ORDER
Kapur, J.
1. This is a rule issued by my Lord the Chief Justice at the instance of sections P. Jaiswal against the Stats and the District Magistrate, Karual, to show cause why the proceedings which have been started under Sections 452 and 147, Penal Code against the petitioner and fourteen others be not quashed under Sections 561A, Criminal P. C.
2. The facts briefly stated are that a house which is contiguous to the house of S, P. Jaiswal was originally owned by one Dr. Data Krishan of Karaal and his father Chandar Parkash. On 29-11-1951 this house was purchased by the Karnal Distillery Company, Limited, Karnal. This house bears No. RA-733. In his petition in this Court dated 14-10-1952 which is supported by an affidavit it is stated that this house 'Was in a serious state of disrepair, dilapidated and in a condition that the entire structure and its various portions were liable to collapse by operation of natural causes,' and that the house is 50 years old and being in a dangerous state three notices had been issued by the Municipal Committee, Karnal requiring the owners to demolish the southern wall and some other portions of the house, and to the petition are attached three certified copies of the notices of the Municipal Committee. The first one was issued to Dr. Data Krishan and is dated 21-11-1949, and the person issuing it is the Executive Officer of the Municipal Committee, Karnal. The second one is dated 7-3-1950 underSections220, Punjab Municipal Act and was issued to Dr. Data Krishan in which it is stated that the back wall of the house was in a very dangerous condition and that the owner had not carried out the notice which had been previously given and therefore the Doctor was called upon to pull down the wall and in default it would be pulled down by the Municipal Committee. The third notice similar to the first was dated 2-6-1950. It is not clear from this record as to what action, if any, was taken by the previous owners in regard to these notices, but on 8-9-1952 another notice by the Executive Officer was issued to the Distillery Company through its Managing Director underSections113, Municipal Act, calling upon the Company to pull down the wall within four days and in default action would be taken under the law.
3. Raghbir Singh and Ruldu Ram with their respective families were it is alleged in possession of this house, and on 11-9-1952 in the evening -- the exact time is not clear from the record or police diaries -- some labourers of the Company pulled down a portion of the southern wall. The petitioner has filed before me five photographs showing the relative positions of his house and of the house which the Company had purchased and was alleged to be in the possession of Raghbir Singh and Ruldu Ram. These have been marked by me as 'A', 'B', 'C', 'D' and 'E'.
4. At 8 p. m. on the same day one Mehta Mangal Sain, who has a house contiguous to the house in dispute, made a report at a police post which was at a distance of about 100 yards or so from the house in dispute and which was incorporated in a first information report at 8-30 p. m. in the police station. In this it is stated :
'A little while ago, Kallu, a servant of the Distillery Company, with several people came to the house of Kanwal Raghbir Singh and they are pulling down the roof and the back wall of the house. Raghbir Singh is not at the house, nor is his wife. Hearing the noise of his children I went up on the roof of my house and saw what was happening, and I have come to make a report. Ten or twelve people are pulling down the house and the luggage and household goods are being taken out of the house and are being put in the 'Sehn'.'
5. There is a previous report dated 6-9-1953 by Ruldu Ram in which he stated that Kallu, a servant of the Company, had asked him to vacate the house as it had been given over to him (Kallu) on rent, otherwise dire consequences will follow.
6. On the report of 11-9-1952 Assistant Sub-Inspector Bakhat Ram, the Station House Officer, started investigation. He recorded the statements of several persons. On 12th September he again examined some other witnesses and also recorded the statement of Jaiswal.
7. Head Constable Prabh Dial who was the first to reach the spot stated in the police diary at 8-15 p. m. that he found Kallu and others demolishing the southern wall of the house and B. L. Chopra was standing in the lawn of Jaiswal's house. He did not find Savitri, Bimla or Raghbir at the spot as he was informed that they had gone to make a report to the higher authorities.
8. Jaiswal was interrogated by the Police on the 12th. It appears that after recording the statements of various persons on the 1st day the Assistant Sub-Inspector was not satisfied with what had been stated by Raghbir Singh and others. He found that the parties were trying 'to throw mud at each other and that they were making contradictory statements after consultation with their own party-men' and therefore he was of the opinion 'under the circumstances the case requires a close scrutiny and careful consideration'. At the end of the second day he was of the same opinion. On that day both B. L. Chopra and Raghbir Singh approached the Police that the proceedings might be stayed for two days as they wanted to compromise.
