1. The petitioners were convicted on the 6th June, 1923, by the District Magistrate of Chittagong under the provisions of Section 147, I.P. Code, and sentenced to varying terms of imprisonment and they were all bound down under the provisions of Section 106, Crim. Pro. Code. They appealed to the District Judge but their appeals were dismissed on the 5th September, 1923. This Rule was granted against their conviction and sentence on the 27th September 1923.
2. The facts are as follows : In thana Fatikchari in the District of Chittagong, there is a hill stream called Dhurung Khal which flows from the range of hills to the north of Chittagong passing in its course through or near to the villages of Dhurung, Sundarpur and Ekkolia. The villagers of these villages had been accustomed to use the water of this stream for drinking purposes; for domestic purposes and for cultivation and also for floating down timber from the bills. The stream in the rainy season often overflowed its banks breaking through its western bank despite the erection of bundhs from time to time. As a result the villagers on the lower reaches of the stream suffered from scarcity of water. Proposals for the erection of a strong bundh to prevent the overflow on the western bank were considered from time to time, but nothing was done, and eventually the old bed of the stream was dried up owing to the water escaping through the breach on the western bank, Certain persons, amongst them one Enayet Ali Chowdhuri, got settlement of the old bed of the stream and cultivated it, but the settlement was made on terms that if steps were taken to make the stream flow in its old bed it should be vacated.
3. Ultimately a sum of Rs. 11,000 was raised by public subscription and a bundh was erected on the western bank in 1918 and the stream flowed once more in its old bed. The erection of the bundh was made with the approval of the then Collector and under the supervision of the District Board Overseer. During the rains of 1918 a breach occurred on the eastern side of the stream and a road was damaged. Proceedings under Section 133 were accordingly instituted against the persons who had erected the bundh for its removal, and during the pendency of these proceedings, a civil suit (No. 90 of 1918) was instituted against the 1st and 2nd parties in the Section 133 proceedings claiming rights in the flow of water along the old bed of the stream, for its maintenance and for keeping the bundh intact. An order was passed in the Section 133 proceedings in July, 1919 for removal of the bundh within 7 days, but this Court stayed the proceedings pending the decision of the Civil suit. The Secretary of State was made a party in the Civil proceedings and ultimately the suit was decreed and a perpetual injunction granted against all the defendants including the Secretary of State, the right of the plaintiff being established to divert the flow of the stream into its old bed. Subsequently the order under Section 133 directing j the removal of the bundh was set aside by this Court. The Secretary of State appealed against the decree in the civil suit and a compromise decree was passed on the 17th March, 1921, providing (1) for the re-excavation by the plaintiff of the old bed of the stream, some part of the work to be done before 31st March, 1921 and for the erection by them before 30th April, 1921, of a bundh on the eastern side of the stream in accordance with the District Engineer's report, (2) that if the work of excavation and of bundhing the eastern bank was not completed by 30th April, 1922, the injunction would be cancelled and the respondents (that is, the plaintiffs in the suit) would raise no objection to the defendants or any other person cutting the western bundh and bundhing the eastern bank. In June 1922 the bundh on the eastern bank was damaged and one of the defendants in the Civil suit applied to the Collector of Chittagong for permission to remove the western bundh. The Collector on the 21st June, 1922, directed the khas Tahsildar to enquire and report and as a result of his report passed an order on the 29th June in the following terms:
29th June, 1922, Bead reports of the khas Tahsildar Rouzan and the solenama in accordance with which the District Judge decreed the appeal on 21st March, 1922. It is clear that the conditions had arisen which authorise the defendants without objection by the Opposite Party to cut the western bundh. I am informed that in spite of this, opposition from the Opposite Party is apprehended. The very heavy rains of the past week makes this a very urgent matter. Issue order under Section 144, Cr.P.C., to Abdul Bari Chowdhury, Jugabandhu Moharer and Ahmed Ullah Chowdhury and to the public generally to abstain from interfering when the western bundh is cut. Serve it through Sub-Inspector, Fatikchan and tell him to be present when the bundh is cut.
