Emperor Vs. Raghunath Venaik Dhulekar and anr. - Court Judgment

Walsh, A.C.J.

1. This is an appeal by Government against as acquittal by the Sessions Judge of Jhansi of two members of the public, who had been convicted and severely sentenced by the District Magistrate for an offence under Section 188 of the Indian Penal Code. They had been charged both under Sections 151 and 188 and the Magistrate, without acquitting under Section 151, held that it was superfluous to consider it. The appeal filed by Government treats the charge as one under Section 188. The complaint against the accused is that they, being two Brahmans, and men of education engaged in public life in Jhansi, one of them Raghunath Venaik Dhulekar being a High Court Vakil, and the other Atma Ram Kher being also a High Court Vakil, and Chairman of the Municipal Board of Jhansi, deliberately disobeyed a lawful order of the Sub-Inspector in the streets of Jhansi in the presence of a large number of people. The Sub-Inspector says that he was fetched by a message, and went on a bicycle in consequence of a report that a procession of a considerable body of Hindus, headed by persons playing English musical instrument, was threatening to pass a Muhammedan mosque playing music, and that there was reason to fear the outbreak of a riot. The witnesses on both sides agree that the playing of music in a procession passing the Muhammedan moaque was known to everybody to be a cause of offence to Muhammedans, and was just the conduct that was likely to lead from small beginnings into an extended fight and riot, with the risk of loss of life. The Sub-Inspector's evidence was that he ordered the music to stop, and he ordered the procession not to advance while playing music in the direction of the mosque, and that the two accused who were by this time in charge of the procession, and who ware at the head of it playing musical in struments, defied his authority, told him that he had no power to give such an order, and did in fact make a definite and determined show of disobedience by continuing to play the music, and by advancing a certain number of steps in the direction of the mosque, challenging the Sub-Inspector to use force and to take the instruments from them. That this is a substantially accurate account is perfectly clear upon the evidence. It is sufficiently established, even if one confines oneself to the written statement put in by the accused and the witnesses whom they called. Chand Singh, one of their witnesses stated that after the Sub-Inspector had ordered them to stop, the two accused took up a drum and drum-sticks, and advanced in the direction of the mosque, saying that they would advance playing the instruments, while the Sub Inspector declared that he would never allow them to do so. The same witness also stated that the Hindus wanted to play music in front of the mosque, and the Muhammedans objected to music being played in front of their mosque. A witness, Dabi Prasad, called for the defence, stated that the Darogha gave a verbal order, 'stop the music and stop the procession,' and that the accused insisted on advancing with music, and did so for two or three paces. He further stated that there had been trouble between the Hindus and the Muhammedans before the Ramlila, during Ramlila, and since Ramlila, over the question of music in front of the mosque. Babu Bodh Raj, who is also a vakil in Jhansi, and a correspondent for various newspapers, also stated that the communal feeling was vary strained over the question of music in front of the mosque and although the accused declared in their written statement that they intended the Sub Inspector no harm, this witness states that the Sub-Inspector asked him not to mention the matter in his newspapers, clearly showing that the conduct of the accused was not in the public interest, but was calculated to put the Sub-Inspector in a difficulty, so that if a riot took place, which he might have prevented he would get into trouble, whereas on the other hand if ha exceeded his rights and went beyond what was justified in his interference with the accused, he might equally get into trouble with his superiors. There is a serious conflict between the written statement of the accused and the evidence of one of the prosecution witnesses whom they have mentioned. They declare that there were no Muhammedans before the mosque that several were summoned to the spot and were asked by the Sub-Inspector whether they had any objection to the music, and they said 'yes,' but that they also said that there were no Muhammadans who would attack the procession if it passed the mosque the point made by the written statement is a foolish one, because nobody can guarantee that no Muhammadan will use force. The accused professed, by their superior wisdom, to know that there was no risk of a riot, and both in the street to the Sub-Inspector, and in their written statement, they have definitely taken the ground that the Sub-Inspector was wrong in thinking that there was any risk, and that they, the accused, know batter, but the prosecution witness Musawwir Husaia said that he was at the mosque, that there ware-about 250 Muhammodans inside and outside the mosque, and that they were threatening to lay out corpses if the music was not stopped. On this evidence it is perfectly clear that the Sub-Inspector wag interposing within the meaning of Section 149 of the Criminal Procedure Code for the purpose of preventing a cognizable offence, namely, riot and grievous hurt. If the-evidence for the prosecution is accepted, the defiance and disobedience to the Sub-Inspector's order by the accused is made much more apparent, I am of opinion that the Sessions Judge took an altogether erroneous view of the evidence, and misunderstood the charge. Ha treated the charge as though it was for breach of an order given by the Sub-Inspector not to pass the mosque, but the order clearly was to stop the music and to stop the procession than and there. The Sessions-Judge agrees that the accused continued to advance boating drums and indicated that they would only stop to force and he came to the conclusion that they did not in fact disobey the order, because eventually the drums wore taken away and the assembly dispersed, and that they only refused to obey without carrying their refusal into actual disobedience. This view seems to me inconsistent with the-evidence. To take a simple illustration, if a father forbade his child to light a match in the presence of some highly combustible material, and the child lit the match, the child would be none the less guilty of disobedience, because he immediately blew it out and no explosion took place.

