1. This is a Government appeal against an order of the learned Sessions Judge of Darbhanga reversing a judgment of conviction recorded by a Magistrate of the first class of that place. The respondent was convicted by the trial court under Section 5 of the Bihar Essential Services Maintenance Act, 1947 (Bihar Act 1 of 1948), Section 3 of the Police (Incitement to Disaffection) Act, 1922, and S. 451 of the Indian Penal Code. For his conviction under Section 5 of the Bihar Essential Services Maintenance Act, 1947, the respondent was sentenced to six months' rigorous imprisonment besides a fine of Rs. 100/- in default, to a further term of imprisonment for three months. No separate sentence was awarded for the other two convictions. In appeal the learned Sessions Judge set aside all these convictions and acquitted the respondent. It is against this order of acquittal that the present appeal is directed. The respondent, a dismissed constable, was the Secretary of the Bihar Police and Jailmen's Association. Under a notification issued by the Deputy Inspector General of Police, Northarn Range, there was a ban against members of the police force of the State joining this Association. The prosecution easel is that on 9-5-56 at about 10-30 a in while Gangal Singh, a traffic constable (P.W 17) was sitting in front of the third class exit gate of Darbhanga railway station, the respondent came there and sat by his side.

2. He started conversation with the constable (P.W 17) giving out his name and the office which he was holding. In the course of his conversation the respondent asked the constable where the police barrack was. The constable (P.W 17) while pointing out the location of the barrack enquired as to why he wanted information about the barrack. The respondent replied that he wanted to collect subscription for his Association. He then went towards the police barrack. Ganga Singh (P.W 17) went to report the matter to the officer-in-charge of the Government Railway Police but was unable to do sq as that officer was not at the station then.

3. In the meanwhile the respondent entered a room of the G.R.P barrack where two constables, Bali Missir (P.W 1) and Ram Nirekhan Singh (P.W 3), were discussing their mess account on a chowki. Another constable Ramasre Singh (P.W 2) was sleeping there on a separate chowki. The respondent took his seat on the latter chowki. P.Ws 1 and 3 asked the respondent why he had come there. I There was then some conversation between them and the respondent.

4. Thereafter the respondent took out a receipt book for collecting subscription for the Association from his pocket. Just then Indu Bhusan Tewari, the officer-in-charge of the G.R.P.S (P.W 24) came there in course of his usual round. On seeing the respondent the officer-in-charge enquired who he was. The respondent gave out his name. The three constables who were in the room at the time stated that they did not know who the respondent was. The officer-in-charge thereupon arrested the respondent. On a search being made of his person the receipt book referred to above, and other articles were recovered from his pocket.

5. The defence was a plea of innocence. The respondent admitted that he had gone to the barrack but his plea was that he had gone there to ask for a lota for temporary use. He denied that he had gone there to collect subscriptions or that hg was an office-bearer or a member of the Association.

6. Both the courts below held that the respondent was a dismissed constable and that on the date in question he was the Secretary of the Bihar Police and Jailmen's Association. They also found that on the day of occurrence the respondent had gone to the police barrack at Darbhanga and met constables Bali Missir (P.W 1), Ramasre Singh (P.W 2) and Ram Nirekhan Singh (P.W 3). The learned Sessions Judge also gave a clear finding that while talking with two of the constables (P.Ws 1 and 3) the respondent had taken out from his pocket a receipt book of the Bihar Police and Jailmen's Association.

7. The learned Standing Counsel has accepted these findings of fact. On behalf of the respondent it was, however, submitted that the evidence of Ganga Singh (P.W 17) as to his having met the respondent at the railway station and as to respondent having told him that he had come to Darbhanga to collect subscription should not be accented. In this connection it is pointed out that although Ganga Singh (P.W 17) had found the junior officers at the police station he did not disclose the incident to them.

8. The explanation of Ganga Singh is that he had gone to the police station to report the occurrence to the officer-in-charge but as he did not find him there he came back His evidence does not appear to me to be inherently improbable and I see no reason to distrust him. Nor is there any adequate reason for disbelieving the evidence of P.Ws 1 and 3 who spoke about the incident which took place in their room.

9. So far as the charges under Section 5 of the Bihar Essential Services Maintenance Act, 1947, and Section 3 of the Police (Incitement to Disaffection) Act, 1922, were concerned the learned Sessions Judge held that those charges could not be said to have been proved against the respondent because there was nothing to indicate that he had “attempted” to induce any member of the police force to commit a breach of discipline by violating the prohibitory notification. The relevant portion of Section 5 of the Bihar Essential Services Maintenance Act, 1947, on which the prosecution relics runs as follows:

“Whoever intentionally….. attempts to induce, or does any act which he knows is likely to induce any person…to commit a breach of discipline shall…. be punishable with imprisonment which may extend to three years and shall also be liable to fine”. The provisions of Section 3 of the Police (Incitement to Disaffection) Act, 1922, are similar. They are:

“Whoever intentionally causes or attempts to cause, or does any act which he knows is likely to cause, disaffection….. or induces or attempts to induce—. any member of a police force to…. commit a breach of discipline shall be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both”.