9. At that stage the Investigation Officer was not satisfied as to what, if any, offence had been committed, and he thought it necessary to get the advice of the Prosecuting Inspector. It appears that because of the talk of compromise nothing was done by the Police. On 17-9-1952 the investigation was taken over by Sub-Inspector Arjan Das under the orders of the Superintendent of Police. In the police diary there is an entry of 17-9-1952 recorded at 4 p. m. in the hands of Arjan Das. It gives the purport of the letter of the Superintendent of Police No. 38709 dated 15-9-1952 :
'Since the Sub-Inspector has returned, he should take up the investigation of the case in his own hands. The offence is of technical nature and the opinion of the Prosecuting Inspector and Public Prosecutor should therefore be obtained, and if the Prosecuting Inspector thinks proper he should also seek the advice of the District Magistrate. The investigation of the case should be finished one way Or the other within a week.'
10. Sub-Inspector Arjan Das then recorded supplementary statements of some of the persons who had been examined by Bakhat Ram before. This was concludes at 8-30 p. m. At the end of the police diary of the 17th there is a note in blue pencil. It is not stated in the diary as to when and by whom it was written, but I was informed during the course of arguments that this is in the handwriting of the Reader to the Superintendent of Police. The note is to the following effect:
'The complainant is not proved to be in full ossession of the house. The higher authorities are to be consulted further.'
11. On 18th September at 10 a. m. the District Magistrate called the Sub-Inspector. It is stated before me that the District Magistrate was in Karnal on 11th and 12th September but was away from then upto the 17th or 18th, and the parties are not in agreement as to when he came back to Karnal. The petitioner's counsel stated that he got back on the 18th, but counsel for the State stated that he arrived there on the 17th. This by itself does not seem to be of any very great importance. At 12 a. m. on 18th September the District Magistrate verbally ordered the Sub-Inspector to arrest all the accused and present a 'challan' to the Court on that very day 'and at all cost', and as a result excepting S. P. Jaiswal, the petitioner, all the other accused were arrested and the former wag not arrested as he was in Simla.
12. On 19th September Jaiswal made an application in this Court in which he stated that a non-bailable warrant had been issued against him. But it appears that no non-bailable warrant had been issued, and he was released 011 bail by this Court. This perhaps would be a proper stage to mention that on the 19th an application was made in Court that Jaiswal was absconding and that a warrant for his arrest should be issued. It was also stated therein that enquiries had been made from his relations but nothing was known about his whereabouts. It is on this very day that the application for bail was moved and granted by this Court.
13. In his application to this Court under Sections 561A, Criminal P. C., after reciting some of the facts, which I have mentioned above, the petitioner stated that he was at Simla on 18-9-1952 in connection with a conference of distillers, that he was, in the interests of safety and to carry out the orders of the Municipal Committee, bound to null down the dilapidated portion of the building and that his intention was to save the property from destruction, 'prevent immediate damage to the adjoining building in occupation of the petitioner and to save the Company against a possible claim of damages'. He denied that any unlawful assembly was constituted, and he also alleged that his prosecution had been ordered by the District Magistrate on account of personal ill-will and out of vindictive-ness, and this seems to have arisen because of the attitude which the District Magistrate adopted against the petitioner in the Club of which both of them are members; so much so that the petitioner and the District Magistrate are not on sneaking terms. He also stated that his license for arms which had been in his. possession for the last ten or fifteen years had been cancelled with the object of humiliating- him.
14. The District Magistrate has put in written statement submitting that the Magistrate had rightly taken cognizance of the case under Sections 190 (1))(b), Criminal P. C., but has denied the allegation of personal vendetta as being false and scandalous. He also denied that the house in dispute was in danger of collapse 'in the imminent or any foreseeable period of time'. He then went on to give his opinion about the legality of the notice which had been issued by the Executive Officer and stated that under the Municipal Act the Executive Officer had no right to issue such a notice and that the petitioner being an ex-President of the Municipal Committee and a member of it now should have known that the notice issued by the Executive Officer was ineffectual. He further stated :
'There were no 'bona fides' of the petitioner in rushing to demolish the house of the occupants whom the petitioner was anxious to oust forcibly and which the occupants apprehended. The 'mala fides' of the petitioner are proved by, the fact that a similar notice was issued under Sections 113, Municipal Act, to demolish a wall of the house in the sole occupation of the petitioner, which the petitioner contumaciously defies to carry out and the President has taken action under Sections220, Municipal Act against the petitioner. If the petitioner felt bound by lawful orders of competent authorities, then he should have demolished the dangerous wall of his own house first and not that of an occupant whom he was anxious to oust forcibly.'
