Emperor v. Ganesh Vasudev Mavlankar And Others

G.N Thakor, with H.V Divatia (on behalf of the Western India Pleaders' Association) and P.A Dhruva (for the legal committee):—The accused are convicted under the second part of section 188 of the Indian Penal Code, for disobedience of an order promulgated by the District Magistrate under section 144 of the Criminal Procedure Code.

The first objection is that the conviction is bad in the absence of a complaint in writing by the District Magistrate as required by section 195(a) of the Criminal Procedure Code. This defect is sought to be made good by resort to section 11 of the Prevention of Intimidation Ordinance V of 1930. The effect of section 11 is that an offence under section 188, which ordinarily is bailable and not cognizable, is now made non-bailable and cognizable. The expression “cognizable offence” is defined by section 4(f) of the Criminal Procedure Code to mean “a case in which a police-officer may arrest without warrant.” Thus by the operation of the Ordinance an offence under section 188 becomes one for which the police may arrest without warrant. The Ordinance does not affect the jurisdiction of the Magistrate to take cognizance of the offence. The cognizance of an offence by a Magistrate is regulated by section 190 of the Criminal Procedure Code. The section provides that a Magistrate may take cognizance of an offence in emperor one of three ways: (1) upon a complaint; (2) upon a report by a police officer; and (3) upon information by a private person or knowledge or suspicion of the Magistrate. But this provision is subject to the words “except as hereinafter provided,” and therefore subject to section 195. Section 195(a) provides that a complaint for an offence under section 188 of the Indian Penal Code can be taken cognizance of only upon a written complaint of the District Magistrate or of his official superior. The reason is plain. The District Magistrate who makes an order under section 144 of the Criminal Procedure Code is intended to have control of the proceedings which may be started for disobedience of his order. The Ordinance in no way affects the provisions to which section 190 is expressly made subject and one of these provisions being section 195, the want of a complaint under section 195(a) is an illegality which vitiates the whole proceedings: Subrahmania Ayyar v. King-Emperor.(1) It is not an irregularity which can be cured: Mahim Chandra Nath Bhoumick v. Emperor.(2)

To support a conviction under section 188 of the Indian Penal Code, there are two requisites: there should be (1) “obstruction, annoyance or injury,” (2) “danger to human life, health or safety.” In the present case danger to human life, health or safety is necessary. As the conviction is under the second part of section 188, Indian Penal Code, mere obstruction, annoyance or injury will not do. These conditions should exist again at two periods of time: first, at the time when the order was passed under section 144 of the Criminal Procedure Code; and, secondly, at the time of the disobedience complained of. The term ‘annoyance’ used in section 144 is interposed between the terms “obstruction” and “injury” and must partake of the character of its companion terms. Obstruction is necessarily illegal. So is injury under its very definition. The annoyance contemplated should, therefore, be annoyance arising from the doing of an “illegal act” and not from the legitimate exercise of a lawful act by a person. It must besides be annoyance felt by a reasonable man at the illegal act of another. No reasonable man has a right to be annoyed at what another has a right to do or by a thing which another has not been prohibited from doing. The annoyance must, therefore, be the annoyance of a reasonable man: In the matter of the Petition of Gobind Prasad. The section not having been meant to prevent the legal exercise of a right and the annoyance being the annoyance of a reasonable man arising from the doing of an illegal act, it follows that the District Magistrate had no right to act on the supposed annoyance to “Shahabuddin Kazi and other members of the police force.” And what is the annoyance? Whether, as is alleged, the police at Ranpur are guilty of excesses and wrongs or not how can an open inquiry into their doings by respectable men in proceedings started merely to elicit the truth cause annoyance to them? There is no question here of “danger to human life, health or safety” or of “riot or affray.” The order, however, is based on apprehension of “disturbance of public tranquillity.” The inquiry proposed to be made here is rather to set the mind of the public at rest. The culture and calibre of the members of the first committee of inquiry, the appointment of independent members on the committee, the giving of notices to, and inviting co-operation from, the police force, and the open testing of statements already made by witnesses who alleged acts of indecency and excesses by the police, negative the very idea of disturbance of public tranquillity. Thus the requirements for conviction under section 188 of the Indian Penal Code are absent

