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Janki Prasad Tewari Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in55Ind.Cas.673
AppellantJanki Prasad Tewari
RespondentEmperor
Excerpt:
.....v of 1898), section 107 - lawful possession, protection of, by armed men, whether likely to cause breach of peace. - - they were entitled to protect their possession which more than once had been threatened by a show of armed force and they were provoked into adopting a solid and determined attitude of defence, but it was not, i am satisfied, with a view to provoking the other side to attack them personally, so that the right of self-defence would be called into play, that the applicant collected this force. therefore, the findings of the lower court that 'in consequence of the presence of the police the servants of the rightful party were not in any physical danger and that once the armed guard was present it was unlikely that physical violence would be attempted',and 'that the..........says, 'it may be that some of them had been engaged for the use of lathis if necessary.' no actual breach of the peace, took place. no doubt there was a danger of a breach of the peace but there is nothing either in the circumstances or in the findings arrived at by the courts below to indicate that the applicant had any desire or intention or any object to gain in himself committing or originating a breach of the peace. the very presence of the police, as the courts below have themselves said would indicate that there was a likelihood. i think the inevitable conclusion from these circumstances must be that the object of the collection of these men upon the ground was to defend the possession of the property which had been obtained with so much difficulty and after long delay, and.....
Judgment:

Walsh, J.

1. From the facts found in this case it is clear that there has been an old standing dispute between the two parties with regard to the possession of certain lands. The present applicant was the servant of the successful party. The successful party had obtained a decree for possession from a Civil Court. Both parties had been required to give security under Section 107 and the period for such security had expired on the 26th June, 'it is clear,' says the lower Court, 'that by giving possession on the 3rd of August 1919 the other party had ceased legally to have any standing in any of the property.' Notwithstanding all this the other party on various dates, namely, the 12th of August, the 14th of August and the 24th of August, there atened the lawful possession which the applicant's master had obtained and threatened it with an armed force. In consequence of this the Sab-Inspector at the instance of the applicant obtained the assistance of two constables and three Chaukidars whom he let on the spot. On one occasion the other party brought a gang of no less than forty man. On the occasion in question, namely, the 24th Of August when the Polios were also present, the applicant posted ten men armed with lathis at the spot. These men are found to have been the servants of the applicant's master though as the Court says, 'it may be that some of them had been engaged for the use of lathis if necessary.' No actual breach of the peace, took place. No doubt there was a danger of a breach of the peace but there is nothing either in the circumstances or in the findings arrived at by the Courts below to indicate that the applicant had any desire or intention or any object to gain in himself committing or originating a breach of the peace. The very presence of the Police, as the Courts below have themselves said would indicate that there was a likelihood. I think the inevitable conclusion from these circumstances must be that the object of the collection of these men upon the ground was to defend the possession of the property which had been obtained with so much difficulty and after long delay, and physical ouster from which might give rise to fresh applications or litigation There is nothing to show that any other object was intended. If an unprovoked breach of the peace had been intended, there was ample opportunity for it of which neither the applicant nor any of his party availed himself. One method, as has so often been said and as a large portion of the civilised world has had forced upon its conviction in the last few years of preserving peace, is to show by preparation a determination to resist attack, and the presence of a substantial force prepared to defend the possession of the property and able to render effectual assistance to the Police, if they should by some foolish conduct of the other party be attacked, would undoubtedly do much to discourage the other party from taking any active steps. In other words, I can find nothing in the findings of the Courts inconsistent with what the learned Judge himself says is the real question in the case, namely, the intention to maintain an existing right.

2. My reason for interference in revision is that I think both the Courts below, who really arrived at this conclusion and started their final consideration of the legal result of the evidence from this point, have got off the rails in attributing to the applicant and his party a superfluous intention to defend themselves as distinct from the property. That the applicant and his party might have been driven to this course is obvious, but they were in the right; they were entitled to protect their possession which more than once had been threatened by a show of armed force and they were provoked into adopting a solid and determined attitude of defence, but it was not, I am satisfied, with a view to provoking the other side to attack them personally, so that the right of self-defence would be called into play, that the applicant collected this force. Therefore, the findings of the lower Court that 'in consequence of the presence of the Police the servants of the rightful party were not in any physical danger and that once the armed guard was present it was unlikely that physical violence would be attempted', and 'that the accused are debarred by the existence of the Police guard from pleading that the lathials were placed there solely for self-defence' are really immaterial, in other words, having destroyed a defence which was never set up, namely, that of self-defence, the lower Court has held itself bound to hold that the assembly was, therefore, unlawful and has overlooked altogether the view that protection of lawful possession was in itself perfectly lawful and might properly be done by a body of men who were able to show that they were prepared not only to resist any unlawful violence to interfere with the possession but to defend themselves if it became necessary in the process. It seems to me that the conclusion has been arrived at not merely by a sort of misdirection but by applying such hard measures to the applicant as to amount in my opinion to a miscarriage of justice. This view applies equally to the co-accused who, however, were only fined Rs. 5 each and bound over. They appear to be satisfied with the result as far as they were personally concerned. At any rate they have neither appealed nor applied in revision, and I do not encourage either of them to do so at this stage when four months have elapsed since their cases were disposed of, but in the case of the present applicant I am satisfied that there is no reason either for punishing him or for binding him over. If at any future time he should commit a breach of the peace in this matter, which I hope having regard to the order under Section 145 is now unlikely, the fact, that a serious warning was given him in this case, will no doubt be taken into consideration, but so far as he is concerned, I allow his application, quash both the convictions, and direct, that the order requiring him to give security be set aside. As he is on bail, he need not surrender and his recognizance will be discharged.


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