H.C.P. Tripathi, J. - (1.) THE applicant is a permanent resident of the town of Vrindaban. He practices as an advocate in the district courts at Mathura. A Kumbh Mela was to be held at Vrindaban in March, 1962. On February 14, 1962 the Governor of Uttar Pradesh promulgated an order No. 312/XVIII -1997/1961, in exercise of his powers Under Section 2 of the Epidemic Diseases Act 1897 for the prevention of outbreak and spread of epidemic diseases at the Mela. Paras 2 and 3 of the aforesaid Order read as follows: (2) During the period between March 1, and March 20, 1962, both days inclusive, no person other than Military personnel on duty, and children below three years of age shall be carried by any vehicle or boat to Vrindaban and an area within a radius of five miles of it unless he holds a certificate of having been inoculated against cholera on a date not prior to December 15, 1961, signed by a Medical Officer or Medical Officer of Health or Epidemic Assistant or Sanitary Inspector in the service of Government or a local body, or signed by a Registered Medical Practitioner of modern medicine (Allopathy) and countersued by the honorary Secretary or President of the local branch of the Indian Medical Association and bears the seal of his office. (3) (i) During the period of March 1 and March 20, 1962, both days inclusive, no person shall enter the mela area defined in regulation (i) below unless he holds a certificate signed by a Medical Officer or Medical Officer of Health or Epidemic Assistant or Sanitary Inspector in the service of Government or a local body or signed by a Registered Medical Practitioner of modern medicine (Allopathy) and countersigned by the Honorary Secretary or President of the local branch of the Indian Medical Association and bears the seal of his office, showing that he has been inoculated against cholera on a date not prior to December 15, 1961. (ii) Every person shall produce such certificate on demand to any member of the police and health staff on duty in the mela area; Provided that if the person entering the mela area is a child below 14 years, the parent or guardian or other person in whose charge he is, shall be required to produce such certificate in respect of the child. (iii) A person who is unable to produce the anticholera inoculation certificate referred to in Clause (i) shall get himself inoculated at the inoculation post at one of the barriers in the mela area before he is allowed to pass within the harrier. (iv) The District Magistrate, Mathura, or the Officer incharge of the Mela, or any person authorised by any one of them ' in this behalf may prohibit from entering into or remaining in Mela area any person who fails to produce a certificate as required by Clause (ii) or refuses to get himself inoculated as required by Clause (iii). (v) These regulations shall not apply to military personnel on duty or children under three years of age. (vi) "Mela Area" means the whole of Vrindaban town and an area within a radius of five miles of it.
(2.) THE applicant visits the city of Mathura every day on his professional business as an advocate and returns back in the evening to his house at Vrindaban. According to the prosecution on the 2nd March, 1962 the applicant was on his way from Mathura to Vrindaban and when his car reached a place near Attalia Chauki he found a barrier, which had been raised by Mela Authorities in order to prevent the entry of persons who had not been inoculated for cholera in Vrindaban. As Sri Sharma stopped his car near the barrier and asked Bishambhar Dayal, who was looking after it to lift it to enable his car to pass, he was asked to show inoculation certificate. Sri Sharma retorted, that as he was a permanent resident of Vrindaban he was not required to take inoculation within the meaning of the aforesaid order. This resulted in a discussion between him and Bishambhar Dayal and the matter was ultimately referred to Sri G.C. Datta, Assistant Director Medical and Health Services and Jagdish Chandra, District Medical Officer of Health, both of whom happened to be present there at that time. They informed the applicant that for him it was necessary either to get himself inoculated at the barrier or to produce a certificate of inoculation before he could be allowed to enter the Mela area. It appears that there was some discussion between them and the applicant is alleged to have caught hold of Bishambhar Dayal by his neck, pushed him aside, lifted the barrier and drove away. On these allegations the applicant was prosecuted for an offence Under Section 353 of the Indian Penal Code to which he pleaded not guilty. He admitted that his car had been stopped at the barrier and that there was some heated discussion between him and the Mela Authorities posted at the barrier regarding the applicability of the Regulations preventing the entry of non inoculated persons in the Mela area in his case. He, however, denied to have pushed aside Bishambhar Dayal or to have caught hold of his neck.
(3.) A number of witnesses were produced before the trial court in support of the prosecution story. The trial magistrate held that since the applicant had not entered the Mela area from outside, he was not required to take any inoculation within the meaning of the Regulations promulgated by the State Government. Even then the learned magistrate was of the view that as Bishambhar Dayal was barring the entrance of the persons in the Mela area with a view to find out whether they had been inoculated or not, he was acting under the colour of his office as a public servant and the applicant had no justification to push him aside and drive away his car by force. He, therefore, convicted the applicant Under Section 352 of the Indian Penal Code and sentenced him to pay a fine of Rs. 55/ - only.;