Further, the order passed here does not fulfil the other requirements of section 144 of the Criminal Procedure Code. There must be “sufficient ground for proceeding”; (2) “immediate prevention or speedy remedy” should be desirable; (3) “the material facts of the case” should be stated in the order itself: (4) ordinarily there should be service of the notice as provided in section 134; and (5) the abstention directed must be from a certain act likely to cause obstruction, annoyance or injury. Clause (2) of the section permits the order to be passed ex parte, only if the special conditions laid down there are established. For instance, if there is imminence of a riot, notice can be dispensed with. Facts, therefore, going to show that a riot is imminent must be stated in the order. As regards the five persons, constituting the first committee, the District Magistrate was fully aware that they were proceeding on a certain day to Ranpur to make the inquiry; yet he chose to pass an ex parte order. The order, it is to be noted, may be directed either to “a particular individual” or to “the public generally when frequenting or visiting a particular place.” The second requisite is strictly construed. It was held in Emperor v. Bhagubhai that the limit of “five miles of Surat city” was too wide. Here, the order is directed to the public generally without reference to their using a particular place. It is also made to operate all through the Ahmedabad district, an area of about 3,400 square miles. The limit imposed was meaningless, for the jurisdiction of the District Magistrate extended only over the district of Ahmedabad and could not go any further. The order is bad as applying to public generally, not when frequenting a particular place, but whenever they may happen to be in the District of Ahmedabad. There is no statement of facts in the order, let alone material facts. The only fact stated is that “such an enquiry is likely to cause annoyance to Mr. Shahabuddin Kazi and other members of the police force.” There is no statement of emergency, or of circumstances entitling the dispensing of service of notice. The order is uncertain in so far as it prohibits “persons who are or may be concerned in this project from holding or taking any part in such enquiry.” This is too wide. It may include a peon or even an errand boy. Any member of the public may be a victim of it. What is the nature of the act which is restrained here? There already were statements made and signed by certain persons including females, complaining of excesses and wrongs committed upon them. A committee consisting of first rate individuals was appointed to go to Ranpur to examine each of the deponents and to test the varacity of their statements by an open inquiry. The exposure of their acts, even if it may cause personal annoyance to the police concerned, is not the annoyance which the section was enacted to protect. It is a misapplication and abuse of the section to attempt to shield such acts under cover of it. The idea underlying the order is prevention of the inquiry. The police are naturally interested in shielding themselves from an inquiry into their misdeeds: and the District Magistrate seems to have derived inspiration from the police.

As already submitted the order is bad as it is addressed to the public generally. See Emperor v. Bhagubhai; Queen-Empress v. Lakhmidas Makandas; Queen-Empress v. Jokhu(3); and Ashutose Roy v. Harish Chandra Chattopadhya. It is bad because the material facts showing necessity or justification for its issue are not stated. It is also bad, since the reasons of emergency which permit the Magistrate to issue an ex parte order are not to be found: see Karoolal Sajawal v. Shyam Lal. It is bad because the prohibition is both vague and too wide.

The materials cannot be supplemented ex post facto. They must appear before the making of the order. The right and responsibility of passing an extraordinary, order are hedged in by pre-requisites which must appear on the face of the order. The subsequent statements by the police cannot take the place of the facts required to be stated by the Magistrate in the order itself. The Magistrate should himself state the material facts. That alone would enable the High Court to say whether the order is good or bad.

It has been held that the requirements of section 144 should be strictly complied with: Hafiz-ud-din v. Laborde. An inquiry is necessary: Chandra Nath Mukherjee v. East Indian Railway Co.(4)

Section 144 is not meant to prevent a person from doing a lawful act. It is meant to operate where a party goes wrong. When a person is doing an act which is within his right, and the other person unnecessarily takes fright at it, there is no occasion for an order under section 144. How can a member of the police-force commit a breach of the peace only because an enquiry is being held into his conduct? See Sundram v. The Queen(5) and Blong v. Emperor.(6)

It is an abuse of the provisions of the law to pass an order like the one in the present case. If the order is bad and erroneous in any of its part, then you cannot separate that part and say that the rest of it is good. It must stand or fall as a whole order. In the present case the order is one and not in parts. Its object is to prevent an inquiry. The prohibition does not proceed by reason of an objection to individuals composing the committee but is directed to any inquiry, anywhere and by any persons. You cannot, therefore, reasonably separate one part from another. Three of the persons convicted are again not named and come in as members of the public.

