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TMI Blog1922 (8) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... V of 1861. In pursuance of the powers vested under Section 30 of Act V of 1861, I do hereby prohibit any processions, associations or assemblies started or formed by any Person or any class of persons within the Municipal and Union area of this District (Palamau) other than under license granted by me, for a period of three months, as I consider such prohibition to be necessary for the preservation of the public safety ". 3. That notice was duly served, by proclamation and beat of drum, but en tie 21st of January some 250 persons formed a procession through one of the streets of Daltonganj, which is the head quarters of the Palamau District, carrying flags and singing songs in disregard of the order of the Super, interment. A Sub-Inspector of Police directed the crowd to disperse and upon refusal to do so he arrested 24 persons of whom the accused was one. 4. The Deputy Magistrate, who tried the case, framed a charge under Section 145, Indian Penal Code, but did not set out the common object of the unlawful assembly of which the accused was alleged to be a member. 5. The learned Assistant Government Advocate who appears on behalf of the Crown contends that, notwithstanding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object that the person who had convened or collected the assembly, or directed or promoted the procession, should resist the execution of the Superintendent's order, then, I think, he would have come under the operation of Section 141, Indian Penal Code. In my opinion this sanest of the case was not presented to the Deputy Magistrate at the trial and we cannot, under the circumstances, convict upon the evidence on the record. 8. But apart from this defect in the evidence three objections have been taken to the application of Section 141, Indian Penal Code, which call for notice. 9. The first objection is that resistance implies something more than disobedience and that a mere intention to disobey will not suffice. I agree that reentrance connotes soma overt act and that mere words, when there is no intention of carrying them into effort will not be sufficient to prove an intention to resist; but in the present case the o induct of the mob and their refusal to disperse at the command of the Police clearly constitute overt acts and establish a common object to resist the orders within the meaning of Clause (2) of Section 141, Indian Penal Code. 10. The next objection is, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es I ought to order a re-trial. The appeal will, therefore, de dismissed. W.S. Coutts, J. 16. I agree with the judgment which has just been delivered by my learned brother. Prafulla Ranjan Das, J. 17. The material facts are these. On the 3rd January last, the Officiating Superintendent of Police of Palamau issued the following notice under Section 30 of the Police Act (Act V of 1861): In pursuance of the powers vested under Section 30 of Act V of 1861, I do hereby prohibit any professions, associations or assemblies started or formed by any person or any lass of persons within the Municipal and Union area of this District (Palamau) other than under license granted by me, for a period of three months, as I consider such prohibition to be necessary for the preservation of the public peace and public safety. 18. On the 21st January a large number of persons, of whom the respondent was one, formed a procession without having taken out a license for the came, and refused to disperse though the Police repeatedly ordered them to disperse. The Polite thereupon arrested a large number of persons including the respondent, and the learned Magistrate in due Bourse convicted them under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-Advocate accepts the position that Section 30A(2) of the Police Act has no application whatever, and it is, therefore, unnecessary to discuss whether the view of the learned Judicial Commissioner is right. 20. But it was insisted by the learned Assistant Government Advocate that the conviction under Section 145 of the Indian Penal Code was nevertheless right, and that the respondent was a member of an unlawful assembly of five or more persons whose common object was, first, to resist the execution of a law, and secondly, to commit an offence. The form of the argument addressed to us by the learned Assistant Government Advocate raises a question of grave public importance; for no less a claim than this is put forward on behalf of the Crown, that a District Superintendent of Police or an Assistant District Superintendent may, by purporting to act under Section 30 of the Police Act, prohibit an assembly or a procession, if the assembly declines to take out a license for such collection or procession and that the members of the procession by refusing to disperse, if ordered to disperse by the Police, make themselves liable not only under the Police Act for which the maximum senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad as constituting a prohibition of the common rights of the subjects to form a procession on the public roads or in the public streets or thoroughfare, No doubt it vests a discretion in the District Superintendent or the Assistant Superintendent to require the persons convening or collecting an assembly or directing or promoting a procession to apply for a license, though, at the same time, it imposes as a condition precedent for the use V of the discretion the exercise of the judgment of the Magistrate of the District or of the sub-division of the District that the procession, if uncontrolled, is likely to cause a breach of the peace. But it is one thing to say that the Act itself constitutes a prohibition, it is another thing to say that the Act gives a limited and a conditional discretion to the Superintendent of Police, not to prohibit an assembly or a procession without a license--for that there is no authority in the Act, as I shall presently show--but to require the persons convening or collecting such assembly or directing or promoting such procession to apply for a license. In my opinion, "law" is one thing and an act done or an order issued under the