He went on to say in his written statement that Raghbir Singh and Ruldu Bam occupied the house and had been threatened by the petitioner 'to vacate the house on pain of dire consequences'. He then stated in para 3(v) as follows :
'That serious offences under Sections 147 and 452, Penal Code and others were committed by the petitioner and his co-accused in scaling over the wall and entering into house RA-733 and committing mischief and other offences for which they are liable to be prosecuted.'
He denied that he had ordered the prosecution of the accused and stated that all he had done was to advise the Station House Officer to send up the accused 'for trial and obtain a judicial pronouncement', He also denied that the Police came to the conclusion at any stage that no offence had been made out. He then stated that the petitioner had no right to take the law into his own hands and that if he wanted to save the property, he should have moved in accordance with law and not started 'committing flagrant breaches of it'. He again denied the allegations of personal vendetta and admitted that the petitioner's arms license had been cancelled as there was 'prima facie' evidence of his brandishing the arms at the time of the commission of the offence and this was done on the recommendation of the Station House Officer, City Karnal Police Station, and of the Superintendent of Police. Ho has stated at the end of his written Statement :
'That the notice having no force of law, and there being actual 'mala fides', no case for quashing the proceedings has been made out.'
This written statement is signed by the District Magistrate; it is not affirmed by him nor is it accompanied by an affidavit which would have been the proper thing to do. Along with this written statement was filed an affidavit of Hukam Chand Gupta, President of the Municipal Committee, Karnal. Why he should have made this affidavit, and at whose instance, has not been made clear to me, but I have no doubt that it must be at the instance, of some one who is now interested in getting the rule discharged. Sub-Inspector Arjan Das has also made an affidavit in which he has stated as under :
'The District Magistrate did give his advice that judicial pronouncement should be obtained by sending up the accused for trial after their arrest, but this sound advice was in complete accord with the facts brought out during the investigation of the case, and that it is absolutely incorrect that the District Police at any stage of the investigation came to a conclusion that no offence had been made out.'
The petitioner made another affidavit dated 3-11-1952, two days before the case was taken up on the adjourned hearing. In this the petitioner stated that the prosecution was filed in Court on 19-9-1953 and while the question of his being guilty or otherwise was still 'sub judice', the District Magistrate had ordered immediate cancellation of the licenses without there being any reason for it, that this order had not, been communicated to him and- notwithstanding an urgent application for a copy, which would show the reasons of cancellation, had not been supplied to him and that he had ordered his prosecution on 27-10-1952 for an offence under Sections 23, Arms Act for an alleged violation of Rule 11, Punjab Arms Rules and Orders. He also stated in this affidavit how he disposed of his arms and ammunition, that the registers of Messrs. Khushal Singh, Goende, Arms and Ammunition Dealers, Karnal, had been taken possession of by the Police ana that the District Magistrate was deliberately avoiding to pass any orders in regard to his arms licenses. To this affidavit no reply has been filed by the State. The ground given is that this was filed late and also that Mr. Kartar Singn Chawla, who was appearing tor the State, was not in Simla when this was filed and therefore no affidavit could be filed in opposition.
15. I have been taken through the various documents on the file and the counsel for the parties have given me the greatest amount oE assistance in this case.
16. It is not an ordinary remedy which the petitioner is seeking, but he moves that the proceedings be quashed at the stage at which they are, that is the prosecution has just been put into Court. Ordinarily I am not inclined to interfere at an early stage, and I have no doubt that when matters are placed before a Magistrate, he would take a proper view of the facts and would proceed in accordance with law, but the petitioner submits that in this case the circumstances are such that no offence is made out and the prosecution would be nothing more than harassment and abuse of the process of the court as there is no possible chance that any reasonable jury and therefore any reasonable Magistrate would convict him on the material which is on the record. He has also submitted that his constitutional right has been violated by the manner in which the proceedings have been initiated. It is not necessary for me to refer at this stage to any cases in which the powers of the High Court to interfere under Sections 561A have been denned. The only question is whether any case has been made out in the present case for me to interfere, and in my opinion it has been made out.