In Reference No. 97 of 1930, the place of enquiry is Ahmedabad, a place nearly eigthy miles removed from Ranpur. There cannot be any disturbance of public tranquillity by an inquiry at Ahmedabad of events that took place at Ranpur, that is, the doings of a petty police sub-inspector. The order in this case is perverse. It is inconceivable that an inquiry at Ahmedabad should cause breach of the peace or even annoyance eighty miles away

Sir Jamshed Kanga, Advocate General, with P.B Shingne, Government Pleader, for the Crown:—The effect of section 11 of Ordinance No. V of 1930 is that the mention of section 188 of the Indian Penal Code is deleted from section 195(a) of the Criminal Procedure Code. Section 11 of the Ordinance makes the offence cognizable both by the police and by the Magistrate. The offence becomes cognizable by a Magistrate upon the report of a police-officer; otherwise the police may arrest an offender and not place him before any Magistrate. Where the Ordinance means to refer only to the schedule to the Criminal Procedure Code, it expressly says so: see section 9. As regards the cognizance of a case by a Magistrate, see sections 4(f), 4(h), 5(1), 54, 60, 61, 154(5), 155, 156, 173, 190(b), of the Criminal Procedure Code. The idea of the Ordinance is to avoid delay. Ordinarily the police makes arrest: it is followed by investigation. The police then makes a report and it is thereafter that the case goes before a Magistrate. If a complaint in writing is necessary, it would mean more delay.

If the Ordinance is treated as a special law then it supersedes the Criminal Procedure Code as provided by section 1(2) of the Code.

The order in this case is only an administrative order and not a judicial order. I do not dispute that the High Court has revisional jurisdiction over such orders. I say that when a Magistrate acts under section 144 of the Criminal Procedure Code he is not a Court. So long as the order falls under section 144, it is not for the High Court to say whether he has rightly made the order. Nor can the High Court say whether there was an emergency or not. See Visvanadha Rao, In re and Vedappan Servai v. Periannan Servai.

(Thakor:—The case of Vedappan Servai v. Periannan Servai is overruled in Muthuswami v. Thangammal Ayiyar).

An order under section 144 can be passed if the Magistrate has knowledge, and without any information being given to him. Herein, it differs from an order nassed under section 107, which requires that a Magistrate “is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity,” or from an order passed under section 133, which requires that a Magistrate “considers on receiving a police report or other information and on taking such evidence (if any) as he thinks fit.” Thus, where the Code requires the Magistrate to move on the evidence before him, it expressly says so. All that it says in section 144 is “where in the opinion of a” Magistrate, etc. The question whether “there is sufficient ground for proceeding under this section” is one on which the discretion of the Magistrate should prevail.

The material facts, such as are required by the legislature in Schedule V, form No. XXI, of the Criminal Procedure Code, are stated. The High Court has made no rules on the subject under section 554; therefore, under section 555, the form “if used shall be sufficient.” The grounds of the order need not be stated in the order.

Section 144 is alternative. The order may either (1) “direct any person to abstain from a certain act” or (2) contain “a direction … to prevent … a disturbance of the public tranquillity.” It aims at preventing (1) annoyance, or (2) disturbance of public tranquillity. One of these is sufficient.

“Annoyance” need not involve personal contact. Its companion term “injury” is defined in section 44 of the Indian Penal Code as denoting “any harm whatever illegally caused to any person in body, mind, reputation or property.” The heading of the chapter, in which section 144 appears, is “temporary orders in urgent cases of nuisance or apprehended danger.” The term “annoyance” is a very wide term. See In the matter of the Petition of Gobind Prasad. The sort of inquiry that is promised here would a man lawfully. It would generally affect an ordinary person. It would “annoyance” but “injury” as well.

In the present case, we have public servants of Government doing their duty which may not be palatable. We also have a committee of inquiry making the police accused persons. The object of the inquiry is (1) to lower the whole of the police force, and (2) to inflame the passions of persons roundabout against the police. If the whole force is decried, then public tranquillity will be affected.

The cases of Karoolal Sajawal v. Shyam Lal and Hafiz-ud-din v. Laborde are distinguishable.

Under section 144 no notice need be given when there is emergency. The Magistrate came to know of certain facts on July 28, 1930, and he passed the order.

The order is easily severable. It is addressed to five named persons, on each of whom it was served. So far, it was perfectly valid. The liability of the five persons is complete. The order goes on further and affects “any other persons who are or may be concerned in the project.” This is not indefinite. The term “person” is defined as including “any company or association, or body of persons whether incorporated or not” (section 11, Indian Penal Code); and the term “public” includes “any class of the public or any community” (section 12, ibid). The order here is directed against an association only an association of persons who have collected themselves for the purpose of making an inquiry. The order is limited to members of a committee making inquiry. It is not meant for the whole body of public; but only to a class of it.

The object of the order is to stop the holding of the inquiry.

