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1932 (7) TMI 13

..... ld that we possess powers of superintendence. But the exercise of a power of superintendence is not the same thing as the hearing of an appeal. We have, I think, a discretion to revise or Bet aside any conviction under our powers of superintendence; but we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. It is suggested in this case that the order was illegal for this reason. The order was originally made by the District Magistrate of Sholapur, and it is an order which in terms has to be carried out within the District of Sholapur. But the order was served on the accused when he was in jail at Bijapur. The rights of the District Magistrate arise in this way. Section 57 of the Ordinance authorises the Local Government to invest the District Magistrate with the powers of the Local Government under Sub-section of Section 4, and in pursuance of that authority the Local Government did on January 5, 1932, publish a notification stating that in exercise of the powers conferred by Sub-section (1) of a, 57 of the Emergency Powers Ordinance, 1932 (II of 1932), the Governor in k Council hereby invests all District Magistrat .....

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..... e. I think that our powers of superintendence are certainly wide enough to enable us to alter a sentence. But, on the other hand, we have to remember that it is for the trial Court to inflict the sentence, and we are not justified in altering the sentence which the Magistrate has thought fit to inflict merely because we may think that we our- selves would have inflicted a different sentence, We have got to be satisfied that the Magistrate has erred on some point of principle. Apart from actual illegality in sentence, if one had a case in which the accused admitted breaking an order to report himself to the police, but said that his failure to report was due to an accident or was inadvertent, and that he had no intention of disobeying the order in future, and one found in such a case that the Magistrate had inflicted the maximum sentence, I think we should be bound to say that the Magistrate had not exercised, as he was bound to do, a discretion in the matter, and we could interfere. But putting it generally, I think we are in great difficulty in cases of this sort, because we have really no standard by which to measure the sentence. Where in the administration of the ordinary crimi .....

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..... ion to form an opinion than this Court, which does not know the local conditions. The fact that the accused thought it humiliating to obey the order was not a matter, as it seems to me, to which the Magistrate could attach any importance, If an order is made by a competent authority, it must be obeyed, and it can be no excuse for a person to say that he considers it a humiliation to obey it It might very well be that a man accustomed in his own country to go about armed would consider it humiliating if compelled to go unarmed. Nevertheless he would have to comply with an order which required him to go unarmed. Having regard to all the facts, there is, in my opinion, no ground, consistent with the principles on which this Court acts in revising sentences, which can justify us in interfering with this sentence. 3. There is one comment on the judgment of the learned Magistrate which is, I think, legitimate, and that is that he does refer in one place to about thirty youths having conducted themselves in a way in which he thinks they would not have done but for the example of such people as the accused. I think he was wrong in referring to a matter as one of fact which had not been pro .....

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..... this can be said to be so. It might, I think, be necessary to regulate the movements of a person within wider limits than a single district, or to regulate the user of property situated in more than one. And yet in an emergency it might not be possible to obtain the concurrence of several District Magistrates in time to avert the danger. I think it possible, therefore, that the notification may mean exactly what it says. But apart from that point, even if one is to apply the ordinary Criminal Procedure Code rule as to territorial jurisdiction, I am of opinion that the District Magistrate, Sholapur, was the proper authority to make the order which was made in this case, The jurisdiction of Courts under the Criminal Procedure Code ordinarily depends not upon the place where the accused happens to be at the time the order is made, but on the cause of action, if I may use a convenient expression which is more commonly used in connection with civil proceedings. We have to note the language of Section 4. before making an order the Local Government or the District Magistrate must be satisfied that there are reasonable grounds for believing that any person has acted, is acting, or is abou .....

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..... rate to whom the powers of the Local Government are delegated, is in the best position to decide what steps are necessary to preserve the peace, and it seems obvious that in certain circumstances ah order to a person considered to be of a dangerous, character to report to the police morning and evening may be a very effective method of doing so. It is to be noted that one of the conditions imposed in this case was that the accused should not leave Pandharpur. I think there is no real substance in this point either. 3. Another argument put forward by Mr. Thakor is of a more fundamental character, but I think even less tenable. He maintained that it is not enough for the prosecution to prove that an order has been made under the power given by the Ordinance, and that the order has been disobeyed, but that ifc must farther prove the justification for the order. This must be dona, if necessary fund in many cases it could only be done,) by calling the responsible authority as a witness. How the District Magistrate is to find time to deal with an emergency if he is being continually summoned to Court to justify his action, one does not know. It would obviously be necessary to find some o .....