17. In the First Information Report which is after all the basis on which an investigation is to be started the only name mentioned by Mehta Mangal Sain, the informant, is that of Kallu, and I have no doubt that hadSectionsP. Jaiswal and B. L. Chopra been at the spot their names would have been mentioned by Mangal Sain. It is unlikely that Mangal Sain would be familiar with Kallu and would not be familiar with either Jaiswal or Chopra. Head Constable Prabh Dial who arrived at the spot at 8. 15 p. m. found B. L. Chopra standing in the lawn of Jaiswal's house and he found that excepting Jaiswal and Chopra all the other accused were 'busy in demolishing the house'. At that stage there was no mention of Jaiswal being there or of his brandishing any arms.
18. I have gone through the whole of the police diaries and also the evidence of different persons who were examined by the Police. It is true that on the very first day Bimla Devi, the daughter and Savitri, the wife of Baghbir Singh, did mention the name of Jaiswal as being present at the spot, and on the following day Mastan Chand stated that Jaiswal,, Kallu and others were there and labourers were demolishing the wall. There was no allegation of brandishing any arms by Jaiswal. As a matter of fact, what Mastan Chand did say was, 'There was a crowd there. Noon was also there. Noon was armed with a gun'. It is not necessary to discuss the evidence of various persons. It appears to me to be most contradictory, and in the police diary also on the first day the Investigating Officer stated that the statements made were contradictory and that attempts were being made to make false and serious allegations and thus 'making the police dance to their tune.'
19. On the second day also the Investigating Officer made a note that the parties were
'still indulging in mud slinging to grind their own axe and wanted to fire off the shot from over the shoulders of the Police'.
It is significant that the note made by somebody in blue pencil, and somebody, according to the State, is the Reader of the Superintendent of Police, is that the complainant had not been proved to be in full possession of the house and the higher authorities had to be consulted further. The Superintendent of Police on 15th September, presumably on some report made by Investigating Officer, was of the opinion that the offence was a technical one and that legal advice should be sought. It is incorrect to say therefore that the Police had not come to the conclusion that there was no case to go to the Court. It is true that the opinion of the Police is not binding on Courts, but at the stage of investigation it is the statutory duty of the Police to make up their mind as to the sufficiency or otherwise of the evidence for the purpose of sending the accused for being tried by a Magistrate or not.
20. At this stage I may mention the necessary provisions of the Code of Criminal Procedure which have a bearing on this matter. UnderSections154 a report is made to the Police andSections157 gives the Police power to investigate. UnderSections159 a Magistrate can on receiving a report under Sections157 direct investigation. UnderSections169 it, is provided that if no sufficient evidence or reasonable ground is made out for sending the case to the Magistrate the Police Officer shall release the accused in custody upon his executing a bond for the purpose of appearing before a Magistrate when so required and under Sections170 it is provided that if a reasonable ground is made out the accused has to be sent to a Magistrate, and under Section 173 after the completion of every investigation the Officer in charge of the Police Station has to forward to a Magistrate his report giving the names of the parties, the nature of information, etc. etc. and under Sub-section (3) ofSections173 the Magistrate has to look into the report and make such orders in regard to accused who has been released on bond under Sections 169, and this order is a judicial order. At no stage is power given to a District Magistrate to make an order of the kind which was made in the present case unless he is acting under the Criminal Procedure Code as a Magistrate and then his powers are what I have mentioned above.
21. The District Magistrate arrived at Karnal on 17th or 18th September. He has not stated in his written statement that on his arrival he was informed of any particular reason why he should have peremptorily ordered the arrest of the accused person and started the case on that very day. A reason was suggested by Mr. Chawla that complaints about the occurrence had appeared in the Urdu Press and some newspaper cuttings were produced before me. But I can hardly believe that a responsible parson like the District Magistrate would act in this manner merely because a garbled account appears in some newspaper, A Magistrate has to act judicially and has to be guided by the provisions of the Criminal procedure Code and not at the bidding of any outside agency, howsoever influential. Investigation was being conducted by the Police and the Superintendent of Police was of the opinion that it was a technical offence and there is a note showing that there was a dispute with regard to the possession. There is no statement by the District Magistrate indicating that he at any stage carefully looked into the 'zimnis'. His written statement on the other hand shows that he had not looked into them at all because the three facts which he has incorporated in his written statement would never have been mentioned if he had taken the trouble of looking into the 'zimnis', e. g., (1) that the petitioner had threatened the occupants to vacate 'on pain of dire consequences, '(2) that Jaiswal was scaling the wall and (3) that he was brandishing his arms. Even if the statements of Bimla and Savitri be taken to be correct and the statement of two little boys also be taken to be correct, all that they said was that Jaiswal was there which might mean that he was with the crowd as was stated by Mastan Chand. But whatever be the statements of the witnesses, the Police had come to the conclusion that the case was only technical and under the statute it was for them at that stage to make up their mind whether there was a case or not, and if they had made a report to the Magistrate as required under 8- 173, Criminal P. C., it was then open to the Magistrate to review the opinion of the Police. I fail to see why the District Magistrate should have ordered the arrest of the accused under these circumstances and so peremptorily. The Criminal Procedure Code gives no such powers to a Magistrate. On the other hand Rule 26. 2 in Chap. 26 given in the third volume of the Punjab Police Rules of 1934 states that the Police shall defer making the arrest until the investigation is 'sufficiently complete and if there is no risk of the accused absconding,' and in the present case investigation could not have been sufficiently complete if right up to the 5th November in this Court the State was adding affidavits of different persons and at the stage of the arrest had yet to make up their minds as to what was the evidence in regard to the legality of the notices or the state of the wall which was demolished.
