1. It appears that on the 15th of May last, a serious riot took place in the village of Amlabo, of which the petitioner is the proprietor. He himself resides at Dacca, and it is not alleged that he had personal cognizance of the occurrence. It is stated, however, and may be taken as found, that his naib or agent Madhub Rai, who, according to the prosecution has been absconding since, aided and abetted the riot.
2. The petitioner was prosecuted under Section 154 of the Indian Penal Code before the Sub-Divisional Magistrate of Naraingunge, who, on the authority of a case in the Allahabad High Court to which I shall presently refer, has Convicted and sentenced him to pay a fine of Rs. 1,000, the maximum penalty provided in that section. On the question of the part taken by the naib the Magistrate expressed himself as follows:
It is proved that he actually accompanied the rioters, and that, after the riot, he has been absconding, that the rioters were tenants of his tahsil and peons in his employ, that deceased was a man who had offended the naib in various ways by complaining against him to his landlord, by refusing to pay rent, and by encouraging one Jalil to bring a case against one of the naib's men, Abir, who had under a lease granted by the naib cultivated land in Jalils possession.' He also found that the petitioner had no knowledge of or concern in the riot.
3. On appeal the Sessions Judge affirmed the conviction. But as the naib was not on his trial, the learned Judge naturally and properly made a reservation in these terms ' He (the agent) is supposed to have abetted it (the riot), and it is possible he was present, but that is a question which has not as yet been decided.' Assuming, however, the finding of the Magistrate to be correct there can be no question that the naib was directly concerned in the riot.
4. Section 154 runs as follows: Whenever any unlawful assembly or roit takes place the owner or occupier of the land upon which such unlawful assembly is held or such riot is committed, and any person having or claiming an interest in such land, shall be punishable with fine not exceeding one thousand rupees, if he or his agent or manager knowing that such offence is being or has been committed or having reason to believe it is likely to be committed do not give the earliest notice thereof in his or their power to the principal officer at the nearest police station, and do not, in the case of his or their having reason to believe that it was about to be committed, use all lawful means in his or their power to prevent it and in the event of its taking place do not use all the lawful means in his or their power to disperse or suppress the riot or unlawful assembly.'
5. The question, which we have to decide upon the construction of the section, relates to the extent, in the circumstances of the case, of the owner's liability to punishment, in other words whether he is liable, not only for the laches of his agent, but also for his criminal acts, for logically viewed the hypothesis upon which the lower Courts have proceeded amounts to that.
6. The question so far as this Court is concerned is res integra. The passages cited to us from the judgments of Norman, J., and Prinsep, J., do not, in my opinion, afford any help in construing the section, and I think the inferences attempted to be derived from them are somewhat misleading. But the Allahabad High Court in the case of the Queen-Empress v. Payag Singh (1890) I.L.R. 12 All. 550 has held that a landlord is liable under Section 154 for the acts of commission and the acts of omission, not only of himself, but also of his agent or manager.' From this view, which is rather a sweeping generalization, I venture respectfully to dissent.
7. A cursory consideration of the section may perhaps give rise to the impression that, as the landlord is made liable for the neglect of a duty on the part of the agent, he must perforce be liable also for his criminal acts. That, as he is liable for the 'laziness' of his agents, to use the expression of the lower Courts, he must also be liable for his guilt. An analysis of the section, which unfortunately is not happily worded, and an examination of its scope and object would show, I think, that the above view is not well-founded.
8. The section declares in the first place that the owner of the land, on which a riot or unlawful assembly is committed or held, becomes punishable, if he or his agent or manager knowing that such offence is being committed or has been committed or having reason to believe that it is likely to be committed, does not give the earliest notice thereof in his or their power at the nearest police station. (It will be observed that this portion of the section is extremely comprehensive in character, and embraces not only the past and present, but also the future.) The second provision makes it punishable on the part of the owner or his agent or manager, if he or they, 'having reason to believe that a riot was about to be committed,' do not use all lawful means in his or their power to pre-vent it. The third imposes the same penalty, if in the event of a riot taking place he or they do not use all lawful means in his or their power to disperse or suppress the riot or unlawful assembly.
