ORDER
Raj Kishore Prasad, J.
1. There is a reference, under Section 438 of the Code of Criminal Procedure, hereinafter referred to as the Code By the 1st Additional Sessions Judge. Hazaribagh, recommending that the conviction and sentence passed on Sarsibala Dawan, under Section 32 (wrongly mentioned in the order of the Magistrate as Section 30) of the police Act, 1861, (Act 5 of 1861), which for the sake of brevity will be referred to as the ‘the Act’, be quashed, on the ground that she herself had not pleaded guilty, but, one Anrupa Chatterjee, another accused, pleaded guilty on her behalf and on her plea she was convicted.
2. There is also an application in revision under Sections 435 and 439 of the Code, originally filed on behalf of 53 persons, as their application to the learned Additional Sessions Judge for a reference to this Court had been refused, but it was subsequently withdrawn on behalf of the petitioners 18 to 53, and, a rule was issued and the revisional application admitted only in respect of 17 persons, namely, petitioners 1 to 17, who were the remaining women accused, and, who also pleaded guilty and were similarly convicted under Section 32 of the Act and each sentenced to pay a fine of Rs. 10/-, and, in default to one week’s simple imprisonment.
3. As both the cases arise out of the same proceeding and some common questions of law arise, they have been heard together and, therefore, this order will govern both of them.
4. The facts giving rise to the prosecution of the eighteen women accused and the male accused, under Section 32 of the Act, are these :
5. On 16-7-1960, the following report for the prosecution, of the women accused, who are before this Court, and, of the male accused with whom we are not concerned here, after their prosecution under Section 32, again wrongly mentioned, as Section 30, of the Act, had been sanctioned, was sent by the Officer-in-charge, Ramgarh Police station, to the Sub-divisional Magistrate, Hazaribagh :
“This morning, 16-7-60 at about 9/30 A.M. while myself along with Inspector Shri S.B. Prosad of Ramgarh Circle, Inspector Shri K.P. Dwivedi of Railway Police, Dhanbad, J. S. I. Shri B. N. Banerji of Ramgarh P. S. and a few constables were patrolling in Pochra and Barkakana colony I found a procession consisting of 60 to 70 males and females, whose names are mentioned in the attached list, parading on the Ramgarh-Bhurkunda Road in an orderly manner shouting slogans, viz. Inkalab Zindabad, Hamari Mang Puri Ho, Barkakana Mazdoor ek Ho, Rail Chalana Band Ho, Rail Mazdoor Ek Ho, etc. The processionists were proceeding towards the west and they were arrested on Ramgarh-Bhurkunda Road near Barkakana Railway Hospital. One of the processionists Shri B. Choudhry also used a mouthpiece for shouting slogans which was also seized.
A promulgation was made this morning at 8 a.m. banning processions, meetings, assemblage of 5 or more persons, carrying of lathis or any other weapons and speeches in Ramgarh P.S. elaka through, publicity Van led by Driver Yakub Khan & publicity Officer Anandi Shastri, District Publicity Officer. In spite of this promulgation, the processionists in violation of the provisions of Section 30 of the Police Act took out an unlicenced and unauthorised procession in the public place causing annoyance to the general public.
I, therefore, submit this report for their prosecution under Section 30 of the Police Act (Act V of 1861).”
6. All of them were produced on 16-7-1960 before Mr. B.P. Shrivastava, Magistrate, 1st Class, Hazaribagh, who took cognizance of the offence the Same day. One female accused, Sarsibala Dawan, in respect of whom the reference, under consideration, has been made, had suddenly fallen ill, and, therefore, she did not appear personally in Court but she was represented by another accused, Anrupa Chatterji, who claimed to represent her. All the women accused, including Amupa Chatterjee, on her own behalf as also on behalf of Sarsibala Dawan, pleaded guilty, to the particulars of the offence when explained and read over to them. All of them were examined under Section 342 of the Code on the same day. The statement of Sarsibala Dawan under Section 342 of the Code was also recorded on the statement of Anrupa Chatterjee who purported to represent her, and, Anrupa Chatterjee signed it for her. The Magistrate held that the accused had not shown sufficient cause why they should not be convicted, and, therefore, he found all the women accused guilty under Section 32 of the Act, and, convicted and sentenced them to pay a fine of Rs. 10/- each, and, in default each to suffer one week’s simple imprisonment.