22. Counsel for the State relied upon Sections 4, Police Act and the rules made thereunder. Section 4 provides:
'The administration of the police throughout the local jurisdiction of the Magistrate of the District shall, under the general control and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendent as the Provincial Government shall consider necessary'.
All that this section, in my opinion, provides is that the administration of the Police is under the control and direction of the District Magistrate and that Inspector General of Police has been given power to make rules. The statutory power given under this Act to the District Magistrate is of general control and direction to the police. It does not override the provisions of the code of Criminal Procedure nor can the rules made under the Police Act override the Criminal Procedure Code, and as a matter of fact the rules do not provide anything which is contrary to the Criminal Procedure Code. In any case, it was not for the District Magistrate to have made the peremptory order that he made. If his advice was sought, he might have given such advice which after going through the police diaries was necessary to give to the Superintendent of Police, but his written statement shows that he never had any grip of the facts of the case which is clear from his written statement which has some glaring factual inaccuracies.
23. Under Article 21, Constitution of India no person can be deprived of his life or personal liberty except according 'to procedure established bylaw'. Referring to these words Patanjalt Sastri J., as he then was, observed in --'A. K. Gopalan v. The State', AIR 1950SectionsC. 27 at p. 74 (A), the following:
'....may well be taken to mean that the Privy Council referred to in -- 'Emperor v. Benoar1 Lal Sharma', AIR 1945 P. C. 48 at p. 52 (B), as the ordinary and well-established criminal procedure, that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of Criminal procedure in the country'.
And in --'Eshugbayi Eleko v. Government of Nigeria (Officer Administering)', (1931) A. C. 662-(C) Lord Atkin delivering the judgment of the Privy Council said:
'In according with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice'.
It was thus for the state to support the legality of the action which the District Magistrate took-in this case. It is not clearly stated by the State what decision the Police had come to, the letter of the District Superintendent of Police was never produced. The Police diaries clearly show that the Police during their investigation were not satisfied with the evidence and there is no indication that the District Magistrate was performing any of the judicial functions conferred upon him by the Code nor has he stated that he was acting under the Police Act in exercise of his general control and direction of the Police. No reason has been shown why Rule 26. 2 of Chap. 26 of the Police Rules Vol. III was not observed. Would it not therefore be a violation of the statutory right of the accused as guaranteed to him by the Constitution.
24. The question then arises whether any offence under Sections 452 or Sections 147, Penal Code, has been disclosed from the facts stated in the Police Report or by the police diaries. At this stage I may dispose of the objection that was taken on , behalf of the State that I am not entitled to look into the Police diaries for determining whether any case has been made out or not. This is a proposition of law which has only to be stated to be rejected. I cannot believe nor do I think that that is the law that a man can be put on trial and his liberty jeopardized when there is no material on which the Police could have made a report. That a Court has the power to look into the police records seems to be clear from the various sections of the Criminal Procedure Code that I have mentioned above. How is the Magistrate to give a remand without looking into the diaries. How is a Magistrate to proceed under Sections 173, Criminal P. C., if he is not to look into them. As a . matter of fact, the Code of Criminal Procedure contemplates the Magistrate to be in touch with the investigation of the Police at all stages right from the making of the first information report. If after investigation the Police comes to the conclusion that there is no case made out against the accused person the Magistrate can still go into the matter and give a judicial decision in regard to that. In the case of bail application I cannot believe that a Magistrate can either allow or refuse bail without looking into the police diaries. Under Sections 253(2), Criminal P. C., a Magistrate in a warrant case is entitled to discharge an accused at any stage which would include the stage at which he takes cognizance of the case under Section 190 (1) (b) of the Code. How can he order a discharge without going into the police diaries, and if a Magistrate can order a discharge after looking into the police diaries, surely it is open to this Court when the matter is brought before it under Sections 561A, Criminal P. C., to also be able to look into them. In order to determine the correctness of the affidavits on the record it is necessary to look into the diaries. .