9. The section, therefore, contemplates three different breaches of duty.
(a) Omission to give notice.
(b) Abstention from preventing.
(c) Negligence to suppress.
10. Generally speaking vicarious punishment is not recognized by civilised systems of criminal law, at least in these days. But' the Indian Legislature, for probably sufficient reasons, has in chapter VIII of the Indian Penal Code departed in some instances from this principle and made owners of property responsible for the negligence of their agents or managers, but I do not find any indication in the law that they are liable for the criminal acts of their servants, except on the ground of abetment. In my opinion, penal provisions have to be strictly construed, nor can the liability to punishment for the neglect of a statutory obligation be extended by inferential reasoning. Unless, therefore, the law can be construed to mean that the owner, although absent and wholly unaware of the riot or its commission, should be regarded as guilty, if his agent or manager takes part in it, it seems to me difficult to hold that he is punishable under this section.
11. In the present case it is not suggested that the petitioner had any independent knowledge of the occurrence, which he refrained from communicating to the police or that he had any means of information other than through the ordinary channel, viz., his naib. If the naib himself takes part in the riot or aids and abets in its commission, he is guilty of the actul commission of the offence or of its abetment and not under Section 154, which deals with neglect of a certain duty imposed by law, and, if he cannot be made liable under Section 154, I fail to see how upon right reasoning the owner, whose means of information is dependent upon the naib and whose omission to give information must run on parallel lines with that of his agent, can be made liable under that section. It was urged that this view would enable landlords to escape punishment by putting forward suggestions regarding the actual criminality of their agents. To my mind this argument leaves out of consideration the distinction the Code itself lays down between the commission of a criminal act and the neglect of a duty. The latter is punishable with a fine only, whereas the substantive offence makes the offender liable to imprisonment, transportation for life, or even the penalty of death according to the circumstances of the case. It is hardly likely that a proprietor would try to evade the imposition of a fine by suggesting that his agent was actually concerned in the crime. Now, in my opinion, it would be straining the law to make the absent owner, who has himself no knowledge of the occurrence, liable for not giving information of the riot that has taken place, if his agent takes part in it, and, as a rioter actually taking part in it, does not, as a matter of course, give notice of it. Suppose, for example, the owner happens to be in England or some other distant country and a riot takes place on his property in which his agent is directly concerned either as an actor or abettor. Naturally no information is given by him to the police. On what principle is the owner to be made liable under the section? Is it to be for the laches of the agent? But the act of the agent has ceased to be mere laches; it has already become a crime. Or is the owner to be punished vicariously for the crime of his servant? The law does not furnish any warrant for this extreme view.
12. The notice is given at the nearest police station. Why? In order to enable the police to take immediate action to prevent or suppress the riot or to bring the offenders to justice. It is the agent on the spot, who is primarily responsible for this duty, and his failure makes the owner liable for his neglect. But a charge of neglect assumes that the agent is not directly concerned in the commission of the offence. If he is so concerned it ceases to be neglect; it is a substantive crime.
13. For these reasons I am of opinion that the conviction of the petitioner ought to be set aside, and the fine, if paid, refunded.
14. But as my learned brother is of a contrary view the case will be referred to the Honourable the Chief Justice under the provisions of Section 429 of the Criminal Procedure Code.
15. The petitioner was convioted by the Sub-Divisional Officer of Naraingunge of an offence under Section 154 of the Indian Penal Code, and sentenced to pay a fine of Rs. 1,000. The conviction was confirmed on appeal by the Sessions Judge of Dacca.
16. This rule was issued on the District Magistrate to show cause, why the conviction should not be set aside, on the ground that the facts found do not warrant a conviction under Section 154.