7. Against their convictions and sentences, all the women accused moved the learned Sessions Judge, Hazaribagh but, except Sarisibala Dawan, others were unsuccessful, and therefore, they moved this Court with the result stated earlier.
Criminal Reference 69 of 1961.
8. In order to answer the reference, it is
necessary to read some sections of the Code, which
are material for deciding it, and, for ascertaining
the scheme of the Code on the question under
consideration.
9. Sub-section (1), of Section 205 of the Code, deals with the power of a Magistrate to dispense with the personal attendance of accused, it is in these terms:
“205 (1). Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance cf the accused and permit him to appear by his pleader.”
10. The general principle of the Code is that an accused person cannot be proceeded against ex parte except in cases provided by the Code itself. Section 205 is one such exception to this general rule and it enacts that a Magistrate may dispense with the personal attendance of the accused in a particular class of cases, namely, those in which he issues a summons. Section 205, therefore, applies only to cases in which the Magistrate has issued a summons, in the first instance, at the commencement of the proceeding before him. Section 205 applies only to Magistrate, and it deals with the initial appearance of the accused before a Magistrate.
A Magistrate therefore, except in a case in which a summons is issued, in the first instance, as envisaged by Sub-section (1) of Section 205, has no jurisdiction to try a case in the absence of the accused. Section 353, or Section 540-A, however, deals with the presence of the accused during the trial of the case or during enquiry with which we are not concerned here. Section 205(1), as such, gives a discretion to the Magistrate to dispense, with the personal attendance of the accused, if he sees reason, to do so, and to permit him to appear by his pleader. The word “pleader” has been defined in Clause (r) of Sub-section (1) of Section 4 of the Code, and, it includes, inter alia, also “any other person appointed with the permission of the Court to act in such proceeding”.
11. Chapter XX, which consists of Sections 241 to 250 of the Code, deals with the trial of summons cases by Magistrates. Section 242 of the said Chapter lays down that when the accused appears or is, brought before the Magistrate, the particulars of the offence of which ho is accused shall be stated to him, and, he shall bo asked if lie has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charges Section 243, then, provides that if the accused admits that he has committed the offence of which ho is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
Section 353 says that, except as otherwise expressly provided, all evidence taken, under the different Chapters of the Code mentioned therein, shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. Chapter XX, in which Sections 242 find 243 occur, and, with which we are concerned, here, is mentioned in Section 353 just mentioned. Sub-section (2) of Section 366 requires that the accused shall, if in custody, be brought up, or, if not in custody be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader.
12. Present Sub-section (1) of Section 540-A, which has been substituted by Act 26 of 1955 for the former Sub-section (1) also makes provision for inquiries and trial being held in the absence of accused in certain cases. Section 540A deals also with a case where the accused may be or is represented by a pleader.
13. On the above scheme of the Code, regarding trial of summons-cases by Magistrates, the governing principles, which emerge therefrom, so far as material for answering the reference in question are these;
14. As soon as cognizance is taken of a case, the Magistrate has to issue summons for the attendance of the accused. The accused need not necessarily appear in person. But the accused must first be served with summons and he must apply for exemption from personal appearance. It is open to the accused to appoint a pleader or to appoint any other person to appear in his stead, and, plead and do any other acts on his behalf in the case against him; and, it may equally be open to the Court to permit such person, other than a pleader to represent the accused. But there should be clearly on “record something to show, first, that the person who represents the accused has been duly appointed by him, and, secondly, that the Court has given the requisite permission to such person for his appearance in place of the accused and to act in such proceeding on his behalf.