25. The offence which the accused are alleged to have committed is stated to fall under Sections 452, Penal Code, which runs as follows: '452. Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for putting any person in tear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine'.
26. The ingredients of this section are that there must be house-trespass which is denned by Sections 442 which in turn refers to criminal trespass which is defined by Sections 441. So, the first ingredient would be that there must be entry into or upon the property in possession of another person without intent to commit an offence or intimidate etc., & under Sections 452 there has, besides this, to be preparation for causing hurt to any person or for assaulting any person or wrongfully restraining etc.
27. Taking the case of Jaiswal, I can see no evidence of his entry into the house in dispute and there was no intention of his committing any offence. That itself would destroy any case of house-trespass, and I see no evidence whatsoever of his having made any preparation for any of the other ingredients that are mentioned inSections452.
28. At this stage I may dispose of the objection taken by Mr. Chawla that I should not interfere at this stage nor look into the evidence. I am unable to agree with this contention. I have to see whether there is any evidence which any reasonable man could expect. A case in support is -- 'Hari Charan v. Srish Chandra', 38 Gal 68 (D). In that case an application was made for quashing of the proceedings at the stage where summons was issued by the Chief Presidency Magistrate and after considering the material on which the summons was issued and holding it to be wholly contradictory the Calcutta High Court quashed the proceedings. So also in - 'Nripendra Bhusan v. Gobinda Bandhu', AIR 1924 Cal 1018 (F B) (E). Other cases I have considered towards the end of this judgment.
29. (After discussion of the evidence in the case of accused Jaiswal His Lordship proceeded:) The question of intention therefore cannot be held proved on this evidence. The house could not have been in a safe condition if notices were issued in the years 1949 & 1950 & those notices were also by the Executive Officer. The present notice of 8th September which was issued to Jaiswal was also by the Executive Officer. Even though a man may be an ex-president of the Municipal Committee and a sitting member, it is not open to him to examine the legality of a notice in regard to formalities, and, as I have said before, if the notice issued by the Executive Officer was a valid notice in the case of the wall of Jaiswal's house, it cannot be an invalid notice merely because it was in regard to the house in dispute. The attitude of the District Magistrate in regard to this matter is clear from the fact that it was stated before me that the District Magistrate proposes to take action against the Executive Officer.
30. As was stated by their Lordships of the Privy Council in -- 'Sinnasamy Selvanayagam v. The King', 55 Cal WN 1, (P) that intention specified inSections427 must be the dominant intention to annoy. The fact that the intention in the present case was to pull 'down the wall with the object of re-erecting it and thus to save loss and damage to life seems to me to be the dominant intention of the petitioner. It is not established that there was any other intention. On the evidence it is also clear that Jaiswal never entered the house. There was no case against him under any abetment section. He was prosecuted as one of the principal offenders, As there was no criminal trespass by him, and I have found that the predominant motive was not to annoy or assault or any of the other ingredients of Sections441 or 442, in my opinion no prima facie case under Sections 452 can be held to be made out against Jaiswal.
31. The question then arises whether a case under Sections147 is made out. It would be an offence under Sections147 if the ingredients of Sections141 (iii) are made out. It must be an assembly of five or more persons the common object of which is to commit any mischief or criminal trespass or other offence. I cannot see any one of these objects which can be established on the evidence which is on the record.
32. The case of chopra is similar. The evidence in regard to him is highly contradictory and there is no allegation that he did anything. If Jaiswal's case is quashed, proceedings against Chopra must also be quashed.
33. In regard to the others, whether their entry into the house is proved or not, there is no proof of their intention to commit an offence nor is there any proof that they made any preparations which are necessary ingredients of Sections 452. Their object solely was to pull down the wall which cannot be an offence if it is done with the object that I have already indicated.