2. Whether the offence is one, which, on the facts as I find them, come within Section 188 of the Indian Penal Code, is no doubt a debatable question. The principal argument addressed to us was that there was no lawful order by the Sub-Inspector; in other words that he was not authorised to promulgate an order to the accused to stop the music, or to stop the procession. I find great difficulty in accepting this view. But as my brother is of opinion that an offence has been committed under Section 151, it seems to me that justice can be done by convicting the accused under this section, and that it is unnecessary to press the charge under Section 188 as in the circumstances of this case they overlap, and we have power under Section 423 to convict under either of them. I merely content myself with saying, that with reference to the question whether an order by the Sub-Inspector in the street to a person to desist from a particular piece of conduct, or from an act which he threatens to perform or repeat, is a lawful order within the meaning of the section, it is sufficient to turn to Section 149, Criminal Procedure Code, or to Section 23, or Section 31 of the Police Act V of 1861. I do not refer to these sections for the purpose of denning the offence in this case, nor for ascertaining the penalty for a breach of the sections mentioned. To my mind they are relevant as evidence of what may, or may not, be a lawful order by a Sub-Inspector, Section 149, Criminal Procedure Code, authorises him to intervene for the purpose of prevention of a cognizable offence, and I am unable to see why-if he found that intervention in the form of a verbal order given to persons whose conduct appears likely to lead to the commission of such an offence is necessary and sufficient-he should not be held to be authorised to give such verbal order, and to promulgate it in such a manner as he blinks best. Similarly the sections of the Police Act prescribe among other things his duty to prevent the commission of offences and to keep order in the public streets. The point was not argued before us, but the real difficulty which I feel about applying Section 188 is the use in the section of the word 'promulgate.' This is rather an unusual and technical term for a mare verbal order to halt or stop, such as a commanding officer might give to troops. Prima facie 'promulgate' seems to indicate, if not a formal document printed or written, at any rate some form of publication. The view that it must be printed or written may be rejected, because a large proportion of the public in India are illiterate and cannot read orders so promulgated and if a Sub-Inspector definitely conveys order in a loud voice to a crowd in the street to stop, so that those who are addressed may understand it to be a definite order promulgated by a public officer in authority, it is difficult to see how, on the one hand, a sudden crisis is to be otherwise dealt with, and how a person defying the policeman is to be punished, and, on the other hand, where the line is to be drawn between a verbal order loudly promulgated and a mere verbal communication in the nature of persuasion or even command quietly communicated to the person whose conduct is complained of, but out of the hearing of other members of the public. This is a question seriously affecting the protection which Courts of law must necessarily give within the-law to police officers acting within the scope of their authority, and I find a difficulty in holding that the offence in this case does not come within the express terms of Section 188. But as I have said it is not necessary for me to do more than express my opinion upon this point, as both members of the Court are agreed that an offence has been committed under Section 151, for which we may either order them to be re-tried, or may find them guilty and sentence them under Section 423 and Section 561-A of the Criminal Procedure Code.

Sulaiman, J.

3. This is a Government appeal from an acquittal. The case was-instituted under Sections 151 and 188 of the Indian Penal Code, but the Magistrate considered that the latter section was more appropriate and convicted the accused under it, sentencing them to six months' rigorous imprisonment and a fine of Rs. 500 each. The Sessions Judge has acquitted them.

4. Certain facts are not in dispute. There had been considerable religious excitement for some months in Garhia Phatak, a settlement of Bail way workmen situated on the-outskirts of Jhansi, over the question as to whether Hindu processions with music should be allowed to pass in front of a mosque. In October, 1923, during the celebration of the Ramlila, a riot bad only just bean averted by the intervention of the police and Magistrates.

