Conviction cannot be upheld.

The offence with which the petitioner was charged was that he used indecent language and behaved indecently towards P.W. 1 Laxmana and P.W. 2 Sheenappa in the premises of a Government hospital in Udipi and that he had therefore committed an offence punishable under section 92(1) (e) of the Mysore Police Act, 1963.

There are at least two reasons why the conviction of the petitioner by the Magistrate is liable to be set aside. The first is that an offence is committed under section 92(1) (c) of the Mysore Police Act (Mysore Act No. IV of 1963 ) only when the act to which that clause refers is committed in contravention of a notification in the official Gazettee by which the provisions of sub- section (1) of section 92 are extended to a local area. That clause reads:

“92. Punishment of Certain Street Offences and Nuisance:

(1) In any local ara to which the Government by notification in the official Gazette from time to time extends this sub- section or any clause thereof, whoever, contrary thereto, * * * *

(c) wilfully and indecently exposes his person, uses indecent language or behaves indecently or riotoustly or in a disorderly manner in a street or place of public resort, or in any public office; * * * *

shall be punished with fine which may extend to one hundred rupees, provided that imprisonment in default of payment of such fine shall not exceed (right days notwithstanding anything in section 67 of the Indian Penal Code.”

So what is essential for the prosecution to establish in order to sustain a charge under this clause is that the provisions of sub- section (1) of this section had been extended by Government by a notification in the official Gazette to a perticular local area, and that some act was committed by the accused in contravention of that notification. That that is so is clear from the words “whoever contrary thereto” with which sub- section (1) concludes.

But the prosecution produced no notification which could be said to lave been contravened even if the evidence given by P.Ws. 1 and 2 could be believed. I do not accede to the argument of Mr. Public Prosecutor that it was the duty of the accused to defend the charge on the ground that no notification under sub- section (1) of section 92 had been promulgated. On the contrary, the burden was on the prosecution to prove the promulgation of a notification to which section 92(1) refers to produce evidence that there was a contravention of that notification. Since the prosecution produced no evidence in proof of that essential ingredient which was so necessary to sustain the charge, the prosecution has to fail.

Moreover, the charge-sheet which was produced before the Magistrate merely stated that the accused had used indecent language or had behaved indecently. The language employed by the accused was not set out in the charge-sheet and the words supposed to have been used by the accused as stated by P.W. 1 in his evidence are not the same as those stated by P.W. 2. While according to P.W. 1, the accused called P.Ws. 1 and 2 as “ bevarshies”, P.W. 2 stated that he also called them “sons of prostitutes”. That evidence given by P.W. 2 does not receive corroboration from the evidence of P.W. 1, and, having regard to the variation in the evidence of these two witnesses and the fact that the charge-sheet itself did not set out the word employed by the accused, no dependence could have been placed by the Magistrates on the evidence given by P.Ws. 1 and 2 with respect to the language stated to have been employed by the accused. Although the charge-sheet stated that the accused had used indecent language or had behaved indecently, no evidence was produced that there was any indecent behaviour. All that the witnesses stated was that the accused used indecent language. So, unless there was trustworthy evidence that the language employed by the accused was indecent in the sense that it was obscene and so transgressed the rules of public decency, no conviction was possible in the p