34. Coming now to Sections 147, if no intention can be proved for constituting an offence under Sections 452 read with Sections 441 and 442, there cannot be an offence under Sections 147, because there was no assembly of five persons or more, the common object of which was to commit any mischief or criminal trespass or other offence.
35. Submission was then made by Mr. Sethi that the whole proceeding has been started against Jaiswal out of malice and ill-will and unfriendly feelings which exist between the District Magistrate and the petitioner, and in support Mr. Sethi has mentioned the following facts:
(1) The Police was of the opinion that the case did not disclose an offence or at least it was a technical offence. That matter is apparent, according to him, from a letter sent by the Superintendent to the Station House Officer. Mention of this letter is made in the diary of 17-9-1952. I have been noticing that the State has got all kinds of papers during the course of arguments here, but they did not think it necessary to produce the letter of the Superintendent of Police before me. I am entitled to conclude therefore that the Superintendent of Police did not think the case good enough to go into Court.
(2) The District Magistrate, who was away, called on his return the Station House Officer, and, as far as I can see, without going into the Police diaries, ordered the arrest of the accused and presentation of the case into Court that very day as a result of which the accused persons were arrested excepting Jaiswal who was at Simla. That the District Magistrate had not familiarised himself with the Police diaries is again clear from the written statement. There is no evidence of Jaiswal's scaling the wall or brandishing arms or giving threats and yet these things have been emphasized by the Dist. Magistrate in his written statement.
(3) Jaiswal was away at Simla in connection with a meeting of the distillers and yet, on the 19th, an application was made to the Magistrate who had taken cognizance of the case that Jaiswal was absconding and also that information had been asked from his relations but they did not know anything about him. Thus a rather unusual application which must have been known to be false was made in regard to a person of the position of the petitioner and warrants were actually prayed for.
(4) On the 19th an application was moved in this Court by Jaiswal in which an affidavit was filed stating that non-bailable warrants had been issued against him. The affirmation of this affidavit was defective and it was not stated anywhere in this affidavit that this information was true to the knowledge of the petitioner and yet an application was moved in this Court for his prosecution for perjury.
(5) Arms license of the petitioner was ordered to be cancelled in regard to five pieces of arms and this was done on 7-10-1952 when the matter was still 'sub judice' even in this Court.
(6) Copy of the order passed by the District Magistrate was not supplied to Rim in order to deprive him of his being 'able to make an application for review of this order by higher authorities.
(7) Although he had deposited his arms and amniunitlon with certain dealers and had informed the Superintendent of Police by letter dated 8-10-1952, the persons with whom he had deposited the arms were harassed by their registers being taken possession of and the petitioner has been ordered to be prosecuted for an offence of breach of one of the rules under the Arms Act. '
(8) The District Magistrate's written-state-ment is full of factual inaccuracies and the prosecution was actuated by malice and not with the object of vindicating the law which alone must be the basis of action taken by Magistrates or those on whom law imposes duties of enforcement of the law.
36. It is not necessary for me to give a finding on the correctness or otherwise of the various matters that have been raised, but they certainly would show that the District Magistrate is very anxious to prosecute the petitioner. I note with regret that the Station House Officer Arjan Das has made a false affidavit when he says that the District Magistrate gave him advice that judicial pronouncement should be obtained in regard Ho the case. I have already mentioned the entry in the police diary where it is definitely, stated that the District Magistrate ordered the arrest and prosecution of the accused. Why this Police Officer should tell an untruth is difficult for me to see unless it is to please the District Magistrate. It may be technically true that the Police had not come to the conclusion that no offence had been made out, but it is quite obvious that Bakhat Ram did make a report in which it was stated that the complainant was not proved to be in full possession of the house and thereupon the District Superintendent of Police wrote saying that the offence appeared to be a technical one. I should not have expected officials of the State to twist facts and not to state them in this Court in a straightforward manner or to keep back important documents which might help the accused.
37. I would not like to say1 anything more excepting this that it is not a very pleasing chapter in the administration of Karnal Dis-. trict, and officers of the Government would do well even where they feel strongly in regard to certain alleged offences to proceed in accordance with law. In the present case the authorities have allowed their exuberance and their belief in the guilt of the petitioner and his co-accused to get the better of their discretion and in a free State where a great deal depends upon the judicious use of judicial powers and exercising discretion in accordance with the established judicial precedents it gives the whole administration a bad name if actions taken by Magistrates have the look of malice. In a case like this where the Police Authorities were not convinced about the offence of the accused, the District Magistrate should not have given the peremptory order that he did without satisfying himself after such scrutiny of the Police diaries as he thought necessary and obtaining such advice which in his opinion was necessary to obtain. The Criminal Procedure Code prescribes the mode how a Magistrate should exercise his powers in regard to cases such as these and it is not open to any other Magistrate, howsoever highly placed he may be, to interfere except in accordance with law.
