STATE OF GUJARAT v. GEORGE FARNANDES — 1971 DIGILAW 23 (GUJ)

D. P. DESAI, J. ( 1 ) THIS is an acquittal appeal from a trial resulting from what is commonly known as the agitation against the agreement between the Government of India and the Government of Pakistan on certain disputed territories in the Rann of Kutch which took place after the outbreak of hostilities between the two countries in the year 1965. It appears that as a result of this agitation some persons or groups of persons wanted to enter the Rann of Kutch and in particular to go to places known as Kanjarkot and Chhadbet in assertion of the fact that they were part of Indian territory Pursuant to the agreement between India and Pakistan the dispute between the two countries as regards territories in the Rann of Kutch was entrusted by the respective Governments to a Tribunal which gave its award on February 19 1968 It also appears that the Government of India took a decision to implement this award which led to the aforesaid agitation. It is said that as a result of this agitation a satyagrah was planned to be offered in protest against the award and therefore several persons in good numbers were invited to come to Kutch. It is also alleged that it was decided by the persons opposing the award that batches of volunteers may be sent to the Rann of Kutch with the object to obstruct the work which was being done at that time by the survey party of the Government of India and the State of Gujarat for the purpose of demarcating the boundary line. The learned District Magistrate of Kutch thereupon promulgated an order dated April 20 1968 under sec. 144 of the Code of Criminal Procedure (herein after referred to as the Code ). He stated therein the grounds of making the order in question and then in the operative part thereof he said:-NOW therefore I R. Balakrishnan District Magistrate Kutch under powers vested in me under sec. 144 of the Code of Criminal Procedure (herein after referred to as the Code ). He stated therein the grounds of making the order in question and then in the operative part thereof he said:-NOW therefore I R. Balakrishnan District Magistrate Kutch under powers vested in me under sec. 144 of the Code of Criminal Procedure 1898 do hereby order all those persons who intend to enter the Rann of Kutch to cause obstruction in the lawful work of fixing boundary pillars for the demarcation of the boundary between India and Pakistan or to protest against the implementation of the Kutch award not to enter the Rann of Kutch from any part of the Rann of Kutch extending from Lakhpat on the west to Bela Mauwana on the east and more specifically from the northern parts of the district of Kutch lying to the north of the line connecting Lakhpat to Saiyare to Mudan to Bharebari to Hajipir to Mota Bhitara to Udhama to Laywara to Dhorada to Bandha to Kotda to Nir to Dhoravira to Lodrani to Bela to Mauwana and also in the area to the north of village Khavda beginning from the northern end of the bridge across Bandi river on Khavda-Kunverbet Road near MES Pump House for the aforesaid purpose for a period beginning from 20th April 1968 to 19th May 1968. According to the prosecution on May 8 1968 a large number of persons proceeded from Khavda towards the Rann and this group included the 92 persons who were charge sheeted before the learned trial Magistrate. According to the prosecution these persons formed an unlawful assembly which had a two fold common object as stated in the charge Exh. 2 framed by the trial Magistrate. The common object was (i) to commit an offence by obstructing the members of the survey party who were public servants in discharge of their duties as such (ii) and for that purpose to disobey the order of the District Magistrate Kutch at Bhuj prohibiting entry in the area specified in the notification dated 20-4-1968 promulgated by him on 20-4-1968. It is said that the accused persons who were charge sheeted by these acts committed offence under sec. 143 of the I. P. Code. It is said that the accused persons who were charge sheeted by these acts committed offence under sec. 143 of the I. P. Code. The second limb of the charge was that they being members of such an unlawful assembly were commanded to disperse in the prescribed manner these accused persons continued to be the members thereof having knowledge that it was commanded to disperse and thereby each of them committed an offence punishable under sec. 145 of the Indian Penal Code. It appears from the judgment of the learned trial Magistrate that 58 persons of these 92 persons pleaded guilty to the charge and were convicted and sentenced. The remaining 34 persons pleaded not guilty and they were tried. ( 2 ) EVIDENTLY the prosecution had to prove that there was in fact an unlawful assembly. This it had to prove in respect of both the heads of the aforesaid charge and this the prosecution could prove by proving the two-fold common object alleged in the charge. The learned trial Magistrate came to the conclusion that there was an assembly of five or more persons but the common as mentioned in the charge was not proved. Therefore he found that the assembly was not an unlawful assembly. If that was so it was clear that each of the accused was entitled to acquittal in view of the charge framed against him. . . . . . . . . . . . . . . . ( 3 ) NOW the first hindrance in the way of the prosecution in this case is created by the finding of the learned Magistrate that the order in question which is produced at Exh. 134 in English and Exh. 135 in Gujarati was beyond the competence of the District Magistrate who passed it and was as such not legal. We will therefore address ourselves to this aspect of the order. The relevant portion of the order has been reproduced earlier. The order was challenged on behalf of the defence in the trial Court on various grounds but one ground which appealed to the learned trial Magistrate was