Beaumont, C.J:—
These are two references sent to this Court by the Sessions Judge of Ahmedabad. The learned Sessions Judge has held an inquiry under section 435 of the Criminal Procedure Code and has formed an opinion that the convictions in question were illegal and has referred the matter to this Court for necessary action
In the first reference eight persons were convicted and in the second reference five persons. The facts shortly are:—
That on August 22—all dates being in the present year—a committee of five persons was appointed in Ahmedabad with a view to enquire into the conduct of the police at Ranpur. Mr. Thakor tells us that the committee consisted of very eminent citizens, but whether that was so or not, the committee was entirely a private affair, and the members of it had rights neither greater nor less than any other members of the public; any members of the public, generally speaking, may form themselves into a committee and enquire into any subject which interests them, whether it be the conduct of the police or the conduct of a race-horse or any other subject. But in this case the District Magistrate formed the view that this committee of enquiry would be dangerous to the public peace having regard to the disturbed state of the area in which it was to operate, and on August 30 he made an order under section 144 of the Criminal Procedure Code in which after reciting that it had been made to appear to him that the five named members of the committee intended to hold an enquiry on August 31, 1930, at Ranpur regarding Mr. Shahabuddin Kazi, the sub-inspector of police, Ranpur, and other members of police force who were lawfully employed, and that he considered that such enquiry was likely to cause annoyance to Mr Shahabuddin Kazi and other members of the police force, and also disturbance of the public tranquillity, he then goes on:—
“I therefore prohibit you and any other persons who are or may be concerned in this project from holding or taking any part in such enquiry in any place in the Ahmedabad District on any date within two months of the date of making this order.”
The members of the committee were not disposed to obey that order. Accordingly, they were arrested, and on September 4, they were convicted and sentenced for disobeying the order under section 188 of the Indian Penal Code. Not only were the five members of the committee arrested, but three other persons who were taking part in the enquiry were also arrested, convicted, and sentenced. The five members of the committee are the first five opponents in reference No. 89 of 1930 and the other three persons are the last three opponents, viz., 6, 7 and 8 in the same reference. They were arrested as coming within the provision of the order directed to other persons concerned in the project.
On September 16, another committee was formed—also a private committee—and the members of it were served with the order and as they expressed an intention of disobeying it they also were arrested and were eventually convicted, not under section 188, but under section 143 as being members of an unlawful assembly.
The matter was subsequently brought before the Sessions Judge and he enquired into the matter under section 435 of the Code and, as I have said, came to the conclusion that the convictions were illegal.
The first point taken in connection with the first reference, in which the parties were charged under section 188 of the Indian Penal Code, is that where a charge is made under section 188 it is necessary under section 195 of the Criminal Procedure Code that there should be a complaint in writing of the public servant concerned, i.e, in this case of the District Magistrate. It is argued that as admittedly there was no complaint in writing in this case, the whole of the proceedings were bad. The answer of the learned Advocate General is that provision of section 195, to which I have referred, does not apply in this case, owing to an Ordinance and a notification of the Local Government under it. The Ordinance in question is Ordinance V of 1930 and section 11 of that Ordinance provides:—
“The Local Government may, by notification in the local official Gazette, declare that any offence punishable under section 188 of the Indian Penal Code, or any offence of criminal intimidation, when committed in any area specified in the notification, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-bailable, and thereupon the said Code shall, while such notification remains in force, be deemed to be amended accordingly.”
A cognizable offence under the Code is defined in section 4(f) as being an offence for which a police-officer may arrest without warrant. It is argued by the Advocate General that the Ordinance does not say in terms that an offence under section 188 is to be a cognizable offence within the definition of the Criminal Procedure Code. He says that the provision that the offence shall be cognizable means that it shall be cognizable, in the sense that the police can arrest without warrant, and that it must after arrest be dealt with as a cognizable offence throughout the Code and the Code be treated as amended accordingly. I think that is the meaning which the Ordinance has. But I do not see how that gets out of the express provisions of section 195. It is quite clear that in the case of every offence, in order to make it cognizable by a Magistrateone of the lines of procedure laid down in the Criminal Procedure Code must be followed. In a normal case where the police can arrest without warrant the police-officer can bring a prisoner up before a Magistrate under section 60, and then under section 190 the Magistrate can proceed upon a report made by the police-officer. That was the course followed in this case, but I do not see that there is anything in the Ordinance which provides that it shall not be necessary to take the preliminary step pointed out by section 195(a) of the code, and obtain a complaint in writing from the public servant concerned. The object of that section was, I suppose, to give some sort of protection to the public servant—it may or may not be a Magistrate. In my judgment, the requirements of that section are not abrogated by the Ordinance, and that being so, I think that the conviction of the persons in reference No. 89 was invalid.
