1. This Rule has been issued to show cause why the conviction of the petitioner and the sentence passed on him should not be set aside on ground 2 mentioned in the petition. The petitioner has been convicted under Section 161 read with Section 213, Act 6, 1901 (Assam Labour and Emigration Act) and has been sentenced to pay a fine of Rs. 200. The order of conviction and sentence was passed, in the first instance, by a Magistrate at Dibrugarh, and the same has been confirmed on appeal by the Sessions Judge of the Assam Valley Districts. Ground 2 of the petition upon which this Bale has been issued runs in these words:
For that the assumption of the learned Sessions Judge that a recruiting Sardar must accompany every batch of coolies and the imputation of the petitioner's guilty knowledge therefrom are wrong.
2. There was a considerable amount of confusion in the, proceedings that took place in the Courts below in connexion with this case and a perusal of the record discloses certain facts which I shall presently narrate and which will speak for themselves.
3. The petitioner was an agent of Messrs. Midland Bose and Co. at a place called Amingaon. Messrs. Midland Bose and Co. are the forwarding agents of tea labourers recruited in different parts of India. Certain coolies were recruited for the Madhuting Tea Estate by one B.K. Banerji who, however, did not have a license for recruitment of coolies. The said coolies were dispatched by Messrs Midland Bose and Co. to Amingaon and the petitioner received those coolies and sent them to the Madhuting Tea Estate, These shortly are the facts of the case upon which the petitioner was tried. The Manager of the Madhuting Tea Estate was at first put upon his trial when it was discovered that the said B.K. Banerji had no license to recruit coolies and he was convicted. Thereafter it appears that a complaint was lodged in the Court of the Magistrate at Dibrugarh by somebody whose initials cannot be deciphered in these words:
To the Magistrate, Dibrugarh, Sir. I have the honour to apply for summons against the following accused under Sections 164/213, Act 6, 1901. The history of the case is herewith put up.
4. The name of the accused was given as A.R. Bose of Amingaon, agent to Messrs. Midland Bose and Go.' The history of the case which is said to have been put up along with the complaint consists of a sheet of paper which is headed as containing:
points in respect of and relevant to the illegal recruitment of coolies by B.K. Banerji and the assistance rendered in these transactions, by A.R. Bose.
5. It refers to four challans by their numbers and dates and states that the said A.R. Bose. assisted and caused to emigrate the coolies mentioned in the said challanas in contravention of Act 6 of 1901. On this complaint, summons appears to have been issued against the petitioner under Sections 164/213 of the Act. No copy, however, of this summons is to be found in the record. But the summons, that were issued on the witnesses are available and they show only that the offence for which the petitioner was being tried was an offence under the Emigration Act. There is no reason to suppose that the summons that was issued against the petitioner was indifferent terms. However that may be an offence under Section 164 read with Section 213, Act 6, 1901 is an offence relating to a summons case and Section 242, Criminal P.C., evidently applies to the trial of such a case. It does not however, appear from the record that the substance of the accusation that the prosecution desired to make against the petitioner was made known to him in accordance with the provisions of Section 242, Criminal P.C. If, in point of fact, the provisions of this section were not complied with, then that would in itself be a grout d for setting aside the whole trial. I am not sure, however, whether the said provisions were complied with or not. All that can be said is that there is no record with reference to this matter amongst the papers that are before me. Thereafter, it appears, one witness was examined on behalf of the prosecution, namely U.C. Burdaloi, who happened to be the Manager of the Madhuting Tea Estate. It is really upon the evidence of this witness, coupled with the documentary evidence that was adduced in the case that the conviction of the petitioner is based. It may be mentioned, here that of the four challans that are referred to in the history, of the case that was filed1 along with the petition of complaint, the one which concerns the present case is challan No. 172 bearing, date the 17th April 1926, the challan relating to the dispatch of 16 coolies. From the note' as regards the history of the case, it would appear that the petitioner was charged with having assisted in the emigration of the said 16 coolies referred to in challan No. 172. That substantially may be taken to be the case that was put forward against the petitioner by the prosecution in the trial Court. In the judgment which the learned Magistrate' passed convicting the petitioner under Section 164 read with Section 21 of the Act, he first of all, set out the facts relating', fro the parts, taken in the affair by the' Manager of the Madhuting Tea Estate, and B.K. Banerji and Messrs. Midlands Bose and Co. Having done so, he stated1 the facts that the accused received the coolies illegally as the emigrating agent B.K. Banerji had no license for recruitment of coolies and that the accused' forwarded the said coolies from Amingaon to the Madhuting Tea Estate.