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..... y they are also novel. So there are few precedents. It is not suggested that the sentence in this case was but of proportion to those generally imposed in similar cases. Mr. Thakor pointed out that the accused is only alleged to have broken one of the seven conditions named in the order, that of reporting to the police. But for anything we know to the contrary that may have been a moat important condition, It must be remembered that the Ordinance, which we have to take to be a necessary evil, is not likely to serve its purpose if it is not enforced. Deliberate disobedience is not, therefore, a trivial matter, and further it may be necessary, as the lower Courts thought it was necessary in thifi case, to make an example of people of influence who defy the Ordinance, lest defiance become wide-spread. It seems to me to be no answer to say that all persons disobeying the Ordinance might be imprisoned for six months, and that this might furnish a standard of punishment. There are obvious limits to the capacity of Government to keep offenders in confinement, especially in a time of emergency. The suggestion that evidence ought to have been placed before the Court as to the consequences o .....

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..... istrate is such only with reference to his district, and that his powers as a District Magistrate are also limited to his district. He can give orders only to persons within his district, because only they are subject to his jurisdiction. The power of a Court to serve a summons outside the local limits of a Court's jurisdiction furnishes no real parallel to the present case; and in any case that power had to be expressly conferred by the Code, while the Ordinance is silent on the point before us. 3. But in the present case the order of the District Magistrate, Sholapur, was with reference to a person permanently residing within his district, and it was to be obeyed within that district. The only special feature is that it was served on the accused when he was at Bijapur. If as a matter of fact the accused had not returned to Sholapur, or if when he returned to that district he had taken up the position that the order served on him at Bijapur was not a legal order within the Ordinance, there might have been something more to be said in favour of this point. But it appears that he did attempt to obey the order for a certain time, and that even at the trial he has not taken the po .....

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..... ion for life. But in this case the legislature having left the quantum of punishment to the discretion of the Court, it has recognised not only that offences may vary in gravity, but also that there are no considerations of emergency or of public policy requiring every offence to be punished with extreme severity. It has imposed on the Court the duty of assessing the gravity of the particular offence and has required it, by the exercise of its discretion, to fit the punishment to the crime. That discretion the Courts are bound to exercise on well-known judicial principles, In imposing sentence for an offence in any case that comes before the Courts, they always take all the circumstances of the offence into account. If in any case the Court has not sufficiently taken into account the relevant circumstances, and has seriously gone wrong in assessing the punishment, or has not exercised any judicial discretion in assessing the punishment, the High Court in its power of superintendence does interfere to set the matter right. It was suggested by the learned Advocate General that the power of superintendence does not extend so far, and he cited the case of Adya Saran Singh v. Jagannath .....

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..... he accused, in giving a reason for his disobedience of the order, stated that he felt that it was a humiliating order. Whether he considered it humiliating or not, it must be conceded that under the Ordinance it was an offence to disobey it; but when be has to be punished for the disobedience, I think it is a relevant consideration whether he disobeyed the. order from a spirit of defiance and from a desire to indulge in activities dangerous to the public peace or because he rightly or wrongly felt the order to be humiliating. Section 585 of the Criminal Procedure Code enables orders to be passed against persons requiring them to report themselves periodically to the police, but such an order under that section can only be passed against a person who, having been convicted of a serious offence like theft or house-breaking, is again convicted of a similar offence. In practice such an order is rarely passed against a person who has not had several previous convictions. Similarly, orders to report to the police are also passed under the Criminal Tribes Act against members of such tribes, It is, therefore, clear that such orders are ordinarily passed only against persons who have been p .....

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..... past few months I have found several cases under that section in which the punishment varied from three weeks simple imprisonment to six months rigorous imprisonment for disobedience to orders not to take part in meetings or prabhat feris, or processions etc., orders of exactly the same character as were given to the accused is the present case. It will be seen from that section that the punishment is there made to vary with the anticipated consequences of the disobedience. If the disobedience causes or tends to cause obstruction, annoyance or injury etc., the punishment provided is simple imprisonment for a term which may extend to one month or with fine, and if the disobedience causes or tends to cause danger to human life, health or safety, etc., it is made punishable with imprisonment for a term which may extend to six months, of with fine, or with both. It is true that under the Ordinance the maximum sentence is much higher, I am only referring to Section 188 of the Indian Penal Code to show that the legislature has recognised that the anticipated results of the disobedience Would also be a circumstance in mitigation, or it may be, in aggravation of the offence. 10. When an ac .....

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