38. I am therefore of the opinion -
(1) That there is no evidence in the case of Jaiswal to prove the ingredients of the offence:
(a) there was no trespass by him;
(b) his dominant motive was not to annoy or commit an offence as required by Sections' 441 and 442;
(c) there was no brandishing of arms by him; and
(d) there is no evidence of preparation as required under Sections 452, Penal Code.
2. That no case has been made out against the other accused persons also because the necessary intention is lacking as also the preparation.
3. That the procedure adopted by the District Magistrate was a clear violation of the statute & is a breach of Article 21 of the Constitution.
4. That the way that the District Magistrate has acted is certainly capable of being construed as harassment.
39. At this stage I may deal with the question whether it is proper for this Court to interfere on the facts which I have found above. In - 'Jagat Chandra v. Queen Empress', 26 Cal 786 (G) at p. 790, the Court observed:
'But speaking generally it seems to us to be inadvisable to interfere in a pending case, imless there is some manifest and patent injustice apparent upon the face of the proceedings and calling for prompt redress. X X X he should not have been charged X X X and it follows that he should not be left, for a moment longer than is necessary, in the position of a person accused of an offence and forced to defend himself against a charge which there is no legal evidence to establish. Now, we have considered the whole of the evidence for the prosecution in the case before us, and we fail to see that it discloses any act of the accused which can be interpreted so as to bring him within the four comers of the charge.'
40. Kumaraswami Sastri J. in --'In reSectionsKuppuswami Aiyar', AIR 1916 Mad 408CH), held that the High Court can interfere at any stage if it is necessary so to do in the interests of justice and that no hard and fast rule can be laid down as regards the class of cases in which the High Court will interfere.
41. In -'Ramanatban Chetttiyar v. Sivarama. Subramania Ayyar', AIR 1925 Mad 39(I> at p. 40, the Court observed :
'The circumstances which will justify the interference of the High Court have not been and cannot be laid down with precision. While the Judges repeatedly held that only when exceptional grounds exist the High Court ought to interfere, the decided cases show that no hard and fast rule can be laid down but that when in the interests of justice the High Court's intervention became necessary, it was not refused.'
42. In--'In re Shripad G. Chandavarkar', AIR 1928 Bom 184 (J), it was held that the High Court has power at an interlocutory stage to quash the proceedings if a clear case is made out and that when it appears that the accused is not guilty on the face of the proceedings, the High Court will interfere even at an interlocutory stage in order to prevent further harassment of the accused, in that case again the learned Judges weighed the evidence which had been led against the accused and considered what his explanation was and quashed the proceedings. The learned Judges also took into account the fact that although the petitioner had harboured an offender, yet his intention had not been proved to be that of preventing his being apprehended.
43. In 'AIR 1924 Cal 1018 (F.B.) (E), C. C. Ghose J. said :
'I am fully sensible of the danger of interfering with cases, while they are still pending in the subordinate Courts, but I am equally alive to the danger of this Court not being able to say that it is its bounden duty to interfere when it is brought to its notice that a person has been subjected, or is about to be subjected to the harassment of an illegal prosecution.'
In that case there was evidence which might have been good ground for the Magistrate to believe that all the ingredients of Sections 154, Penal Code, excepting one were likely to be proved by the prosecution, but still the proceedings were quashed.
44. These cases therefore show :
1. that no hard and fast rule can be laid down in regard to the cases in which the Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage;
2. if it is brought to the notice of the Court that manifest injustice will result, the Court will exercise its extraordinary powers;
3. the Court can go into the evidence on the basis of which the prosecution has brought a charge and find whether that evidence will support the case which is sought to be made out against the accused.
45. in this case I have found the ingredients to be missing and the very essential to be nonexistent and there is besides this some indication that the case may not have been started merely for the purpose of vindication of law, and the element of personal malice and unfriendly feelings is not wholly excluded.
46. On these facts and in view of the law which I have discussed above, I think a case has been made out for quashing the proceedings. I would therefore allow this petition and under Sections 561A quash the proceedings which have beentaken against the petitioner and his co-accused &would; make the rule absolute.Proceedings quashed.