Caspersz and Ryves, JJ.
1. This Rule was issued on the District Magistrate of Patna to show cause why the conviction and sentences passed on the petitioners should not be set aside on the ground that they (the zemindars' people) were acting in the exercise of their right bond fide in preventing the tenants from harvesting '-ho crops in any place other than the village khalihan.
2. We have heard learned Counsel in support of the Rule, and perused the judgments of the lower Courts. Twenty persons were originally charged, variously, under Sections 147 and 148, and under Sections 324 and 326/149 of the Indian Penal Code, and convicted and sentenced to various terms of imprisonment. Some of them were also ordered to pay fines, and all of them were bound down under Section 106 of the Criminal Procedure Code to keep the peace for one year.
3. On appeal, the learned Sessions Judge acquitted twelve and convicted eight persons. Of these, four were convicted under Section 148 of the Indian Penal Code and the remaining four under Section 147. The rest were acquitted, the fines were remitted, and the order under Section 106 was discharged. These eight persons whose convictions were upheld obtained the Rule set out in the beginning of this judgment.
4. The common object of the rioters, as charged, was (i) to prevent by force, or show of force, the. tenants from cutting the crops, and (ii) to assault them by way of punishment for having cut the crops.
5. The facts of the case, as found by the learned Sessions Judge, are as follows. For a considerable time past there has been a dispute between the tenants and the zemindars as to the nature of their tenancy, the tenants asserting that their tenancy was nugdee, whereas the zemindars asserted that it was bhaoli. The time for harvesting the crops had arrived, and the tenants had openly expressed their intention of cutting the crops and carrying them away to their houses. The friction between the parties had became so acute that two watchmen were placed on guard on behalf of the zemindars, and an urgent appeal was made to the police authorities for protection as a serious breach of the peace seemed imminent. This happened on the 16th September 1908. The occurrence, with which we are concerned, took place four days subsequently, that is, on the 20th September. In the meantime, it appears that some of the crops had been cut and left on the field. It has been found by both the Courts that the tenants held their land on the batai system. The crops, therefore, when cut, should have been taken to the village khalihan. On the morning of the 20th September, it has been found that, a large number of tenants armed with lathis went to the field With the avowed intention, of carrying away the crops, which had already been cut, to their own houses, and actually began making bundles of the harvested makai. The watchmen who had been placed there protested, and a number of the amlas of the zemindars came to the spot, armed, some with lathis and, it is said, six of them with swords. Their common intention, it is found, was to protect the zemindars' property. For a time, apparently, they were successful in preventing a breach of the peace, until one Shyama Mahton, who is described in the lower Court's judgment as 'the champion of the tenants,' interfered. According to the first informations given by one of the tenants himself, the tenants insisted on their right to 'take away the crops, and began making them up into 'bundles when the zemindars' people prevented them.' Thereupon a fight took place, and persons on both sides were injured. Some of the tenants had incised wounds, though, with the exception of Shyama Mahton, not of a severe character, which makes it more probable that some of the zemindars' amlas had swords and used them. The only severe injury to Shyama Mahton was inflicted by one Peari who has since died.
6. The learned Sessions Judge has found that the common object in the charge, on which the accused were tried, has not only not been proved, but it could not have been their object. The common object which he has found, although the accused were not charged with it, was to prevent the tenants from carrying away the crops. He has found that the tenants were the aggressors in the fight, that they had no right to take the crops to their own houses, and that both the watchmen were wounded in the fight. He goes on to say: 'Up to a limit they (the zemindars) had, no doubt, a right to prevent the harvesting in the manner intended by the tenants. But under the criminal law they were not justified in forming an assembly for enforcing that right by means of criminal force.' Earlier in his judgment, after referring to Section 81 of the Indian Penal Code, he held: 'Now in the present case, the landlords had an undoubted right to prevent their crops being so disposed of that no division could take place, which would have entailed serious loss to them and would have involved them in unnecessary litigation. The question is how far they were justified in sending a body of men to prevent the threatened invasion of their rights. If the assembly went with the intention of using criminal force more than was Accessary to prevent that, the members would be guilty of forming an unlawful assembly.'
7. There is no finding in the judgment, however, that the intention of this assembly was to use more force than was necessary, nor is. there any finding that they, in fact, did use more force than was necessary, though this may be inferred from the Judge's order convicting the petitioners. There is nothing to indicate that the common object of the assembly was to do anything more than protect their masters' property. We do not think that in protecting their masters' property they were not justified in using such force as was necessary to prevent the tenants from carrying away the crops. The only severe injury that was inflicted by them appears to have been caused, as we have said, by Peari who has died. It may be that Peari used more force than was necessary, but there is nothing to show that it was not an individual act of his, or that the assembly, which in its inception was not unlawful, became an unlawful assembly subsequently.
8. Each case of this kind must be decided on its own particular facts. The facts in this case are distinguishable from those in the case of Baijnath Dhanuk v. Emperor (1908) I.L.R. 36 Calc. 296.
9. We think that in this case, on the findings arrived at by the learned Sessions Judge himself, the Rule must be made absolute. We, therefore, acquit the accused and discharge them from their bail.