5. On November the 13th, the Secretary of the Jhansi Gaoshala informed the Superintendent of Police that his society would take out a procession on November the 19th in that quarter. It is strange that if there was really a serious apprehension of a breach of the peace, no steps were taken by the police to forbid the procession or to require licenses under the Police Act. In fact, as the learned District Magistrate himself has remarked, proper police arrangements were not made in advance, but when on the 19bh of November a Gaoshala procession with a band of musical instruments was passing long a route which was to be past the front of the mosque and was actually in sight of it, Sub-Inspector Raghunandan Singh, the police officer in charge of the station, came running on a bicycle with the intention of stopping the advance of the procession with music. The Sub-Inspector's statement is that he was aware that there was a strong feeling between Hindus and Muhammedans 10 Garhia Phatak. On that day he was informed by a constable that a procession had arrived and that there was a danger of trouble in front of the mosque. He ran to the place, saw the procession consisting of some 700 or 800 men and heard the music. He also says that he heard a cry from the Muhammedans (200 or 300 in number and assembled near the mosque) to stop the music. Babu Raghunandan Singh says that he cried out in a loud voice several times, addressing the procession generally and the two accused in particular 'Stop the music or there will be a riot.' He -says, he had also called out, ' Stop the band, don't advance.' He further states that he called out to the crowd 'Go away from here, a riot will occur.' And said to the accused ' Remove the crowd from here.' The Sub-Inspector says ' The band went on playing 15 to 20 minutes after I bad ordered them to disperse and half an hour after my first order to stop the music' As to the advance he says that the procession advanced six or seven paces in spite of his order. He says that the accused were themselves beating drums and advanced a few steps and said that they would not obey orders until force was used. When however a constable attempted to take the instruments from the accused's hands they offered no resistance and deposited them on the ground. He says that he threatened to call a supposed guard behind the mosque to fire and then the crowd retired. This is the gist of the prosecution case.

6. The accused filed a joint written statement in the Magistrate's Court and their version was as follows : Sub-Inspector Raghunandan Singh came on a bicycle and shouted, 'Stop, lorry has come, you will all be blown up.' The procession stopped and at his direction it also moved a few paces back. The two accused advanced forward and asked whether there was any magisterial order prohibiting them from marching with music; the Sub-Inspector said that there was none but that he apprehended a breach of the peace. He would not let them proceed, so they went back to the procession where it stood. Dhulekar accused took the small rum in his hands and Kher accused the beating sticks. The two beat the drum and took one or two steps asserting their right. The Sub-Inspector asked them to stop drum-beating. They protested and suggested that the only course open for the Sub-Inspector was to take the drum from them. The Sub Inspector took up the suggestion and asked a constable to take the drum from them. When the latter approached and touched the drum they put it down. They then asked the people to go to their houses, and they all departed.

7. It is, therefore, common ground that the Sub Inspector prohibited the accused from playing music or advancing. In the written statement however, the accused did not, in express terms, admit that the Sub-Inspector also called on the assembly to disperse, nor did they clearly deny that the procession had been ordered to disperse.

8. The District Magistrate was of opinion that the order to stop the music and not to advance was an order which the Sub-Inspector was legally empowered to make under Section 149 of the Code of Criminal Procedure and that therefore its disobedience was an offence under Section 188 of the Indian Penal Code. The learned Sessions Judge agreed with this view of the law, but came to the conclusion that the conduct of the accused amounted to a mere refusal to obey and not an actual and final failure to comply. He therefore acquitted them.

9. On the evidence it is impossible to hold that there was no disobedience of the order to stop the music and not to advance. The accused themselves were not the drummers. They took over the drum and advanced a few steps while beating the drum. They made it quite clear that they ware determined not to obey the order until force was used. They did disobey it, though they offered no resistance when force was attempted. There cannot be the least doubt that they meant to defy the Sub-Inspector's order, and meant to flout him. Even if it be conceded that the accused never intended to persist in their disobedience after force was used, I have no hesitation in saying that they did disobey the order inasmuch as they did advance a law steps and did continue to beat the drum though ordered not to do so.

10. The accused however cannot be held to have committed an offence under Section 188 of the Indian Penal Code unless it be found that the order to abstain from playing the music or advancing was (a) promulgated by a public servant to the knowledge of the accused, (b) that that public servant was legally empowered to promulgate such an order, and (c) its disobedience caused or tended to cause obstruction, annoyance or injury, or risk of it, to a person lawfully employed, or danger to human life, health or safety, or tended to cause a riot or affray.

