Thursday, 7 February 2013

Order u/s 37 of bombay police Act should be brought to notice of public by proclaiming it e.g. by the beat of drums or affixing in public places like Police Stations, chavdis and other public buildings.

The Legislature appears to have contemplated that the authority must take steps to have the notification brought to the notice of the public who are likely to be affected thereby and that my be effected by proclaiming it e.g. by the beat of drums or affixing in public places like Police Stations, chavdis and other public buildings. But mere publication in the Government Gazette cannot be regarded as public promulgation within the meaning of section 37.
 In the instant case, as pointed out heretofore, there is no evidence whatsoever to show that the order of the District Magistrate was publicly promulgated as required under section 37 of the Bombay Police Act. All that Police Constable Khandagale has deposed to is that District Magistrate had issued an order under section 37 of the Bombay Police Act that nobody should possess any dangerous weapon or explosive substance and that he produced a copy of the said order. There is no evidence to show that this order was published in the Government Gazette. There is further no evidence whatsoever to show that the order had been brought to the notice of the public by affixing the same at prominent places in the city or that it had been proclaimed by the beat of drums. I, therefore, accept the submission made by Smt. Madbhavi that the order had not been publicly promulgated as required by section 37 of the Bombay Police Act, 1951. This being a temporary order, if the order had not been promulgated as required by law, then breach, therefore, cannot be made penal. The accused is entitled to an acquittal.