law is another thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo main heads; first, rules, regulations, and bye laws under the Statute which provides that they shall have the same effect as if enacted therein: and secondly, rules, regulations and bye-laws made under the Statute which does not in terms provide that they shall have the same effect as if enacted therein. The first usually consists of statutory rules, bye laws and regulations made by responsible authorities concerned with Local Government; the second usually consists of bye-laws and regulations made by persons, societies or corporations who are conducting commercial or other' enterprises, whether of a public character or not. Now the distinction between the two is this: that where the Statute, under the authority of which the rules, regulations or bye-laws are promulgated, itself declares that they shall bare the same effect as if enacted in the Statute, the validity of the rules, regulations or bye-laws cannot be questioned in any Courts of Law, nor can the Courts quash them or reject them on the ground that they are uncertain or unreasonable. But where the Statute does not so provide, their validity can be canvassed in the Courts of law, and the Courts can reject them as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament". This is a clear authority for the view that, though there is no difference between a rule and an enactment where there is a provision in the enactment that the rules shall be of the same effect as if they were contained in the Act, there is a wide difference between the two when there is no such provision; and the difference is this that though you may not canvass an Act of Parliament, you may canvass a rule. 30. Bye-laws which are not made part of the Act by the express provision of the Act may be attacked in England on five different grounds; first, on the ground that they are not made, ransomed and oubl shed in the manner Prescribed by the Statute whack authorises the making; secondly, on the ground that they are repugnant to the laws of England; thirdly, on the ground that they are repugnant to the Statute under which they are made; fourthly, on the ground that they are uncertain; and lastly, on the ground that they are unreasonable---(See Craies on Statue Law, page 290). Can it be said for a moment that a bye-law which, unlike the law, may be attacked on various grounds which the Court may refuse to enforce, stands on the cams footing as the law I think not; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither in the first or in the second clause, which gives the Police an express power to prohibit an assembly or procession, if the parsons convening or collecting sash assembly or directing or promoting sash profession decline to apply for a Incense. I shall presently disease the question whether a power to prohibit is incident to a power to regulate and license. It is sufficient here to point out that there is no express power to prohibit given in Section 30 of the Act. Section 30 I. of the Act, however, gives a power to the Police to order an assembly or procession to disperse; but, section. 30A applies and applies only where there is a violation of the Condition of a license, Section 30A, therefore, has no application to this case; for it is admitted that the persons directing or promoting the procession did not apply for a license. On an interpretation of Sections 30 and 30A of the Police Act, it would appear that there is no power in the Polite to prohibit a profession where the persons directing and promoting such profession decline to apply for a license, although there is sash power where such persons take out a license but violate the conditions of such license. 33. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any person selling ice cream (except in a duly licensed hotel) without a license from the Magistrates who were, by that section, empowered to grant the same, for the house, building or premises, where such ice-cream was kept for sale, was liable to a penalty; provided, as the Statute declared, that such license shall run from the date of issue until the 15th day of May next ensuing and upon renewal from the date of expiry of the license so renewed to the 15th day of May succeeding such expiry, unless the same shall be sooner forfeited, revoked or suspended. 35. The Statute also provided that "every person licensed to fell ice-cream under the provisions of this Act who shall sell ice-cream, except during the hours between eight of the clock in the morning and eleven, of the clock at night on any lawful day...shall be liable to the penalties in the Act provided", No form of license was annexed to the Statute. In pursuance of the Statute, the Magistrates drew up a license on the following terms to be issued to the ice-cream vendors licensed by them, tamely. 1. That the said licensee shell not keep open the said premises or sell or permit; the sale of ice-cream therein on Sunday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served by the Magistrates to suspend or revoke the license, observed as follows:---''Now I confess that I have not beard from the learned Counsel and I took the liberty of pressing the learned Counsel on this point, on any power in the Magistrates either to revoke or to suspend this license. It is said that the words which I have read, unless the same be sooner forfeited, revoked or suspended' give the power. My Lords, that construction of the, Act of Parliament seems to me to be entirely contrary to principle. The utmost that yon can say is that the words seem to assume that the corporation either have already, or may at some future time acquire a power to forfeit, revoke op suspend the license. That it does not give the power seems to me plain from a consideration of the words, because the words are, as your Lordships will observe, 'forfeited revoked, or suspended'. Now 'forfeited' has a clear and definite meaning when you are speaking of licenses of this description. It means that if the licensee does or omits certain acts his license will be forfeited. That is the plain meaning of it. Well, my Lords, you will look in vain in this Statute or in this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a bye-law is to regulate and not prohibit "---Volume 27, page 124, foot note (k). 