It is only when such a person has been authorised by the accused to represent him and further when such a person has been permitted by the Magistrate to represent the said accused, that such person can plead guilty, on behalf of the accused concerned, and then on such plea of guilty the said accused can be convicted. Unless these two conditions precedent, as postulated by Section 205 (1) of the Code, are satisfied and they co-exist, no one, except the accused personally, has the right to plead guilty as contemplated by Section 243 of the Code. The Magistrate, therefore, cannot convict an accused person under Section 243 of the Code on a plea of guilty when the accused is not personally present unless made in the manner stated above.
15. Where, as here, one accused, Out of others, who are produced before the Magistrate, does not appear, due to sudden illness, he can appoint a private person or even a co-accused to appear in his stead, under Section 4 (1) (r) of the Code, read with Section 205 (1) of the Code, and then it is equally open to such Magistrate to permit such private person or such co-accused to represent the absentee accused. It would be difficult to see any real and substantial ground for limiting the words “any other person”, in Section 4 (1) (r), so as to exclude a co-accused that may be duly appointed. The definition of the term “pleader” in Section 4 (1) (r) is used in a wide sense. The words ‘any other person” used I in Section 4(1) (r), are wide enough to embrace even one of the other co-accused, like any pure outsider. The only essential requirement of Section 205 (1) is that there should be clearly on record something, such as, a power of attorney, or, a letter of authority, or, the like, to show that the private person, or, the co-accused, who represents or purports to represent the accused, has been duly appointed by him, just as an ordinary pleader has to file a vakalatnama.
The Court should also note on the record that he has given the requisite permission to such person to represent the accused, and should not leave the matter to mere implication or speculation. Where there is no power of attorney or a letter of authority or the like to show that a person has been appointed by an accused person to appear and plead on his behalf, the Court is not entitled to accept a plea of guilty put forward by such a person and to convict the accused upon such a plea. Only when the Court has allowed an accused person to appear by a pleader or by “any other person”, as envisaged by Section 4 (1) (r) of the Code, it must be taken that such appearance involves the performance of all acts that devolve upon the accused in the course of the trial, unless, of course, the Magistrate thinks it necessary or desirable that the accused himself should be present for any particular purpose. Under Sections 242 and 243 of the Code, therefore, the pleader of the accused, or, any other person, appointed by the accused to represent him and permitted by the Court may makes the necessary answers and plead guilty on his behalf.
16. The above view is Supported by Derab Shah Bomanji Dubash v Emperor ILR 50 Born 250 : (AIR 1920 Bom 218). In Ma Kin v. Emperor, 26 Cri LJ 845 : AIR 1924 Rang 383, Baguloy J. of the Rangoon High Court, sitting singly, set aside the conviction and sentence of Ma Kin, the petitioner before him, on the ground that she never appeared at the trial and there was nothing to show that under Section 205 of the Code, the Magistrate dispensed with her presence and allowed a pleader to appear for her. In that case, in the letter of reference, the Sessions Judge had also said, as one of his grounds for quashing the conviction of Ma Kin, that he knew of no provision of the Code which allowed one accused person to appear for another. But His Lordship, Baguley J., expressed no opinion on this question. No decision has been brought to my notice by any of the learned counsel for the parties to show that a co-accused cannot be authorised by another co-accused to represent him or her in a trial before a Magistrate with his permission.
17. In the light of the above principles, let us now examine the facts of the present case and see if the conviction of Sarsibala Dawan based on the plea of guilty made by her co-accused, Anrupa Chatterjee, can be sustained, and, if the reference made is justified.
18. In the instant case, admittedly, Sarsibala Dawan was never produced before the Magistrate nor did she herself appear before him, although the other accused were produced before him. As she suddenly fell ill, she asked one of her co-accused, Anrupa Chatterji, to represent her, as appears from the order of July 16, 1960, of the learned Magistrate. She, therefore, had no opportunity to, nor did she ever in fact, make any application for exemption of her appearance, and, for being permitted to be represented by her co-accused, above mentioned. There is no indication whatsoever in the record to show that Anrupa Chatterjee was, as a matter of fact, authorised by Sarsibala Dawan to represent her before the Magistrate. There is no power of attorney, or, any letter of authority, or the like, to show that Anrupa Chatterji, her co-accused, had been appointed by the accused, Sarsibala Dawan, to appear for her and represent her to act on her behalf.