that this order addressed as it was to public generally prohibited the members of the public from entering the prohibited area and did not direct them to abstain from certain acts while frequenting or visiting that area. The learned trial Magistrate on a consideration of some of the decisions cited at the bar came to the conclusion that under sub-sec. (3) of sec. 144 of the Code when an order is directed to the public generally it must prohibit the act that is likely to be done by the public when frequenting or visiting a particular place and it cannot prohibit the entry or a visit to that place itself For this purpose the relevant portion of sec. 144 of the Code may be reproduced:- (1) In cases where in the opinion of a District Magistrate a Chief Presidency Magistrate the Commissioner of Police Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. (2) Such Magistrate or the Commissioner of Police may by a written order stating the material facts of the case and served in manner provided by sec. 134 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management if such Magistrate or the Commissioner of Police considers that such direction is likely to prevent or tends to prevent obstruction annoyance or injury or risk of obstruction annoyance or injury to any person lawfully employed or danger to human life health or safety or a disturbance of the public tranquility or a riot or an affray (3) An order under this section may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. Before going to the contention of the learned Assistant Government Pleader it may be convenient to take note of certain decisions of the Bombay High Court in which orders made under sec. 144 of the Code which were addressed to the public generally came up for consideration and scrutiny with regard to their validity. ( 4 ) THE first decision was given as back as 1889 in Queen-Empress v. Lakhmidas-Makandas (I. L. R. XIV 165 Bombay Series ). In that case the District Magistrate by an order issued under sec. 144 of the Code prohibited public generally from giving caste dinner in the city of Broach. ( 4 ) THE first decision was given as back as 1889 in Queen-Empress v. Lakhmidas-Makandas (I. L. R. XIV 165 Bombay Series ). In that case the District Magistrate by an order issued under sec. 144 of the Code prohibited public generally from giving caste dinner in the city of Broach. A few days after this order the accused gave a feast in a private house to about 500 persons. He was therefore prosecuted and convicted for disobeying this order. The matter was taken in revision to the High Court and Scott J. speaking for the Division Bench said at page 166; after referring to sec. 144 of the Code:-WE are of the opinion that the particular order which was disobeyed and on which the Magistrate acted does not conform to the requirements of that section. The power of the Magistrate is there confined to the direction to a particular person to abstain from acts of a certain character or to the public generally to abstain from similar acts when frequenting a particular place The feast in question was held in a private house. We are of opinion that the order both in its substance and in its manner of publication was illegal as being beyond the powers conferred by sec 144 of the Code of Criminal Procedure. It is not directed to a particular person nor to the public when frequenting a particular place nor was it served on any person individually. This decision in terms says that when an order passed under sec. 144 is addressed to the public generally the act prohibited must be an act done when frequenting a particular place. The second decision is again of a Division Bench of the Bombay High Court reported in Bhagubhai Dwarkadas v Emperor (A. I. R. 1914 Bom. 198) In that case the District Magistrate of Surat acting under the aforesaid section made an order directing All persons to abstain from removing or causing to be removed or promoting aiding or abetting directly or indirectly in any way the removal of any dogs either in carts or otherwise and from preventing or trying to prevent or obstruct directly or indirectly the poisoning of such dogs in any way and from taking possession of or confining such dogs. It was mentioned in the order that it applied to the Surat City and to places within five miles of the city. Shah J. in his judgment after referring to the aforesaid section observed:-UNDER sec. 144 however the District Magistrate has power only to direct an order to a particular individual or to the public generally when frequenting or visiting a particular place. It is quite clear that this order complies with neither of these requirements. It is therefore made without jurisdiction. Heaton J. also said:-HE claims or appears to claim:- that the power to issue this particular prohibitory order to the public of Surat is conferred by sec. 144. But to me it is quite plain that it is not Clause (3) of that section cannot conceivably cover the case and the power to direct any person to abstain from a particular thing is not a power to direct the public generally from abstaining. Then there are two decisions again by two Division Benches in the year 1931. They are reported as Delvi v. Emperor (A. I. R. 1931 Bom. 325) and Motilal v. Emperor (A. I. R. 1931 Bom. 513) In both these cases the orders in question were considered as addressed to the public generally and it was held that when so addressed they must be limited under sec. 144 (3) of the Code to the public when frequenting or visiting a particular place. In the latter case it was further observed that subsec. (3) of sec. 144 is an exception to the general rule that the order shall be directed to a particular person and the order can be directed to the public generally only when frequenting or visiting particular places such for instance as a market or a park or other place within a specified boundary. These four decisions of the Bombay High