11. The Sub-Inspector was a public servant and the accused had undoubtedly heard his order. As the order was announced publicly and was addressed to the crowd generally as well as to the accused in particular, it certainly had been 'promulgated,' and it is not necessary that such an order should be in writing.

12. I am also of opinion that the disobedience of the accused did cause, to say the least, annoyance the Sub-Inspector lawfully employed to prevent a breach of the peace. It also did tend to cause a riot as there was no knowing to what extent the procession might not have been incited to go by the open defiance of the accused.

13. But it is necessary for the prosecution to establish that the Sub-Inspector was 'lawfully empowered to promulgate such an order.' The contention on behalf of the Crown is that under Section 149, Criminal Procedure Code, every police officer can 'interpose' for the purpose of preventing the commission of a cognizable offence' It is urged that the word 'interpose' is wide enough to cover not only all acts done by him but also all orders given by him. I am unable to give to this word any such wide meaning. Interpose connotes the idea of actively intervening and not merely a prohibition by word of mouth. I am not saying that a police officer would not be justified in asking people to do or not to do a thing. Under certain circumstances even a private citizen may be justified in making such requests. But to be justified in directing a certain act to be done or not to be done is one thing, and to be legally empowered to order its commission or omission, with the consequence of the disobedience being punishable under Section 188 of the Indian Penal Code is quite another.

14. To hold that under that Section 149, Criminal Procedure Code, a police officer can pass any oral order he thinks desirable would be to hold that his word is law. If his powers were to be so wide, it would be unnecessary for the Magistrate or the police to take any precautionary measures in advance, it would be quite sufficient to send down a Sub-Inspector to the scene and let him pass all sorts of sweeping orders, disobedience of which will entail conviction. Such a method, if sanctioned, would deprive the persons concerned of all opportunity to appeal to higher authorities, and they would have to submit to such orders at the peril of a prosecution. I am of opinion that such wide powers vested in a police officer would interfere unreasonably with the ordinary liberty of private citizens and could not have been contemplated to be within the scope of Section 149, Criminal Procedure Code.

15. It is still more difficult to hold that a police officer can pass orders not only against the persons from whom the commission of an offence is apprehended but also against would be victims. By considering extreme Cases it can be seen at once to what consequences a contrary view is likely to lead. Suppose a dacoit aims a gun at the victim of the dacoity, a police officer instead of rushing at the dacoit and preventing him from shooting the victim, orders the victim to run away the victim does not move, the dacoit shoots but fortunately misses the shot. Is the victim guilty of the offence of disobeying the order to run away promulgated by a public servant lawfully empowered to promulgate such an order for the purpose of preventing his murder? Or, take the case of a police officer who, apprehending that certain robbers are coming to loot a Bank, orders the manager to close the Bank, the manager does not do so. Is he guilty of the offence of disobeying the order

16. Of course, a police officer is empowered to do many things specifically mentioned in the Code. For instance, under Section 42 he may demand aid in the prevention or suppression of a breach of the peace; or under Section 151 he may arrest a person designing to commit an offence; he may under Section 127 command an assembly of five or more persons, likely to cause a disturbance of the public peace, to disperse; and if it does not disperse he may under Section 128, proceed to disperse it by force, and he may under Section 149 'interpose' for the purpose of preventing an offence, or under Section 152, to prevent an injury to property. Persons who refuse to disperse or who resist him (and not merely refuse to obey his oral orders) in the discharge of his legal duty, are liable to punishment. But he cannot shirk his duty of interposing effectively by being content with an oral order not to do a certain act and then make the parsons ordered, liable for disobedience of his orders.

17. It has next been suggested by the learned Assistant Government Advocate that the officer might have been empowered to pass the order under the Police Act. Sections 30, 30-A and 31 have been referred to. One may say at once that the Sub-Inspector nowhere suggested that he purported to act under any of the provisions of the Police Act. He frankly admitted that he acted under Section 149, Criminal Procedure Code. Further, Section 30 does not apply to a Sub-Inspector. Section 30(A) is inapplicable as there had never been any license previously insisted upon and no conditions were therefore violated. The provisions of Sections 30 and 30(A), if they had been resorted to, would have provided ample powers for the police (including the Sub-Inspector) to interfere and stop the procession. But that was not done. As to Section 31 it was never suggested at the trial that when the Sub-Inspector ordered the music to be stopped and the procession not to advance, he was trying to keep order on the public road or preventing an obstruction, Section 31 therefore can have no application; nor have the accused been prosecuted under Section 32 of the Police Act.