40. It will now be convenient to turn to the actual order issued by the Superintendent of Poles on toe 3rd of January 1922. The order on the face of it is a prohibition, It prohibits all processions, associations, or as assemblies for a period of three months except under a license, and it prohibits such processions, associations or assemblies, not only in a public road, street or thorough far, but anywhere within the Municipal or Union Ares are of Palamau. A more absolute prohibition it is difficult to imagine; and the reason for this extraordinary order constituting, as it does, a very serious inroad upon the liberty of the subject is that, the Officiating Superintendent of Police considers such prohibition to be necessary for the preservation of the public peace and public safety. It is, in my opinion, only necessary to state the terms of the order to reject it as utterly beyond the power of the Officiating Superintendent of Police. In the first place, the order is on the face of it a prohibition; and, if Lord Davey is right in his view, a power to prohibit is not incident to a power to to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold further that, if that basso regarded we are bound to deny it for the reasons whish I have already given. 42. I now come to the next branch of the argument, namely, whether there was any execution of the law. Execution means enforcing, carrying into effect. Now it is well established that execution, to be lawful, must follow the procedure laid down in the Act. The law in this case is the order of the Officiating Superintendent of Police prohibiting all assemblies, associations and professions except under a license. I will assume that the order was a lawful one and that it could be executed. I will assume that there was a violation of that order by the persona who formed the procession. But assuming all these, how could the law, that 13 to say, the order of the Officiating Superintendent of Poise be executed ? The learned Assistant Government Advocate contends that it could be executed only by ordering the procession to disperse. In my opinion, on an interpretation of Section 30, 30A and 3 the contention is an impossible one. Section 30A which does not aooly to this case does give the Police a right to stop a procession and to order it to disperse. Section 30 which does apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... libhai Rai. UC Cas 412. it was held that the mere refusal by the accused person to make over to a bailiff money alleged to be in his pocket is cot a resistance to the taking of that money within the meaning of Section 183 of the Indian Penal Code. In that case the bailiff made a demand for the money and the accused replied that the bailiff was not legally entitled to take the money and that he would not give it to him It was held that there was nothing mare than a refusal to submit and that there was no resistance within the meaning of Section 183, Indian Penal Code. The same view was taken in the case of Quem Empress v. Husain 15 B: 564 : Ind. Dec. (N. S.) 380. In this case the bailiff went to attach two tonga tops belonging to the judgment debtor. Thereupon the accused said that the tonga tops were his and that he would not let the bailiff take them away unless he entered them as his property, it was held that a mere verbal direction to the bailiff not to remove the property could not be regarded as a resistance. I cannot distinguish these cases from the present case. The accused persona in the present case did nothing more than refuse to obey the order of dispersal given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The principle is stated with clearness and precision in Hawkins' Pleas of the Crown, Book 11, Ch, 25, Section 4 and is as follow:---"Also where a Statute makes a new offence which was in no way prohibited by the Common Law, and appoints a peculiar manner of proceedings against the offender as by commitment, or action of debt, or information, etc, without mentioning an indictment, it teems to be settled to this day that it would not maintain an indictment, because mentioning the other methods of proceeding seems impliedly to exclude that of indictment." This passage was regarded in the case of Reg v. Hall (1891) 1 QB 747 : 60 LJMC 124 : 64 LT 394 : CC 17 Cox 278. as a full statement of the principle which should guide the Courts in regard to the decision of the cases. That was a case where the defendant was charged in the seventeen counts of the indictment with crimes which might be classified into three divisions: first, he was charged with the wilful omission of the names of qualified persons from the electoral lists. Secondly, he was charged with the wilful insertion of the names of unqualified persons in the electoral lists, Thirdly, he was charged with an attempt to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were to offend again he would not be subject to the summary procedure and the GBP20 penalty, but would be liable to imprisonment for breach of the interdict p My Lords, is seems to me, I confess, scarcely necessary to do more than state the contention to show that, it is impossible that it can be supported. If that be the law, the number of cases must have been almost innumerable in Which such a proceeding would have been competent, and yet it is absolutely unheard of. I will not dwell upon the grave inconveniences which would result from sanctioning a procedure of that description. The mode of procedure and the amount of penalty are often regarded by the Legislature as of the utmost Importance When they are creating new offence, and the law would, I believe, contrary to their intention be most seriously modified if it were held that the party committing a breach of that which for the first time is made an offence were to subject himself by so doing to proceedings of this description which might result in a committal to prison". 48. As I have said, the passage cited is most appropriate to the question which has been debated in this Court. Here also, for the first time, a new offen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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