1961 Supreme(Pat) 91

PATNA HIGH COURT
Raj Kishore Prasad, J.
Sarsibala Dawan
Versus
State Of Bihar
Criminal Reference No. 69 of 1961 ;
Criminal Revision No. 927 of 1961 ;
Decided On : SEPTEMBER 29, 1961

The Police have no power under Sub-section (1) of Section 30 of the Police Act, 1861, to ban a procession.

Headnote:

POLICE ACT, 1861 - SECTION 30(1) - INTERPRETATION - POWER OF POLICE TO CONTROL AND REGULATE PROCESSIONS - NO POWER TO BAN PROCESSIONS - PROMULGATION BANNING PROCESSION UNDER SECTION 30(1) - ULTRA VIRES - DISOBEDIENCE OF SUCH PROMULGATION - NO OFFENCE.

Fact of the Case:

18 women accused were convicted under Section 32 of the Police Act, 1861, for taking part in an unlicenced and unauthorised procession in violation of a promulgation issued by the police banning processions under Section 30(1) of the Act. One of the accused, Sarsibala Dawan, was convicted on the plea of guilty made by her co-accused, Anrupa Chatterjee, who claimed to represent her. The other 17 women accused pleaded guilty and were convicted accordingly.

Finding of the Court:

1. The Magistrate had no jurisdiction to try the case in the absence of the accused, except in cases provided by the Code of Criminal Procedure (CrPC). 2. Section 205(1) of the CrPC allows a Magistrate to dispense with the personal attendance of the accused and permit them to appear by a pleader, but only if the Magistrate has issued a summons in the first instance. 3. Section 242 of the CrPC requires the particulars of the offence to be stated to the accused and asks if they have any cause to show why they should not be convicted. 4. Section 243 of the CrPC provides that if the accused admits to the offence, their admission shall be recorded and they may be convicted accordingly. 5. Section 342 of the CrPC requires that all evidence be taken in the presence of the accused, or, when their personal attendance is dispensed with, in the presence of their pleader. 6. Section 540A of the CrPC also provides for inquiries and trials to be held in the absence of the accused in certain cases. 7. A co-accused can be authorised by another co-accused to represent them in a trial before a Magistrate with the Magistrate's permission. 8. In the instant case, Sarsibala Dawan was not present before the Magistrate and did not appear personally. She had not applied for exemption from personal appearance or appointed a pleader or any other person to represent her. There was no record to show that Anrupa Chatterjee was duly appointed by Sarsibala Dawan to represent her, or that the Magistrate had given the requisite permission to Anrupa Chatterjee to represent Sarsibala Dawan. Therefore, Sarsibala Dawan could not be convicted on the plea of guilty made by Anrupa Chatterjee. 9. The mandatory provisions of Section 243 of the CrPC were not complied with as there was no recorded admission of any of the accused that they committed the offence as required by the section. 10. The examinations of the accused under Section 342 of the CrPC were not a compliance with the mandatory provisions of Section 243 of the CrPC as they did not amount to an admission of any offence. 11. The accused were not given an opportunity to explain the real incriminating circumstances appearing against them during their examinations under Section 342 of the CrPC. 12. The promulgation banning the procession, purported to have been made under Sub-section (1) of Section 30 of the Police Act, was ultra vires as the Police had no power under that section to ban the procession. 13. The women petitioners committed no offence by violating the ultra vires promulgation.

Issues: 1. Whether the Magistrate had the jurisdiction to convict Sarsibala Dawan on the plea of guilty made by her co-accused, Anrupa Chatterjee, in her absence. 2. Whether the mandatory provisions of Section 243 of the CrPC were complied with in the trial of the women accused. 3. Whether the examinations of the accused under Section 342 of the CrPC were a compliance with the mandatory provisions of Section 243 of the CrPC. 4. Whether the accused were given an opportunity to explain the real incriminating circumstances appearing against them during their examinations under Section 342 of the CrPC. 5. Whether the promulgation banning the procession, purported to have been made under Sub-section (1) of Section 30 of the Police Act, was ultra vires.

Ratio Decidendi: 1. A Magistrate cannot convict an accused person under Section 243 of the CrPC on a plea of guilty when the accused is not personally present unless made in the manner stated in Section 205(1) of the CrPC. 2. The mandatory provisions of Section 243 of the CrPC require that the accused's admission of the offence be recorded as nearly as possible in the words used by them, and if they show no sufficient cause why they should not be convicted, the Magistrate may convict them accordingly. 3. The examinations of the accused under Section 342 of the CrPC are not a compliance with the mandatory provisions of Section 243 of the CrPC if they do not amount to an admission of any offence. 4. The accused must be given an opportunity to explain the real incriminating circumstances appearing against them during their examinations under Section 342 of the CrPC. 5. Sub-section (1) of Section 30 of the Police Act gives the Police power to control and regulate processions, but not to ban them. 6. A promulgation banning a procession, purported to have been made under Sub-section (1) of Section 30 of the Police Act, is ultra vires.

Final Decision: The reference made by the Additional Sessions Judge, Hazaribagh, recommending that the conviction and sentence passed on Sarsibala Dawan under Section 32 of the Police Act be quashed, is accepted. The criminal revision filed on behalf of the remaining 17 women accused is also allowed. The convictions and sentences of all 18 women accused are set aside, and the fines, if paid, shall be refunded to each of them.