There is nothing to show on the record either that the Magistrate permitted Anrupa Chatterji to represent Sarsibala Dawan. There is, therefore, nothing on the record to show either. When, therefore Sarsibala Pawan never appeared before the Magistrate at the trial and there was nothing to show that, under Section 205 of the Code, the Magistrate dispensed with her presence and allowed her co-accused, Anrupa Chatterji, to appear for her, Sarsibala Dawan could not legally bo convicted on the plea of guilty made not by her but her co-accused, who had never been authorised by her and permitted by the Court to appear for her. In such a situation, therefore, the Magistrate was not entitled to convict the accused Sarsibala Pawan on the plea of guilty made by the co-accused, Anrupa Chatterji. In this view of the matter, it is manifest that Sarsibala Dawan has wrongly been convicted, and, as such, the conviction and sentence passed on her must be set aside. The reference, accordingly, is accepted.
Criminal Revision 927 of 1961.
19. As regards the criminal revision, on behalf of the remaining women accused, petitioners 1 to 17, it appears that their convictions are also illegal and must be set aside due to the irrregular and defective manner in which the prosecution of these women accused was conducted before the Magistrate and also due to certain illegalities of procedure committed by the Magistrate in their trial.
20. To begin with, it appears that the procedure laid down in Section 243 of the Code was not complied with. In the order sheet of July 16, 1960, under revision, no doubt, it is mentioned that : “All the women accused pleaded guilty to the particulars of the offence when explained and read over to them”, and, thereby, the Magistrate meant to indicate that the provision of Section 242 of the Code was complied with; but, in my opinion, that is not enough. Section 242, as stated earlier a]so, no doubt, requires that when the accused appears or is brought before the Magistrate, the particulars of the offence of which ho is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but, Section 243 provides that if the accused admits, as here, that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
The provisions of Section 343 of the Code are mandatory and the record of the case must show that Section 243 was complied with. In the instant case, there is no indication in the record, anywhere, except what is stated in the order sheet read above, that as required by Section 243 of the Code, the alleged admission of any of the accused that she had committed the offence of which she is accused, is anywhere recorded at all. It is clear, therefore, that Section 243 of the Code was not complied with, and, for that reason, there is no recorded admission of any of the accused that she committed the offence of which she was accused, as required by Section 249 of the Code.
21. If, however, the examinations of the accused, which purported to be recorded under Section 342 of the Code, he taken to be the said recorded admission of the offence by the several accused, within the meaning of Section 243 of the Code, then also there is no such admission of any offence as contemplated by Section 243 of the Code. The admission that the accused was in the procession on the material date and time did not amount to any admission of any offence, because the procession, on the Police report itself, was proceeding in “an orderly manner”, and, therefore, to be a member of such an orderly procession was per se no offence. The iact that the said procession was banned earlier, even assuming it could be so banned by the Police under Section 30 of the Act, which really constituted the offence, and which was the gravamen of the charge against them, should have been put to the accused, but it was not done.
As held by Agarwala C. J., sitting singly, in Subba Rao v. The King, AIR 1951 Pat 405, it is not sufficient for a conviction that the accused should admit the facts which the prosecution alleges, unless the facts alleged amount to an offence. Here, however, all the facts alleged, and, even the real facts, which according to the prosecution constituted the offence, were never put to any accused. These recorded examinations of the accused, therefore, were no compliance with the mandatory provisions of Section 243 of the Code. In my opinion, therefore, in these circumstances, for the foregoing reasons, it must be held that the mandatory provisions of Section 243 of the Code were not complied with, and therefore, there was no plea of guilty of any accused. as required by Section 243 of the Code, on which they could be convicted.