It is necessary to consider the other points which have been argued in connection with reference No. 97. It is said that the order, quite apart from the question of failure to comply with section 195, is bad on various grounds.
The first suggested ground is that there was no emergency within section 144(2) which could justify the making of an order ex parte. In my judgment, it is prima facie for the learned Magistrate, who knows the local conditions, to say whether an emergency exists or not. If there was clear evidence that no reasonable man could hold that there was an emergency and that the Magistrate was not acting bona fide, I think that this Court could interfere by way of revision. But I should not interfere lightly with the discretion of the Magistrate in such matters, because he is the man who knows the local conditions and it is for him to judge whether there is an emergency or not. In the present case I see no reason for interfering on this ground.
Then the next objection taken is that the material facts are not stated in the order, and that they ought to be stated in writing under the terms of section 144, which provides: “such Magistrate may, by a written order stating the material facts of the case.” Well, the material facts stated here are that the five accused persons were proposing to hold an enquiry and that the learned Magistrate considered that it was likely to cause annoyance to Mr. Shahabuddin Kazi and other members of the police force and also disturbance of the public tranquillity. Having regard to the circumstances of the present case and to the provisions of section 555 of the Criminal Procedure Code and to form XXI in Schedule V thereto, I think that the statement of facts was sufficient, and I should not be prepared to interfere on that ground.
Then it is said that the Magistrate could not properly find that the police had been annoyed, or were likely to be annoyed. Apparently before the Sessions Judge there was an argument as to the meaning of the word “annoyance” and he was disposed to take the view that inasmuch as the word “annoyance” was interposed between “obstruction” and “injury”, the annoyance must be one occurring within some reasonable distance of the person annoyed, which has some contact or some proximity with or to the person annoyed. The learned Sessions Judge says that in adopting that view he is accepting an argument addressed to him by Mr. Desai, but I am not sure that he has done justice to the argument. It seems to me to overlook the fact that annoyance may be either physical or mental. In the case of physical annoyance, no doubt, a certain degree of proximity between the object annoyed and the annoyance is necessary. One is not physically annoyed by a mosquito which remains in the next room, or by a sound so far off that one cannot hear it, but in the case of mental annoyance no question of proximity arises. A person may be as much annoyed by a defamatory statement published thousands of miles away as by one made in his presence. I see no reason for confining the meaning of annoyance in section 144 to physical annoyance. In considering whether the police were likely to be annoyed in this case, the Magistrate would have to assume them to be persons of normal temperament and not hyper-sensitive. It is not really necessary to consider whether he was right in his view that the police would be annoyed, because the order is based on the alternative view that the conduct of the accused was likely to cause disturbance of the public tranquillity and that by itself is quite enough, even if there was no sufficient evidence to justify the view that the police were annoyed. It was for the learned Magistrate to say whether the matters complained of were likely to cause disturbance to public tranquillity, so that I should not be disposed to interfere on that ground.
Then the last ground is that the order is too wide, because it purports to prohibit not only “you” the live persons named, but also “any other persons who are or may be concerned in this project”, i.e, the project of holding this enquiry, from holding or taking any part in such enquiry in any place in the Ahmedabad District on any date within two months of the date of the making of that order.
In my judgment, where a District Magistrate is formulating an order under section 144, it is incumbent on him to show two things quite plainly, first of all, the thing which is prohibited, and secondly, the persons who are prohibited. It is not fair to leave people in doubt as to whether they are prohibited from doing a thing or not. It seems to me that to include amongst the class of persons prohibited “any other persons who are or may be concerned in this project” is too vague. It is impossible to say who is concerned in the project. The persons who hold the inquiry, or who protest against it, witnesses before it, servants employed directly or indirectly in the conduct of it and many others may be said to be concerned in the enquiry and included in the prohibition. I think these words are too vague. The public generally may be prohibited in a case falling within sub-section (3) of section 144, but, in my opinion, this case does not fall under that sub-section.
Then the learned Sessions Judge says that you cannot divide the order and that if part of the order is too wide the whole order is bad. In my judgment that is not so. I think that the learned Magistrate has here divided the order himself. If the order had been “I prohibit any person concerned in this project” that would have been too wide, and it would have been impossible for this Court to re-write that prohibition by expressing it in the alternative form, as prohibiting, first of all, the five named persons, and, secondly, anybody else. But the learned Magistrate here has split up the prohibition himself and has directed it to “you and any other persons” etc. If a prohibition is directed against A and B and the prohibition is bad against B, that fact does not make it bad against A also. Therefore so far as the five persons named in the order are concerned, I think that the order would have been valid against them if it had complied with section 195 of the Criminal Procedure Code, but I think that the order is invalid against anyone else. The five persons in reference No. 97 were not named in the order and were I think not bound by it and their conviction was illegal for that reason.
