Full Judgment
Dalal, J.
1. In my opinion Chiranji Lal was wrongly proceeded against under Section 108, Criminal Procedure Code, when he ought to have been prosecuted under Section 153 A, Indian Penal Code. The facts found by the subordinate Courts are that on one and only one occasion Chiranji Lal, who is Assistant Secretary of the Arya Samaj at Bareilly, gave out to a peon of the Society certain notices to be affixed publicly in the city of Bareilly, the contents of those notices being such as to promote feelings of enmity or hatred between Muhammadans and Arya Samajists. Part IV, Criminal Procedure Code, is headed 'Prevention of Offences.' It does not provide for punishment of offences already committed. That part of the Criminal Procedure Code deals with steps to be taken to prevent offences in future. The judgment of neither subordinate Court gives any indication of Chiranji Lal having ever before disseminated such literature, or of any fear that he would do so in future unless bound over and prevented. It is obvious to me that proceedings were taken under Section 108, Criminal Procedure Code, to avoid the trouble and possible refusal of Government to prosecute under the provisions of Section 153A, Indian Penal Code. When the law has provided certain sanctions, it cannot he permitted that the same action may be taken without sanction by adopting a different course. Chiranji Lal at once admitted that he had given out the notices for public circulation, and pleaded that he had not read them before giving them out. This is not the spirit of a man prepared to do an undesirable act at any cost. To take proceedings under Section 108, Criminal Procedure Code, there ought to be evidence that, if not prevented, the person accused would continue to act in the way in which he had done. The words of the section are 'disseminates, or attempts to disseminate,' and do not cover only one act, in which case the words would have been 'has disseminated or has attempted to disseminate.' Both the Courts deal with one particular offence as if they were trying a charge under Section 153-A, Indian Penal Code, without inquiring into the reason why the applicant should be bound over. If, the analogy of the action taken in this case were applied to their sections of Chap. VIII, evidence of the commission of one theft would be sufficient to bind a man over under Section 110, Criminal Procedure Code and one beating given by one man to another would be sufficient to bind him over under Section 107, Criminal Procedure Code. When substantive offences are committed the law does not provide for an easy way of dealing with them under Chap. VIII, Criminal Procedure Code. In the present case if Chiranji Lal in spite of some of his notices being confiscated had continued in other ways to give out other notices for publication, this would certainly have been a Case to be dealt with under Section 108, Criminal Procedure Code. In the present case what has been proved against him is the commission of one particular offence at one particular time under Section 153-A, and there is no evidence whatsoever of his having done so before, or of his having an intention of doing so in the immediate future. In my opinion the proceedings under Section 108, Criminal Procedure Code, were not legally justified. I set aside the order of the Magistrate dated 20th of October, 1927, and discharge the applicant.