17. The facts found are that the petitioner is sole proprietor of village Amlabo, that a serious riot involving loss of life took place on that property, that the petitioner's naib was aware that a riot would be committed and so far from doing anything to prevent or suppress the riot, he actually accompanied the rioters and stood close by, while the riot was going on, and that he has absconded and cannot be found. For the prosecution it is not suggested that the landlord himself had any knowledge that the riot was likely to be committed. He has been convicted on the authority of the case of Queen-Empress v. Payag Singh (1890) I.L.R. 12 All. 550, which lays down that a landlord is liable under Section 154 of the Indian Penal Code for the acts of commission as well as omission, not only of himself, but of his agent or manager. In that case, as in the present one, the landlord's agent went to the scene accompanied by a great number of men and fomented the riot, in which a man was killed. We are asked to hold that that decision is wrong and does not correctly interpret the law. It is urged that the law could not intend that the landlord, living at a distance from the scene of disturbance, should be punished for the criminal acts of his agent. Admittedly the law punishes a landlord for the culpable negligence of his agent. There is nothing in the words of the section under consideration from which it can be gathered that a distinction is to be drawn between an agent's acts of omission and of commission so far as the landlord's amenability to punishment is concerned.
18. There is no reported case in this Court exactly in point. From some observations of Norman, J., in The Queen v. Surroop Ghunder Paul (1868) 12 W.R. Cr. 75 it may be inferred that the accused in that case would not have been held guiltless, if the finding of the first Court had stood, viz., that hired lathials were members of the unlawful assembly, some of them actually engaged as combatants on the side of the Paul defendants. It was observed that 'there would be no doubt that the finding that such men were retained would have been quite sufficient to justify the inference that the zemindars and their agents, so far from using all lawful means in their power to prevent the riot had made preparation before-hand to enable their faction to take an active part in it.' So that a criminal act on the part of an agent, viz., the employment of hired lathials to take an effective part in the riot, was held sufficient to bring the zemindars within the purview of Section 154 of the Indian Penal Code.
19. In the case Tarahant Dass v. Empress (1900) 4 C.W.N. 691 Prinsep, J. in upholding the conviction of an absentee landlord under Section 154 on account of the negligence of his local agent added the observation that, 'There is much reason to believe that the riot was promoted in the interest of the zemindar.' So that the learned Judge was evidently of opinion that active promotion of the riot by the landlord's agent would not excuse the londlord from being penalised under the section.
20. If the law were interpreted as the learned Counsel for the petitioner contends that it should be, it would always be easy for the landlord to procure immunity by creating evidence enough to raise a doubt as to his agent's criminality.
21. In cases under the cognate Section 155, where a riot is committed for the benefit of the landowner, the connivance of the local agent, who fails to perform the duty imposed upon him by law, must, from the nature of things, be generally suspected, even where it cannot be proved. The contention raised on behalf of the petitioner, if pressed to its logical conclusion, would under such circumstances render it illegal, or at all events unsafe, to punish the landowner, and so the law would become a dead letter.
22. The provisions of the law are doubtless of a somewhat exceptional nature, but, as I observed before, there is nothing in them which differentiates between cases of active connivance and of mere passive negligence on the part of an agent, and the Courts cannot impose a distinction which does not exist and could not in my opinion, have been intended.
23. I would, therefore, discharge the Rule.
24. Owing to the above difference of opinion the case was referred under Section 429 of the Code of Criminal Procedure to Mr. Justice Rampini.
25. This is a reference under the provisions of Sections 429 and 439 of the Criminal Procedure Code, which was referred to me in consequence of a difference of opinion between Ameer Ali and Pratt, JJ.
26. The case out of which the reference arises is one in which a zemindar of the Dacca District, Kazi Zeamuddin Ahmed, has been convicted of an offence under Section 154 of the Penal Code and sentenced to pay a fine of Rs. 1,000.
26. The facts of the case as set out in the judgment of the Magistrate are as follows:
The accused is the proprietor of village Amlabol in the thanah of Raipura, and one Madhub Rai was his naib in that village and one Ram Charan has been a refractory tenant of that village.
