TMI Blog1932 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... nment 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 Magistrates including the Commissioner of Police, Bombay, with the powers of the Local Government under Sub-section (1) of Section 4 of the said Ordinance. The notification is not, I venture to think, very artistically worded. If the words be taken literally, the Governor invests all District Magistrates and the Commissioner of Police, Bombay, with these particular powers. which suggests that all the District Magistrates and the Commissioner of Police, Bombay, must act in the matter as a sort of corporate body, A power conferred on all. Magistrates is not the same thing as a power conferred on each Magistrate. But, when one has regard to the nature of the office of District Magistrate, and Commissioner of Police, Bombay, one cannot, I think, construe the order as meaning that, and I am disposed to think that what the order really means, and should be construed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 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 criminal law we are asked to revise a sentence, we have the experience of many other cases of a similar nature to guide us in determining whether the sentence is right or not, Here we are dealing with a matter which is made an offence under a particular Ordinance, in the interests of the preservation of public peace and for a limited time, and we have no experience which assists us in saying what sentence should be imposed. Now, what had the Magistrate before him in this case when he was considering the proper sentence ? He had, in the first place, the fact that the accused is a pleader, a man who knows the law, and a man of middle age. He also had the fact that the breach of the order was deliberate. The accused says that he thought that compliance with the order was humiliating, and that he was not prepared to obey the order which required him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proved in the case, and if I thought that his view as to the proper sentence had really been affected by facts which were not proved, I should have been in favour of sending the case back to him to ascertain what sentence he would have imposed on the basis that those facts ought not to be taken into account. But I am quite satisfied that those facts did not really affect the. sentence which he was imposing. He was considering the effect on the neighbourhood of conduct such as that of which the accused was guilty, and I think he only referred to the thirty youths by way of illustration. I do not think, therefore, that that is a ground on which we should be justified in interfering. I think, therefore, that we cannot make any order on the reference. R.S. Broomfield, J. (Concurring) 1. On the merits of the case, the first po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 about to act, in a manner prejudicial to the public safety. Now, in this case it seems fairly obvious that anything done by this accused must ' have been done in Pandharpur where he lives and practises, and anything likely to be done by him was presumably likely to be done also in Pandharpur within the Sholapur District, The order clearly could not have been made on account of what the accused was doing in the jail at Bijapur, and, in my opinion, the District Magistrate of Bijapur could not have made this order. Possibly he could have made another kind of order under the section directing the accused to remain in Bijapur or to conduct himself in some particular manner within that district. The section itself provides that an order made is to be served on the person to whom it relates in the manner provided in the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 other and probably more drastic method of enforcing the provisions of the Ordinance than a judicial trial. But I think this is not a correct statement of the legal position. Under Section 4 the District Magistrate and not the Court has to be satisfied of the necessity for the order. He is the sole judge of that necessity. The reasons that satisfy him may be confidential. In any case they do not concern the Court trying an offence under Section 21, The Court has only to be satisfied that an order or direction has been made in accordance with the provisions of Section 4, and that it has been disobeyed. That is the view taken by the Special Magistrate and by the Sessions Judge in appeal. I think it was the correct view. 4. That leaves nothing which can possibly call for revision, except the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pread. 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 of the accused's disobedience or the consequences that might have ensued if he had not been arrested seems to me impracticable and unwarranted. It is impracticable because in a time of emergency the consequences of unchecked defiance of orders which the Executive holds necessary for the preservation of the public peace are incalculable. You cannot in fact isolate the consequences of an individual case of disobedience. It seems to me to be an unwarranted suggestion because it does not appear that the prosecution in this case was pressing for an exemplary sentence. The matter of sentence was left entirely to the discretion of the Court. If the Magistrate thought that he required further information to enable him to determine the proper sentence, he might have asked for it, although, if he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 point that it was served on him at Bijapur. In these circumstances, it seems to me that the service outside the district was an irregularity which has caused no substantial injustice or hardship, and is not such as would call for interference in revision. 4. As regards the second point whether the order to report himself to the police three times a day was one that could legally be made under Section 4 of the Ordinance, it seems to me that the Ordinance has given such wide powers that it is not competent to the Court to go behind the discretion of the District Magistrate in' that matter. The Court must assume, until the contrary is shown that the order has been made for preventing the accused from acting in a manner prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 MANU/UP/0272/1924 : I.L.R. (1924) All. 323 in support, but a reference to the case of Pigot v. Ali Mohammad Mandal I.L.R. (1920) Cal. 552 shows that the power of superintendence can be used to set right all forms of judicial highhandedness, and 1 venture to think that under this power, if a Court has failed to exercise its discretion in assessing the sentence, that would be a proper ground for interference. If I understood my brother Broomfield aright, he also conceded that if a sentence was patently unreasonable, that might be a reason for interference. With respect I agree with that view, and it seems to me that the present case clearly comes within that description, and that in imposing the sentence that has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proved to be of the very worst character and who in fact are the dregs of society. It is not surprising if an order of that character passed against a man of education and good position in the town was felt by him, rightly or wrongly, to be humiliating. And if he gives an explanation of his conduct which is comparatively innocent, I do not think it is right for the Court to assume that the worst explanation of his conduct that is possible must be the true one. Nor is it at all easy to understand what activities dangerous to the public safety he could indulge in by neglecting to obey the order to report himself to the police three times a day which he would be unable to indulge in if he complied with that order. I do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anger 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 accused is convicted of theft before a Court, he is convicted of doing something which the law prohibits him from doing. If he has stolen something from a house, he is liable under Section 380 of the Indian Penal Code to a maximum punishment of imprisonment for a term which may extend to seven years. But if a man is convicted of stealing an umbrella from the verandah of a house, I do not think any Court would pass the maximum sentence, and if it did, I conceive that it would be a very good ground for setting the matter right in revision if the appellate Court had failed to do so. 11. On the materials before the Court in the present case the offence seems to have been a minor one, which, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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