18. I have therefore come to the conclusion that the Sub-Inspector was not legally empowered to promulgate the order that the music should be stopped or that the procession should not advance. The accused ware accordingly not guilty of any offence under Section 188 of the Indian Penal Code.

19. I have however already said that they were prosecuted under Section 151 of the Indian; Penal Code also. The-District Magistrate-was inclined to believe the prosecution evidence that the Sub-Inspector did tell the public to disperse. He considered this to be 'most probable' and emphasised that 'all the prosecution witnesses-say he did.' Ha however considered that as Sections 151 and 188 ware practically equal in gravity it was unnecessary to apply both, particularly as, in his opinion Section 183, both as regards its explanation and its illustration seemed more directly applicable. He therefore convicted the accused under Section 188 only. the learned Sessions Judge did not at all direct his attention to the offence under Section 151 of the Indian Penal Code.

20. It cannot be doubted that under Section 127, Criminal Procedure Code, the Sub-Inspector was legally empowered to order the assembly to disperse when he was convinced that it was likely to cause a disturbance of the public peace. There can be no doubt that the Sub-Inspector was fully justified in his apprehension that if the procession advanced while playing the music there would be a riot. It was altogether immaterial whose action would provoke it. Having regard to the fact; that feelings were running high, there would most probably have been a free fight on both sides. Under Section 151 of the Indian Penal Code, whoever knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace after such assembly has been lawfully ordered to disperse, is liable to punishment.

21. There can be no doubt that the accused as wall as the other members of the profession did not disperse for a considerably long time. If, therefore, the Sub-Inspector did actually order them to disperse, they would be guilty under Section 151.

22. As the accused in their written statement did not expressly admit that the Sub-Inspector had given an order that the assembly should disperse, and as they actually produced a witness named Chand Singh to say that he never heard the Darogha ordering the crowd to disperse, it is necessary to consider what other evidence there is be corroborate the Sub Inspector's version.

23. Jagannath Singh, Brahmin, who lives near the mosque in question, has stated that the Darogha did address the assembly and told the people to disperse but they did not do so, and that it was when the Darogha said to the head constable 'call the guard, order them to shoot' that the crowd dispersed.

24. Similarly, Durga Prasad, another witness, has stated that the Darogha said disperse this assembly or there will be a 'riot' and that in spite of what the Darogha had said the band want on playing and the people did not disperse, and the two accused also were there.

25. A third witness Musawwir Husain also says that the people did not retire until the Darogha produced his pistol and that they dispersed only after he said that ho would call on a guard to fire.

26. Another witness, Abdul Karim, says that eventually the Darogha threatened fire. To his previous orders no one had paid any notice, either to the order to disperse or to stop the music.

27. Thus all the prosecution witnesses corroborate the Sub-Inspector's statement that he did order the crowd to disperse. It is also natural to suppose that when he found that the leaders of the procession were prepared to defy him and disobey his orders, he would have ordered them to disperse. We have already noted that in the joint written statement filed by the accused there was no express denial of this statement of the Sub-Inspector the other defence witnesses also do not expressly say that no order for dispersing was given. It is possible that Chand Singh might not have heard this order of the Sub-Inspector. Ha however admits that the discussion between the Darogha.-and the accused went on for nearly half an hour and that the crowd dispersed at the bidding of the accused after they had put down their musical instruments.

28. On the evidence, therefore, I am fully satisfied that the Sub-Inspector had ordered the accused and the procession to disperse, and that in spite of that order the accused did continue in the said assembly and did not disperse for a long time. They ware therefore guilty of an offence-under Section 151 of the Indian Penal Code the whole evidence has been read and discussed before us, and we are justified in convicting them of this offence.

29. At the same time, I am inclined to believe that the accused persons did not really intend to disobey the Sub-Inspector finally, that is to say, did not intend to-force their way forward or to persist in their disobedience even after a show of force. Nor did they in any way intend to physically resist the Sub Inspector in the discharge of his duty. In view of these circumstances, I am inclined to take a lenient view so far as the question of Sentence is concerned. I may however add that the accused were given an opportunity to apologize and express their regret, but by a written application they declined to do so and asked there to be 'judged in its true light.'

30. We accordingly allow this appeal and setting aside the acquittal: of the accused persons convict them under Section 151 of the Indian Penal Code and sentence them each to one month's simple imprisonment to date from 21st of August 1924 and to pay a fine of Rs. 500 each or six weeks' simple imprisonment in lieu thereof. Let them be taken to the District Magistrate who will make arrangements for their custody and transit to Jhansi.