27. On the 15th of May (1900) a large body of tenants and peons of Amlabo kachahri armed with sulfies, koches daos and lathis pursued Ram Charan to his brother's house and dragging him out of the hut, mortally wounded him and severely wounded his two brothers. Madhub Rai accompanied the rioters and stood close by, while the riot was going on.
28. Several accused were committed to the Court of Session and sentenced by that Court to long terms of imprisonment in that case. Certified copies of the commitment orders and of the order of the Sessions Judge have been filed in this case. The facts are also proved by the evidence of the witnesses examined by the prosecution in the case, and evidence is further adduced that Madhub Rai has since the occurrence been absconding, though proclamation has issued against him and his property has been attached.
29. As is usual in cases of this nature there can be no doubt as to three of the elements of the offence. It is admitted that accused is a 16-anna proprietor of the property, and it is clear that there was a riot of a most serious nature, and that neither the proprietor nor his agent, Madhub Rai, did anything to stop it.
30. For the prosecution it is not suggested that the landlord had any knowledge that this particular offence was likely to be committed. The question for decision is whether the zemindar's agent had any such knowledge. The answer can only be in the affirmative. It is proved that he actually accompanied the rioters, and that, after the riot, he has been absconding; that the rioters were tenants of his tahsil and peons in his employ; that deceased was a man, who had offended the naib in various ways--by complaining against him to his landlord, by refusing to pay rent and by encouraging one Jalil to bring a case against one of the naib's men, Abir, who had, under a lease granted by the naib, a cultivated land in Jalil's possession.
31. On these facts the Magistrate convicted the accused under Section 154 of the Penal Code, and sentenced him to pay a fine of Rs. 1,000.
32. On appeal to the Sessions Judge his appeal was dismissed. The case then came in revision before a Bench of this Court, consisting of Ameer Ali and Pratt, JJ.
33. These learned Judges have differed in opinion as to the propriety of the conviction.
33. Mr. Justice Ameer Ali is of opinion that the conviction should be set aside on the ground that an owner or occupier of land can only be held liable under Section 154 of the Penal Code for acts of omission and laches on the part of his agent and not for criminal acts committed by him. Mr. Justice Pratt, on the other hand, considers that there is nothing in Section 154 of the Indian Penal Code, which justifies the inference that any such distinction is to be drawn between an agent's acts of commission and his acts of omission, and relying on the authority of a ruling of the Allahabad High Court in Queen-Empress v. Payag Singh (1890) I.L.R. 12 All. 550 he would affirm the conviction and discharge the rule.
34. It is to be noted that both the learned Judges are agreed that knowledge on the part of the owner or occupier of the land of the acts or intentions of the agent is not an essential element of an offence under Section 154, and that he may be convicted under the section, though he may be in entire ignorance of the acts of his agent or manager.
35. In this case it is of course not found or even imputed against the accused, that he had any personal cognizance of the riot, at which his agent Madhub Rai was present.
36. I have had the advantage in this case of hearing Mr. W.C. Bonuer-jee on behalf of the accused. Mr. Bonnerjee supports the view of Mr. Justice Ameer Ali that under Section 154 of the Penal Code an owner or occupier of land can only be held responsible for the acts of omission of his agent, and contends that, when his agent or manager commits any criminal act such as rioting, or abetting a riot, then, as the agent is punishable under the criminal law, the owner or occupier of the land, the principal of the agent, is absolved from all liability to the provisions of Section 154. He further argues that the case of Queen-Empress v. Payag Singh (1890) I.L.R. 12 All. 550 has been wrongly decided.
37. It is clear that the case of Queen-Empress v. Payag Singh (1890) I.L.R. 12 All. 550 is a direct authority for the view taken by Mr. Justice Pratt, for there it is said: 'The knowledge of the owner or occupier in cases of this kind is immaterial. He is liable for the acts of his commission and the acts of omission, not only of himself, but of his agent or manager. Payag Singh's karinda, so far from using all lawful means in his power to suppress the unlawful assembly, took all unlawful means in his power to encourage it. We convict Payag Singh under Section 154 of the Indian Penal Code.