(Sd.) L. Birley,
4. This order has been spoken of as an order by the District Magistrate directing the bundh to be cut. This in terms it is not, but I am inclined to think that in effect it really amounts to such an order for the District Magistrate, who in his capacity as Collector represented the Secretary of State in the Civil suit and who was in effect a party thereto, was taking upon himself to construe the consent decree of the Civil Court and to say, that the circumstances had arisen which justified the dissolving of the injunction of the Civil Court and the cutting of the western bundh. In my view the District Magistrate had no right to usurp the functions of the. Civil Court in this way, the injunction was still subsisting and could only be dissolved by the Court which granted it, and it was this Court alone which could construe its own decree and say whether the circumstances had arisen which would justify the dissolution of the injunction and the cutting of the bundh. The fact that he may have acted on the advice of the Government Pleader as to the construction of the consent decree cannot make his order a legal one in the view I take. The District Magistrate's order was served on the Amlas of Abdul Bari Chowdhury as he was away and they and Ahmed Ullah Chowdhury on the 4th July, 1922, petitioned the District Magistrate to keep his order under Section 144, Cr. P. Code, in abeyance until the eastern breach wan repaired. This he refused to do relying on the report of the khas Tahsildar. In the result a riot took place about noon on the 4th July, for when Enayet Ali Chowdhury and his party accompanied by the Police proceeded to cut the western bundh they were resisted by the villagers who were interested in its preservation assisted by other persons of neighboring villages. One of the villagers was killed in the riot and persons of both parties were injured.
5. In the result criminal proceedings were instituted and the petitioners before us were convicted. Two common objects were stated in the charge, (1) enforcing by means of criminal force or show of criminal force a right or supposed right in respect of Dhurung bundh which had been ordered by lawful authority to be cut, (2) compelling by means of criminal force or show of criminal force the persons concerned in cutting the bundh to omit to cut the bundh which cutting they were legally entitled to do. Three points were urged before us on behalf of the petitioners, (1) illegality in procedure, (2) that the maintaining the bundh was not illegal, but as of right as injunction had not been dissolved and that therefore there can be no conviction, (3) that the persons who came to cut the bundh were not entitled to do so and that there was therefore no offence it being said that the District Magistrate's order, if it was an order to cut the bundh, was an illegal order as it was not made under Section 133, Cr.P.C. and that it could not be made under Section 144, Cr.P.C. In addition various minor criticisms were directed against the form of the order. It was further urged that if the order under Section 144 was not an order to cut the bundh, then no one had any authority to do so on 4th July, 1922, in face of the order of the Civil Court and that the conviction cannot stand and that it cannot be sustained by saying that there was disobedience of the Magistrate's order having regard to the common objects named in the charge, disobedience of the Magistrate's order not being one of these. It is not I think necessary to decide in the circumstances of the case whether an order to cut a bundh could be lawfully made under Section 144, for this was not in terms of the Magistrate's order. In the result there was no order in express terms to out the bundh and no one was entitled on the 4th July, 1922, to out the bundh in view of the Civil Court's injunction which was subsisting on that day, and this being so, neither of the common objects set out in the charge have been or could be established with the result that the conviction of and sentence passed on the petitioners must be set aside and their bonds and bail bonds will be cancelled.
6. I agree that the Rule must be made absolute. The ultimate cause of this disturbance was, in my opinion, the loose language of the petition of compromise which was embodied in the decree of the District Judge. It created the impression that in certain events the western bundh might be demolished without any further order of the Court. This view, as my learned brother has pointed out, is incorrect. Then again both Courts below seem to have treated Mr. Birley's order as an order to cut the bundh. This, in terms, it was not. It was an order under Section 144 of the Code of Criminal Procedure forbidding interference with the cutting of the bundh when this was done by persons not acting under his order. A mob, among which were the present petitioners, attacked the Police who were seeing to the enforcement of the order. But so far as the efforts of the assailants were directed to saving the bundh from destruction these persons were not an unlawful assembly; and since the common objects set out in the charge are limited as they are, the convictions cannot be supported.