6. The learned Magistrate then stated in his judgment that the accused must have been well aware that the Madhuting Tea Garden had sent no licensed recruiter for recruitment of the coolies and thereafter he recorded a finding to the effect that no recruiting sardar accompanied the coolies to Amingaon and that when the accused dispatcher them from Amingaon no garden sardar was sent along with the coolies. Prom these findings the learned Magistrate ultimately recorded a general finding to the effect that the accused took part in the illegal recruitment with full knowledge that the recruitment was illegal. Reading the judgment of the learned Magistrate as a whole, it seems to me that he did not keep in view the distinction between the-different kinds of offences that are contemplated by Section 164 of the Act. That section runs in there words:
Whoever knowingly recruits, engages, induces, or assists or attempts to recruit, engage, induces or assist any person to emigrate in contravention of any of the provisions of this Act, etc.
7. If the case that was put forward against the petitioner in the petition of complaint was to be adhered to, the only question which the Magistrate had to determine was whether the petitioner had assisted in the emigration of the coolies because the petition of complaint read with the history of the case did not refer to any abetment on the part of the petitioner in the recruitment itself. Emigration is defined in Section 2, Clause (e) of the Act and whether the definition confines the meaning of the word to the departure of the coolies from a particular point or whether emigration consists in the entire process of the journey made by the coolies from the point from which they depart till they reach the garden for which they are recruited, it is quite clear that the process of emigration is entirely different from the process of recruiting and Section 164 makes that distinction perfectly clear, for it says 'recruits any person to emigrate.' In my opinion, there can be no question that the process of recruiting must terminate before the process of emigration begins. The learned-Magistrate does not appear to have kept 'this distinction in view at the time when he convicted the accused. One thing, therefore, is quite clear that it was not possible for the petitioner to ascertain with any degree of precision what exactly 'was the case that he had to meet at the trial that was held against him. Assuming, however, that the word 'recruitment' has been used by the learned Magistrate In his judgment in a general sense and as not different from the word 'emigration' but as consisting of one and the same process, the learned Sessions Judge, it appears, in dealing with the case, had confined his attention entirely to the recruitment that was made of the coolies. Para. 2 of the learned Sessions Judge's judgment makes this point perfectly clear. What the learned Judge says therein is this and here I quote his own words from his judgment:
It is common ground that the recruitment was illegal and that the appellant assisted in such recruitment. It was argued that there was no evidence that he did so knowingly. The learned Public Prosecutor pointed out in reply that there is no evidence that any competent or approved person within the meaning of Section 44 (Section 76) of the Act accompanied the party. It being admitted that no garden sardar accompanied them and the nature of the, escort being a matter particularly within the observation of the appellant, if, only for his own protection, I hold there is sufficient ground for finding that the appellant knew the labourers to be illegally recruited.
8. Now, it is clear to my mind that the learned Sessions Judge was convicting the accused of having abetted the illegal recruitment of the coolies knowing that such recruitment was illegal. To this view, there are two objections. In the first place, that was not the case upon which the accused was tried, the case against him having been, as I have already stated, one of assisting in the emigration of the coolies; and secondly, if emigration or assisting in the emigration be taken as forming an abetment of the offence of illegal recruitment, then it cannot be an abetment which is contemplated by Section 213 of the Act, for it is clear that this is not a form of abetment an abetment after the fact which the Indian Penal Code takes cognizance of. Section 213 expressly refers to abetment as meant by the Indian Penal Code, For these reasons, I am of opinion that there has been no proper trial of the case as against the petitioner nor have any facts been established which would call for any further trial of the petitioner. The rule should, in my opinion, be made absolute and I order accordingly The conviction of the petitioner and the sentence passed on him are set aside and the fine, if paid, will be refunded.