Court proceeded on the basis that when an order under see. 144 of the Code is a addressed to the public generally it must be an order directing abstaining from doing of certain acts when frequenting or visiting a particular place. Speaking with respect that appears to be apparent from the language of sub-see. (3) of see. 144 itself sub-see. (1) of sec. 144 of the Code is a addressed to the public generally it must be an order directing abstaining from doing of certain acts when frequenting or visiting a particular place. Speaking with respect that appears to be apparent from the language of sub-see. (3) of see. 144 itself sub-see. (1) of sec. 144 is the enabling provision which confers powers on the District Magistrate to pass specific orders thereunder one of which is to direct any person to abstain from doing certain acts. That power of course is conditioned by the formation of the opinion that such direction is likely to prevent or will tend to prevent obstruction annoyance or injury or risk of obstruction annoyance or injury to any person lawfully employed or danger to human life health or safety or a disturbance of the public tranquility or a riot or an affray. These are the grounds on which the order under see. 144 (1) can be made. If such an order is to be addressed to the public generally then the direction must be to abstain from doing that act when frequenting or visiting a particular place. Sub-see. (3) therefore in terms distinguishes the direction to abstain from doing a particular act from the act of frequenting or visiting a particular place. In case of an order addressed to the public generally the prohibition against doing of that act can be imposed only when the act is purported to be done while frequenting or visiting that particular place. Therefore it is quite clear that the prohibition cannot be against frequenting or visiting the particular place itself; it must be against doing of a certain act when frequenting or visiting that place. Mr. Vidhyarthi however contended that the power conferred by sub-sec. (1) is quite independent of sub-sec. (3) and that the latter sub-section does not control sub-sec. (1 ). He further said that under sub-sec. (1) there is no bar to the exercise of the power conferred by that sub-section so as to direct even persons or group of persons not Frequenting or visiting a place to abstain from doing a particular act. Thus runs the argument because sub-see. (1) does not contain any such restriction as we find in ease of orders addressed to the public generally in sub-sec. (3 ). This contention is misconceived. Sub-see. Thus runs the argument because sub-see. (1) does not contain any such restriction as we find in ease of orders addressed to the public generally in sub-sec. (3 ). This contention is misconceived. Sub-see. (1) as observed earlier is an enabling provision which confers power upon the District Magistrate inter alia to pass specific orders if the other conditions of that sub-section are satisfied. Having conferred this power the Legislature provided by subsec. (3) that the power can be exercised by directing a particular individual to abstain from doing a certain act or to take certain order with respect to certain properties in his possession under his generally or the power can be exercised by directing the public generally to abstain from the aforesaid acts when frequenting or visiting particular places Therefore the question is not whether sub-sec. (3) controls sub-sec. (1 ). Sub-sec. (3) provides in a way a sort of an exception to the general rule that the orders shall he directed to a particular person and then lays down the conditions subject to which the orders can be directed to the public generally. The phrase when frequenting or visiting a particular place has been held by the Bombay High Court in the aforesaid decisions to be a sort of a condition for the exercise of the power conferred by subsec. (1) when the District Magistrate wants to direct an order to the public generally and not to a particular individual If therefore an order addressed to the public generally which does not distinguish between the act prohibited and the act of frequenting or visiting of a particular place but directs that that very place shall not be Visited or frequented is an order which is beyond the competence of the District Magistrate It is not as if the District Magistrate has been empowered by this section to prohibit the public generally from entering a particular place as has been done in the present case. The impugned order in terms prohibits entry into the Rann of Kutch which does not amount to prohibiting the doing of an act when frequenting or visiting the Rann of Kutch. It purports to prohibit frequenting or visiting the Rann to Kutch itself; and considered in this light the order is certainly beyond the competence of the District Magistrate. But Mr. It purports to prohibit frequenting or visiting the Rann to Kutch itself; and considered in this light the order is certainly beyond the competence of the District Magistrate. But Mr. Vidhyarthi submits that the order should be read as prohibiting both entry as well as the entertainment of a particular intention with which that entry is made namely to cause obstruction in the lawful work of fixing boundary pillars etc. or to protest against the implementation of the Kutch award. He of course assumed without admitting that the order in question is addressed to the public generally. Even then he submitted that it satisfies the aforesaid condition of sub-sec. (3) because the entertainment of a particular intention is in substance prohibited by this order and if entertaining that intention anybody enters the Rann of Kutch the act of entering the Rann of Kutch amounts to breach of the order. It is really difficult to understand this contention. And for that purpose it must be reaffirmed that we must have before our mind the distinction between a