The words “any place” in the order mean the place where the inquiry would be held. The expression “a particular place” in section 144 is wide enough to include all places in an area; and to bring in persons who are not residing in the locality, but who go there from outside. The section itself imposes no limitation on the “place”, though decided cases do limit it. In Emperor v. Bhagubhai (dog case) and Queen-Empress v. Lakhmidas Makandas (caste dinner case), the order was couched in very wide terms. Here, it only says, you will not be a party to the meeting wherever that meeting is held. The inquiry only is prohibited.

In Reference No. 97 of 1930, the accused are acquitted on the charge under section 188 of the Indian Penal Code. They are convicted of an offence under section 143 of the Code, for which no sanction of the Magistrate is required under section 195 of the Criminal Procedure Code. The offence is a cognizable one.

Thakor, in reply:—An order passed under section 144 of the Criminal Procedure Code is a judicial order passed by a Court. It is subject to revision by the High Court either under the Government of India Act, 1915, section 108 or the Criminal Procedure Code, section 435. The cases of Emperor v. Bhagubhai and Queen-Empress v. Lakhmidas Makandas were decided at a time when proceedings under section 144 were excluded from the operation of section 435. See In re Pandurang Govind and Muthuswami v. Thangammal Ayiyar. Now, however, the ban has been removed by repeal of sub-section (3) of section 435; and the High Court can go into the propriety as also the legality of the order. As for propriety the High Court may give weight to the Magistrate as the man on the spot, but still the High Court will probe into it.

It is conceded by the other side that section 195 of the Criminal Procedure Code would apply, if the Ordinance were not there. Now, what has the Ordinance done? It has made the offence under section 188 of the Tndian Penal Code a cognizable offence. The offence under section 188 is one of which a Magistrate could take cognizance independently of the Ordinance. Every offence is cognizable by a Magistrate (section 190). There would be no meaning in the legislature saying again that an offence under section 188 is cognizable. To say that an offence is cognizable by a Magistrate is to attribute to the legislature a desire to legislate about a thing which is already there. Therefore, saying that the offence becomes a cognizable one can only mean that the police could now arrest without warrant. Before cognizance of an offence could be taken certain conditions laid down in section 190(1) have got to be fulfilled. Sections 195 to 199 prescribe conditions precedent to the taking of cognizance by a Magistrate. Neither section 190 nor section 195 has been amended expressly. There is nothing to show that they have been amended by necessary implication. The intention of the Viceroy was, while making an offence under section 188 “cognizable” so as to give powers of arrest to the police, to still keep the control of the public officer intact by maintaining the conditions of a complaint by him. It is a well-known principle that if a section is to be repealed or amended by the legislature, it must be done in express terms and not by implication.

Regarding merits, the material facts must be stated in the order. A reproduction of the words of the section by way of opinion is not a statement of material facts. Material facts are facts that prove the necessity and justification for the order. A mere statement that an inquiry is to be held is not a statement of a material fact. The material facts have to be stated in order to enable the higher authorities to consider whether the order is a proper or a lawful one.

The order is directed against the very holding of the inquiry. The objection is not to individuals. The prohibition being directed to the inquiry itself if it is bad as to a part of it, it is bad as to the whole. The analogy of contracts should be applied. See Indian Contract Act, notes to section 24; Kristodhone Ghose v. Brojo Gobindo Roy. To delete a portion and to allow the rest of the order to stand would amount to rewriting the order. The Magistrate had not in mind the individuals but the inquiry. To maintain the order as to individuals with the reasons directed against the inquiry is to make a new order. The contention that the words “a particular place” in the section mean or include all places would render the section meaningless. The order should indicate with certainty and without any vagueness the acts prohibited and if addressed to the public could only restrain them when visiting a particular place which can only mean a small specified area and not the whole area of 3,400 square miles over which the Magistrate's jurisdiction extends.

No justification is shown for making an order of such a sweeping character.

In Reference No. 97 of 1930, the order is not addressed to any particular individuals by names. The old order was endorsed and served on the members of the second committee. The committee was to hold its sittings at Ahmedabad, and before they entered the building where the sitting was to be held, the members were arrested on the door-steps. Can it be honestly said, even by a stretch of imagination, that by making an inquiry at Ahmedabad there would be disturbance of public tranquillity at Ranpur? To an ordinary mind, it looks as if the police are intent on shielding their own deeds, and that the Magistrate is lured into protecting them. In any view, the operation of the order beyond the limits of Ranpur is perverse.

The accused here were first put up on a charge under section 188 of the Indian Penal Code; and then a further charge under section 143 of the Code was added. The alleged object of the unlawful assembly being to disobey the order, section 188 still remains the essential ingredient of the offence. To dispense with the complaint under section 195 would be circumventing the provisions of section 195 of the Criminal Procedure Code even in the second case.