In my judgment, therefore, the convictions in both the cases must be quashed and the fines, if paid, refunded.
Barlee, J.:—The Sessions Judge of Ahmedabad has referred to us two cases with the recommendation that the convictions of the persons named in them should be quashed.
In the first case eight persons have been convicted under section 188 for disobedience of an order by the District Magistrate of Ahmedabad.
The first question in this case is whether the Magistrate who tried the case had jurisdiction to take cognizance of the offence. According to the learned Sessions Judge he was prohibited from taking cognizance of an offence under section 188 of the Indian Penal Code by section 195 which states—
“No Court shall take cognizance of any offence under section 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned,”
In this case, the District Magistrate. It is conceded that the accused were arrested by the police without warrant under the powers given by section 11 of Ordinance V of 1930, and committed by the police to the Court of the trying Magistrate, who was a Magistrate who had power to take cognizance of an offence under section 190(b) on a police report. But section 190(b) must be read with section 195 of the code, and the effect of these two sections of the Code, as they stood before the Ordinance was passed, was that a Magistrate had no power to take cognizance of an offence under section 188 except on a complaint.
It has been contended by the learned Advocate General and it was contended by the Public Prosecutor in the Court of the Sessions Judge that the Criminal Procedure Code has been amended by section 11 of Ordinance No. V of 1930, which has empowered the Local Government to declare that any offence, punishable under section 188 of the Indian Penal Code, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-bailable, and thereupon the said Code shall, while such notification remains in force, be deemed amended accordingly. This is of course correct, but the view of the learned Sessions Judge, however, is that the Ordinance must be read strictlv as applying only to those parts of the Criminal Procedure Code, to which in terms it refers, i.e, that it refers only to the Schedule V and that the only alteration made by it in the Criminal Procedure Code is that it empowers the police to arrest without warrant such persons as appear to them to have committed an offence under section 188, by disobeying orders passed by a competent authority. The learned Sessions Judge writes—
“There is in section 11 of the Ordinance no express amendment or repeal of section 195(1)(a) of the Criminal Procedure Code at all and there is no accessory implication of such amendment or repeal.”
The argument of the learned Advocate General is that if the Ordinance be read as part of the Code it must fit in with the scheme of the Code and be consistent with its terms; and that, inasmuch as the scheme of the Code provides that the police, after arresting an accused person without warrant, must put him before a Magistrate and obtain orders from that Magistrate, it must be assumed that there is in every case of this nature a Magistrate who has jurisdiction to pass some orders in the matter. This argument appeared to me at first sight to be very difficult to answer. On the arrest of an accused person he has to be sent before a Magistrate under section 61 and no final order can be made in his case except by a Magistrate who has jurisdiction to take cognizance of the case, either by trying it himself or committing him to the Sessions. It appeared to follow that when the Legislature—in this case His Ecellency the Viceroy—made the offence under section 188 cognizable by the police he must have intended that it should be cognizable by a Magistrate also. Without a final order by a Magistrate there can be no legal untying of the knot which has been bound by the police, for there is no section of the Code which allows the police simply to drop a case and discharge an accused on their own authority. But the argument is open to the objection that the situation which, it is contended, could not have been intended by the Legislature, is, in fact, one which might have arisen in cases under sections 196A and 197. For example in section 196a of the code we find it stated that no Court shall take cognizance of certain offences of criminal conspiracy punishable under section 120B of the Indian Penal Code unless the Governor in Council, Chief Presidency Magistrate, or a District Magistrate specially empowered has consented to the initiation of the proceedings though some of such offences are cognizable. The police have power in such cases to arrest without warrant though there may be no Magistrate who can take cognizance of the offence; and it is therefore impossible to say that a case cognizable by the police must ipso facto be cognizable by a Magistrate.
Accordingly I agree with the view taken by the learned Sessions Judge that the Magistrate in this case had no power to take cognizance of the offence on the report of the police and these proceedings were therefore null and void.
As regards the other points which have been raised in the case I have nothing to add to what has been said by his Lordship the Chief Justice. I agree, therefore, that the convictions in these two cases must be set aside, and the fines, if paid, refunded.
Convictions set aside.
B.G.R
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