10. The learned Sessions Judge was of the view that the facts deposed to by constable Ganga Singh (P.W 17) if true, would at best prove that the respondent had gone to the police barrack with the intention of collecting subscription for his Association.

11. As regards the evidence of P.Ws 1 and 3 as to the respondent having taken out the receipt book of his Association from his pocket the learned Judge held that the act in question amounted only to a “preparation” for collecting subscription and did not amount to an “attempt” to induce the constables to commit a breach of discipline so as to bring that act within the purview of Section 5 of the Bihar Essential Services Maintenance Act, 1947, or Section 3 of the Police (Incitement to Disaffection) Act, 1922.

12. In my opinion the learned Judge was in error in holding that the act of the respondent in taking, out the receipt book for collection of subscription for the banned Association did not amount to an attempt to induce the constables to commit a breach of discipline. The question whether a certain act is merely one of preparation or one committed in the course of an attempt is a question of fact. The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. An attempt is a direct movement towards the commission after the preparation has been made. There is a greater degree of determination in “attempt” as compared with “preparation”.

13. The evidence of the traffic constable (P.W 17) and the fact that the respondent, the Honorary Secretary of the Association, arrived at Darbhanga with a printed receipt book and made enquiries about the police barrack establish his intent. These facts taken into consideration with the fact that he actually visited the police barrack and contacted some members of the force there show that the stage of intention had developed into the stage of preparation. In the room he had some conversation with two constables and then he took out his printed receipt book.

14. In my opinion the taking out of the receipt book was an external act, something tangible and ostensible, which in law cannot but be regarded as an act showing progress towards the actual commission of the offence. It is now well settled that the act which amounts to an attempt need not relate only to the penultimate act. It may be that after taking out the receipt book the respondent would have asked them to pay subscription. Apparently he was prevented from doing so because of the arrival of the Sub-Inspector.

15. His act in taking out the receipt book for collecting subscription for the Association was, however, sufficiently proximate to the commission of the offence so as to bring it within the definition of “attempt”. In disagreement with the learned Judge I am, therefore, of opinion that the evidence in this case establishes beyond doubt that the respondent had attempted to induce the two constables (P.Ws 1 and 3) to commit a breach of discipline. The charges under Section 5 of the Bihar Essential Services Maintenance Act, 1947, and Section 3 of the Police (Incitement to Disaffection) Act, 1922, have, therefore, been fully brought home to him.

16. The learned Sessions Judge has acquitted the respondent of the charge under S. 451 of the Indian Penal Code on grounds which appear to me to be extraordinary. I have already referred to the circumstances which prove the intention with which the respondent had gone to the police barrack. The learned Sessions Judge completely ignored these circumstances and dismissed the prosecution case on an alleged discrepancy between the statement of Ganga Singh (P.W 17) in court and his statement-before the police. This witness stated in court that the respondent told him that he wanted some sub-scription for the Police and Jailmen's Association. The statement of the Investigating Officer as to what Ganga Singh (P.W 17) had stated before him was as follows:

“Ganga Singh (P.W 17) stated before me that the accused asked subscription for Police and Jail men's Association but in that sentence I did not write for Police and Jailmen's Association as it was already written in the earlier sentence of the statement”.

17. This was quite a reasonable and satisfactory explanation, but the learned Judge refused to accept it in these words:

“The fact, therefore, that in the earlier part of the statement, as recorded by the Sub-Inspector of Police (P.W 24) a mention of the Association was made cannot, in my opinion, justify the conclusion that, according to the statement of Ganga Singh the appellant said that the subscription which he wanted to collect was for the said Association”.

18. I am afraid, the reasoning of the learned Judge is wholly perverse. Having regard to the manner in which the statement of the witness had been recorded by the Investigating Officer it is clear that the witness meant that the respondent had told him that be wanted subscription for the Police and Jailmen's Association. I do not think that there is any discrepancy in the evidence of P.W 17 which merited an adverse criticism.

19. Besides the evidence of the witness there were, as I have stated earlier, other circumstances to warrant the conclusion that the respondent had gone there with the intention of committing an offence punishable under Section 5 of the Bihar Essential Services Maintenance Act, 1947, and Section 3 of the Police (Incitement to Disaffaction) Act, 1922. My finding, therefore, is that the charge under S. 451 of the Indian Penal Code has also been fully established against the respondent. In the result, I allow the appeal and set aside the order of acquittal recorded by the learned Sessions Judge. I convict the respondent under Section 5 of the Bihar Essential Services Maintenance Act, 1947, and sentence him to undergo rigorous imprisonment for three months. I also convict him under Section 3 of the Police (Incitement to Disaffection) Act, 1922, and S. 451 of the Indian Penal Code but award no sentence under those sections.

V.R.B

20. Appeal allowed.