38. I am unable to see that this decision of the Allahabad High Court is incorrect, and I agree with Mr. Justice Pratt in thinking that there is nothing in the terms of Section 154 of the Penal Code, which justifies the distinction drawn by Mr. Justice Ameer Ali and Mr. Bonnerjee between acts of commission and acts of omission on the part of the landowner's agent. Mr. Bonnerjee contends that though the section itself does not expressly lay down any such rule, it intends to do so, and that such a distinction should be drawn, because when an agent commits a criminal act he is punishable under the criminal law, and the law is satisfied, and does not demand another victim. But this does not seem to me to be the intention or the meaning of Section 154. There seems to be no ground for holding that Section 154 is intended to punish the landholder, when his agent has not rendered himself liable to the criminal law, and that when the agent has done so, then his liability is at an end. On the contrary, the provisions of Section 154 appear to me to be intended to impose on nonresident landholders and their agents the duty of maintaining the public peace and preventing unlawful assembly and riots on their estate, and to render the former liable for any dereliction in the discharge of this duty.
39. Mr. Justice Seton Karr has observed in Queen v. Hurnath Roy (1865) 3 W.R. Cr. 54:
A zemindar by leaving his estate and residing at the Presidency cannot avoid his duties and liabilities, and it is his business to appoint fit and proper persons to manage his local affairs, and to enable him to perform the duties imposed on him by the Legislature. Moreover, it is the zemindar's duty to be regularly acquainted with all that goes on in his zemindari.
40. In these circumstances I cannot see why an owner or occupier of land should be responsible only for the acts of omission of his agent, and should not be held responsible for his acts of commission, which are of a more serious nature, and generally attended with graver consequences than mere acts of omission.
41. There appears to me to be no principle of criminal law that Justice should be satisfied with one victim and that, when a landowner's' agent renders himself amenable to the law, his principal should go free.
42. It is true that the provisions of Section 154 are of a very exceptional nature, and may in some cases, work harshly. Mr. Justice Ameer Ali puts the hypothetical case of a landowner going to England or some distant country, and asks, if he is still to be liable to punishment under Section 154. It is to be presumed that Mr. Justice Ameer Ali means to ask, whether he would be liable on his return to the district, in which his estates are situated, for the local Courts of this country would have no authority over him as long as he resided in England. In such a case, no doubt, if the landowner had been long away from his estates, and had not intentionally visited the distant country to free himself from the responsibility for criminal acts committed on his estates by his agents in his absence, the provisions of Section 154 might work harshly. But it does not follow that the provisions of Section 154 would be held applicable in such a case, for In the matter of Radha Nath Chowdhry (1880) 7 C.L.R. 289 a lenient and reasonable interpretation was put on the terms of Section 164. In this case it was said, 'we are disposed to think that a non-resident partner or co-sharer cannot be convicted in addition to the resident sharer under Sections 154 and 155. If the resident sharer brings himself under these sections, it is right he should pay the fine, which would be a fine on the sharers, but to impose a fine on an absent sharer in addition, who has taken no active part in the management of the estate, seems to us to be unduly stretching the law.' The accused in the present case, however, is not a non-resident partner or co-sharer within the meaning of this ruling. He resides in the town of Dacca the principal city of the district, in which his estates are situated. His estates are not more than two days' journey by walking from Dacca. By railway or steamer the journey is a shorter one. He is the sole proprietor of the land, which was managed for him by his agent Madhub Rai. His agent obviously instigated and was present at a most serious riot, which ended in the loss of a man's life. In these circumstances, I cannot doubt that the applicant is amenable to the provisions of Section 154 and has been properly convicted and fined under that section.
43. I accordingly discharge this rule.