he had taken out the Rath on March 31. However, before he could do anything he was arrested, and it was after his arrest that some of the women started to take the procession out and some trouble was occasioned. In my opinion, the conduct of the accused did not involve any breach of the terms of the order made against him by the District Magistrate of Poona, and I think, therefore, his application must be allowed, the conviction and sentence set aside, and the fine, if paid, refunded. Sen, J.