22. Furthermore, it appears that when these women accused were produced before the Magistrate, he purported to examine each of them under Section 342 of the Code, but it does not appear from their examinations under Section 342 of the Code that they were given any opportunity to explain the real incriminating circumstances appearing against them. Each of the petitioners was simply asked as to whether On 16-7-1960 at about 9-30 a.m. she was in the procession which was taken out on Ramgarh-Bhurkunda Road, to which each of the petitioners replied in the affirmative. The mistake that his been committed by the learned Magistrate, as stated before also, apears to be that he assumed that taking out a procession is per se an offence under the Police Act. That, however, is not so. These women accused were charged for being a member of the procession which had been banned earlier. If such a procession had not been banned, assuming that such an order could be passed by the police under Section 30 (1) of the Act, the petitioners could not have committed any offence for having joined it as according to the Police report itself, the petitioners were parading on the said read “in an orderly manner”.
The petitioners were alleged to have taken out the procession in violation of the promulgation made earlier under the Act banning such procession. In my opinion, the above facts, which according to the prosecution constituted the offence under Section 32 of the Act, and, which were the real charges against them, should have been specifically put to each of them and each should have been questioned with regard to them, but none were questioned and given an opportunity to enable them to explain these circumstances against them. The accused, in my opinion, should have been questioned with regard to the alleged offence in their alleged examinations under Section 342 of the Code, otherwise their examinations under Section 342 of the Code were meaningless.
23. The question, however, is, if, on the foregoing facts, Section 342 has been complied with, and if, by the omission to do so, the petitioners have in any way been prejudiced or there has been any miscarriage of justice by the way each of the accused has been questioned under Section 342 of the Code,
24. It is a well-settled rule that as to what is or is not a full compliance with the provisions of Section 342 of the Code must depend upon the facts and circumstances of each particular case. In the instant case, on the facts stated above, I
am not satisfied that Section 342 of the Code has at all been complied with and by its non-compliance, in my opinion, the petitioners have been seriously prejudiced, and, there has been an apparent miscarriage of justice, in that, the accused got no opportunity to say that on all the facts alleged by the prosecution they had in law committed no offence. It must be borne in mind that I the accused, placed as ho is, must be given full liberty by the Magistrate to explain all the incriminating circumstances which appear against him and which the Magistrate is likely to use in support of a conviction, and, therefore, if he fails to do so as here, that may, on the facts of the particular case, cause prejudice to the accused vitiating the trial.
25. Section 32 of the Act is the penal section, and, it says that disobedience of the order issued under Sections 30 to 31 shall be an offence and the person opposing or not obeying the orders under those sections, shall be liable, on conviction before a Magistrate, to a fine not exceeding two hundred rupees. In the examination of the petitioners under Section 342, Code of Criminal procedure, it was not put to any of them at all that a promulgation had been made earlier banning the procession and that as she had disobeyed the said promulgation, she had committed an offence under Section 32 of the Act. It is the right of every citizen to use the public thoroughfares, provided that be commits no offence in doing so, and, therefore, the taking out of a procession is not in itself an offence.
26. For these reasons, in my opinion, there has been complete disregard and non-compliance of Section 842 of the Code also, which has seriously prejudiced the petitioners and the infringement of the mandatory provisions of Section 342 of the Code has Caused a failure of justice, in the instant case, vitiating the trial of these women accused.
27. The above two contentions of Mr. Braj Kishore Prasacf No. II, appearing for the petitioners, are well-founded, and, therefore, must be given effect to.
28. Lastly, it was contended, and very strongly urged, by Mr. Braj Kishore Prasad no. iI that Sub-section (1) of Section 30 of the Act does not authorise, the Police authorities to ban any procession, and, therefore, the alleged promulgation made by the Police banning the procession, as mentioned in the Police report reproduced earlier in extenso, was ultra vires, and, as such, its disobedience was in the eye of law no offence. It may be mentioned, at the very outset, that the contention, put forward on behalf of the petitioners, that the above mentioned promulgation by the Police must be deemed to have been made under Sub-section (1) of Section 30 of the Act was not disputed and challenged by Mr. Baidyanath Prasad No. II, who appeared for the State opposite party.
29. The sole point, for determination, therefore, is whether the Police, acting under Section 30 (1) of the ACT, could issue thereunder a promulgation banning a procession?