Bombay High Court
Ramesh Mulchand Ramani vs State Of Maharashtra on 4 July, 1980

1. The petitioner herein was charged before the learned Chief Judicial Magistrate, Ahmednagar, under section 135 read with section 37 of the Bombay Police Act, 1951.
2. The prosecution case was that on 21-12-1977 the accused was seen near Lal-Taki Ahmednagar by P.S.I. Kharote and Police Constables Fanase and Khandagale, who were patrolling in the area. On seeing the patrol the accused tried to run away. He was, however, chased and apprehended. Thereafter in the presence of Panch witnesses the person of the accused was searched and a knife or a dagger was found in the pocket of his 'pyjama'. The same was taken charge of under a Panchanama (Ex. 7). P.S.I. Kharote lodged his complaint, which has been treated as the First Information Report (Exhibit 5). The accused was thereafter charged as aforesaid.
3. The learned Chief Judicial Magistrate, Ahmednagar, was pleased to convict the accused under section 135 read with section 37 of the Bombay Police Act, 1951, and the learned Chief Judicial Magistrate sentenced the accused to suffer rigorus imprisonment for six months.
4. Being aggrieved by the said conviction and sentence the accused appealed to the learned Sessions Judge, Ahmednagar. The learned Sessions Judge by his judgment and order dated 18th January, 1980 was pleased to allow the appeal partly. The conviction of the accused was confirmed. However, the penal sentence was reduced to a period of rigorous imprisonment for four months and an additional sentence of fine of Rs. 100.00; in default to suffer rigorous imprisonment for one month was imposed.
5. Against the judgment and order of the learned Sessions Judge, Ahmednagar, the accused has now approached this Court in revision.
6. The only point canvassed by Smt. Madbhavi, the learned Advocate appearing on behalf of the petitioner, is that the prosecution had not complied with the provisions of section 37(1) of the Bombay Police Act, 1951, in that the order of the District Magistrate had not been publicly promulgated as required by that section. According to Smt. Madbhavi the order of the District Magistrate dated 8th December, 1977 had been in force from 12-12-1977 to 23-12-1977 i.e. for a period of eleven days. Smt. Madbhavi argued that this being one of those temporary orders promulgated by the District Magistrate, it was incumbent upon the prosecution to show that it was publicly promulgated in the sense that it was published in the Government Gazette and also displayed at prominent places in the City of Ahmednagar or proclaimed by beat of drums or 'Bataki'. Smt. Madbhavi urged that before an accused person could be found guilty of having committed a breach of such a temporary order, it was necessary to prove that the accused had knowledge of the promulgation of the order and unless it was shown that the order was publicly promulgated as required by section 37 of the Bombay Police Act, 1951 the accused could not be found guilty of any offence in breach of such an order. Section 37 of the Bombay Police Act, 1951 provided :---
"Section 37(1). The Commissioner and the District Magistrate in areas under their respective charges may, whenever and for such time as he shall consider necessary for the preservation of public peace or public safely by a notification publicly promulgated or addressed to individuals, prohibit at any town, village or place or in the vicinity of any such town, village or place---
(a) the carrying of arms, cudgels, swords, spears, bludgeons, guns, knives, sticks or lathis, or any other article, which is capable of being used for causing physical violence,"
(The rest of the section is not material for the purpose of this discussion)
At this stage it will be pertinent to point out the evidence of Police Constable Ramesh Joseph Khandagale (P.W. 1) who stated :
"District Magistrate had issued an order under section 37 of the Bombay Police Act that nobody should possess any dangerous weapon or explosive substance. I produce the copy of that order. (Exhibit 4)".
This is the only evidence led by the prosecution so for as publicly promulgating the said order of the District Magistrate was concerned. Smt. Madbhavi is justified in the contention that an order promulgated under section 37 of the Bombay Police Act, 1951, was a temporary order in the sense that its life was only for a specified period in the instant case for eleven days. It was, therefore, necessary for the prosecution to prove that there was public promulgation of the said order i.e. either by publication in the Government Gazette and by publishing and displaying prominently in various parts of the city or by proclaiming it in various parts of city by beat of drums or 'Bataki". In the instant case the order was not published in the Government Gazette nor was there evidence to show that it was published and displayed in different parts of the city by sticking the same at prominent places. A Division Bench of this Court in the case of the State v. Azizkhan Subedarkhanhas
observed :---
"Prohibition can be imposed under section 37(1) for preservation of public peace or public safety by a notification publicity promulgated or addressed to individuals, and by such notifications carrying or arms, cudgets, swords, spears, bludgeons, guns, knives, sticks or lathis or any other articles which is capable of being used for causing physical violence may be prohibited in any town, village or place in the vicinity of such town, village or place. In order that the power reserved to the reserved to the Commissioner and the District Magistrate under section 37 may be regarded as lawfully exercised, the notification must be publicly promulgated or addressed to individuals................We are unable to accept the argument advanced by the learned Government Pleader. The Legislature requires that the power reserved under section 37 of the Act can be exercised by issuing the notification and publicly promulgating the same. The expression 'publicly promulgated' has not been defined in the Act and must, therefore, be understood in its normal connotation. Mere publication in a Government Gazette cannot, in our, judgment be regarded as equivalent to promulgation much less can it be regarded as public promulgation.
The Legislature appears to have contemplated that the authority must take steps to have the notification brought to the notice of the public who are likely to be affected thereby and that my be effected by proclaiming it e.g. by the beat of drums or affixing in public places like Police Stations, chavdis and other public buildings. But mere publication in the Government Gazette cannot be regarded as public promulgation within the meaning of section 37.
In our view, the expression 'publicly pronulagated' is not equivalent to publication in the Government Gazette. It is true that there is a presumption that official acts are properly performed; but before the presumption can arise, it must be established that the official act was done and only if a dispute arises as to the propriety of the reference, the presumption may arise."
6. In the instant case, as pointed out heretofore, there is no evidence whatsoever to show that the order of the District Magistrate was publicly promulgated as required under section 37 of the Bombay Police Act. All that Police Constable Khandagale has deposed to is that District Magistrate had issued an order under section 37 of the Bombay Police Act that nobody should possess any dangerous weapon or explosive substance and that he produced a copy of the said order. There is no evidence to show that this order was published in the Government Gazette. There is further no evidence whatsoever to show that the order had been brought to the notice of the public by affixing the same at prominent places in the city or that it had been proclaimed by the beat of drums. I, therefore, accept the submission made by Smt. Madbhavi that the order had not been publicly promulgated as required by section 37 of the Bombay Police Act, 1951. This being a temporary order, if the order had not been promulgated as required by law, then breach, therefore, cannot be made penal. The accused is entitled to an acquittal.
7. In the result, the Rule is made absolute. The conviction of the accused under section 135 read with section 37 of the Bombay Police Act, 1951 is quashed and the sentence passed on him is set aside. The accused will be set at liberty forthwith unless required in some other case. Fine, if paid, to be refunded.
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