prohibited act and the requirements of sub-sec. (3) that this act could be prohibited if it is done when frequenting or visiting a particular place. The Legislature has conferred power on the District Magistrate inter alia to direct any person to abstain from contain act (emphasis supplied ). What is prohibited is doing of an act and it is not understood how the entertainment of an intention can be prohibited by an order purported to have been made under sec. 144. Whatever may be the intention it is the act done distinct from the conditions imposed by sub-sec. (3) If therefore the order seeks to prevent entry into order is beyond the competence of the District Magistrate under sec. 144 of the Code if that order is addressed to the public generally. I do not think the Legislature ever intended or even thought of disciplining the minds of the citizens of the State by conferring a power on the District Magistrate to direct these citizens to abstain from entertaining a particular intention. Entertainment of an intention is a mental process which can certainly not be said to be an act contemplated by sub-sec. (1) of sec. 144 of the Code in respect of which the District Magistrate can pass an order. Then Mr. Entertainment of an intention is a mental process which can certainly not be said to be an act contemplated by sub-sec. (1) of sec. 144 of the Code in respect of which the District Magistrate can pass an order. Then Mr. Vidhyarthi urged that the impugned order is not directed to the public generally but only to distinct identifiable individuals. Therefore in his submission the condition as regards abstaining from doing an act while frequenting or visiting a particular place would not apply because in that case it can be said that the order is directed not to the public generally but to certain distinct individuals. He was asked to explain how these individuals who were identifiable in his submission can be identified and he said that they could be identified by the entertainment of intention contemplated by the order namely to obstruct the survey work to protest against the implementation of the Kutch award. This submission is also not well founded. A bare reading of the order shows that it is directed to the public generally. It is not an order directing a particular individual contemplated by sub-sec. (3 ). Therefore it is clear that the order in question directs the public generally and as the condition laid down by sub-sec. (3) for the exercise of the power to issue such an order has not been complied with in this case the order in question is beyond the competence of the District Magistrate. The District Magistrate when directing this order to the public generally had no right to prevent entry into the Rann of Kutch because that would amount to prohibition against frequenting or visiting that place. He had undoubtedly power to direct public generally to abstain from doing an act when frequenting or visiting the Rann of Kutch or when entering; the Rann of Kutch but the only act as submitted by Mr. Vidhyarthi which is purported to have been prohibited is the entertainment of the intention contemplated by the order while entering the Rann of Kutch. That cannot be done. Therefore the learned trial Magistrate was right in holding that the order in question is invalid. ( 5 ) MR. Vidhyarthi drew my attention to another decision of the Division Bench of the Bombay High Court in Sohrab Shavakasha Batliwala v. Emperor (A. I. R. 1935 Bom. 33 ). That cannot be done. Therefore the learned trial Magistrate was right in holding that the order in question is invalid. ( 5 ) MR. Vidhyarthi drew my attention to another decision of the Division Bench of the Bombay High Court in Sohrab Shavakasha Batliwala v. Emperor (A. I. R. 1935 Bom. 33 ). That decision does not lay down a different principle. On the contrary the impugned order in that case in terms directed abstaining form doing of an act which would be distinct from the act of frequenting or visiting the city of Sholapur in respect of which the order passed. The act prohibited was the act of organising or taking part in processions on any road public thoroughfare highway street or bye-lane situate within certain limits. On facts it was held that the accused had taken part in a procession on a through fare within the prohibited area. Mr. Vidhyarthi drew my attention also to another decision of the Division Bench of the Bombay High Court reported as Emperor v. Rajendrasinh Ramsinh (42 B. L. R. 356 ). In that case the question which has arisen for determination in the present case was not argued and decided at all. On the contrary the judgment proceeded on basis that the impugned order was validly made. The only ground on which the accused was acquitted by the trial Court in that case was that the trial had taken place on a date after the withdrawal of the impugned order by Magistrate even though the offence was committed during the subsistence of the order. The Division Bench held that the fact that the trial took place after the order ceased to be in operation was entirely irrelevant and the acquittal was wrong. No other question was argued before or decided by the Division Bench. ( 6 ) AS the impugned order is invalid it is clear that its breach does not amount to an illegal act. Therefore assuming that there was common object of the assembly consisting of these respondents to commit breaches of this order that common object cannot be said to amount to doing of an act which amounts to an offence. Therefore the assembly cannot become unlawful. If that is so it is not disputed that the acquittal of the present respondents is correct. ( 7 ) IN the result the appeal fails and is dismissed. Appeal dismissed. Therefore the assembly cannot become unlawful. If that is so it is not disputed that the acquittal of the present respondents is correct. ( 7 ) IN the result the appeal fails and is dismissed. Appeal dismissed. .