30. Sub-section (1) of Section 30 of the Act is to the following effect:
“30(1). The District Superintendent or Assistant District Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times at which, such processions may pass.”
31. On the plain language of Sub-section (1) of Section 30 of the Act, it is manifest that it gives the Police power to control and regulate processions. In other words, the power conferred by Section 30 (1) of the Act on the Police is only to regulate and direct the conduct of public assemblies and processions on the public roads, and to prescribe the routes by which, and the times at which, such processions may pass.
32. In order that this power may be, exercised, the Act, in certain circumstances, authorises the Police to require persons to apply for licenses. The object of this is that adequate arrangements for control may be made in time. Sub-sectopm (2) of Section 30, therefore, provides that when the District Superintendent or Assistant District Superintendent of Police is satisfied that an assembly or procession is, in the judgment of the Magistrate of the District likely to cause a breach of the peace, he may then issue a notice upon the person convening or collecting the assembly or directing or promoting the procession to apply for license. Sub-section (3) of Section 30, then, gives the Police power to issue a licence and define the conditions in which a procession shall be permitted to take place.
33. Section 30A empowers the police, as also a Magistrate, to stop any procession which violates the conditions of the licence issued under Sub-section (3) of Section 30. Section 31 gives right to the Police to keep order on public roads and to prevent obstructions on the occasion of assemblies and processions on the public roads, etc, Section 32, then, provides the penalty for opposing or not obeying the orders issued under Sections 30, 30-A and 31 of the Act.
34. The object of Sections 30, 30A, 31 and 32 is that the public peace and order should be kept, and, orders passed under these sections arenot for the purpose of defining the right of persons or of deciding who is in the right or who is in the wrong in the case of any dispute in a public place. The duty of keeping order being cast upon the Police, they are prima facie the best judges of what orders are necessary for that purpose.
35. On the above scheme of the Act, it is manifest that Sub-section (1) of Section 30 of the Act gives the Police power to control and regulate processions; but the Police have no power, thereunder, to forbid or to ban the procession. The power to control docs not include the power to Forbid. This view is supported by two Bench decisions, one, of this Court in Sitaram Das v. King Emperor, ILR 4 pat 795 : AIR 1926 pat 173, and, the other, of the Allahabad High Court in Qasim Raza v. Emperor, AIR 1935 All 657, in which the just mentioned Patna case was relied upon.
36. It is not necessary to decide, in the present case, whether the Police could issue such a promulgation banning a procession, under subsection (2) of Section 30 Or under any other section of the Act, and, if so, under what circumstances, as these questions, on the arguments at the Bar, do not arise here, and weve net raised, and, therefore, I am not called upon to express my opinion on them, I have only to interpret Sub-section (1) of Section 30 strictly, and I consider that it is impossible to read into it any authority in the Police for absolutely revising permission to take out a procession and for banning it.
37. Here, the Police authorities, therefore, had no power under Sub-section (1) of Section 30 of the Act, to ban the procession, and, as such, the promulgation banning the procession, purported to have been made under Sub-section (1) of Section 30 of the Act, was without jurisdiction.
38. In this view of the matter, if is manifestly clear that the alleged promulgation banning the procession by the Police was ultra vires of their powers under Section 30 (1) of the Act, If therefore, the promulgation, banning the procession, was ultra vires, the women petitioners committed no offence by violating it. This view is supported by a Bench decision of this Court in Hamkhelawan v. The King, AIR 1951 Pat 418.
39. For these reasons, owing to the irregular and defective manner in which the prosecution of these women petitioners was conducted before the learned Magistrate, I must accept their application, and, accordingly, I hold that the convictions of the 17 women petitioners and the sentences of fines imposed upon them are illegal and cannot stand.
40. The net result, therefore, is that the reference is accepted and the criminal revision is also allowed and the rule issued therein is made absolute. The convictions and sentences of the 18 women accused, namely, of petitioners 1 to 17 in the criminal revision, as also of Sarsibala Dawan in the criminal reference, are set aside and, the fines, if paid, shall be refunded to each of them.
41. As the case against the male accused is
pending, this judgment will not affect their trial.