1. In this case a rule was isued on the District Magistrate of Khulna and on the opposite party Amulya Ratan Kanjilal to show cause why the conviction of the three petitioners Kali Das Mukherjee, Bimal Kanti Chakravarty and Karnadhar Roy Mondal and the sentences passed on them should not be set aside.
2. The charges against the three petitioners one were Under Section 147, and the other Under Section 427, Penal Code. They were charged for that on 28-3-1913, at Lockpur Bazar under police station Jakirhat in the Bagerhat sub-division of Khulna district; they were members of an unlawful assembly the common object of which was to loot the cutchery, demolish the privy and erect fencing on the land of the cutchery belonging to Kai Bahadur Sailendra Nath Ghose and others on settlement plots No. 879, 878, 881 find 883 of Mouza Lockpur and in prosecution of that common object committed an offence of doting and thereby committed an offence Under Rule 147, Penal Code. They also stood charged that on the same day and at the same place they committed mischief to the extent of about its. 300 by demolishing the privy attached to the cutchery on plot No. 878 in the lawful possession of Kai Bahadur Sailendra Nath Ghose and others and thereby committed an offence Under Rule 127, Penal Code.
3. The origin of the incident which forms she subject-matte of the present proceedings is a quairel between Rai Bahadur Sailendra Nath Ghose and his rival landlord Babu Dhirendra Nath Ghose over the Lockpur new fiat which lies to the east of the District Board Road. Babu Dhirendra Nath Ghose does not lay any claim to the old hat which lies to the west of the District Board Road but the dispute has arisen in connection with the new hat which the Rai Bahadur is establishing over plot No. 879 of the cadastral survey map on which plot the new cutchery is located and its adjacent plots. It is claimed on the side of the prosecution that as a result of this dispute in the early hours of the morning of 28-3-1945 the incident complained of actually took place. The petitioners were tried by Mr. S.C. Mukherjee, a Magistrate of the first class at Bagerhat and were convicted Under Sections 147 and 427, Penal Code. The two petitioners Kali Das Mukherjee and Bimal Kanti Chakravarty were sentenced to a fine of Rs. 200 each while the third petitioner Karnadhar Roy Mondal was sentenced to concurrent terms of six months imprisonment under each of the two Sections. On appeal the learned Sessions Judge reduced the sentences of fine passed on the two petitioners Kali Das Mukherjee and Bimal Kanti Chakravarty to a fine of Rs. 150 but maintained the sentence of rigorous imprisonment imposed on the petitioner Karnadhar Roy Mondal.
4. The first point that has been taken by Mr. N.K. Basu in his argument on behalf of the petitioners relates to the local inspection which was held by the trying Magistrate. The order sheet shows that on 4-12-1945 both the parties prayed to the Magistrate to hold a local inspection and he arranged to visit the place of occurrence on the morning of 9-12-1945 in the presence of both parties. He actually did hold the inspection on the date fixed in the presence of both parties and their lawyers and he recorded a memorandum of inspection which is dated 12-12-1945, at the foot of which he recorded an order directing that it was to be shown to the lawyers of both parties on that day. On 15-12-1913 the order, sheet shows that he heard further arguments of both sides on the basis of the memorandum of local inspection. Thereafter he adjourned the case for consideration and then passed orders on 2-1-1946. Mr. N.K. Basu on behalf of the petitioners claims that by his action the learned Magistrate contravened the provisions of Section 539B, Criminal P.C. which governs local inspections. That Section records that any Judge or Magistrate may at any stage of any enquiry, trial or proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view 'for the purpose of properly appreciating the evidence given on such enquiry or trial' and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. Mr. N.K. Basu claims that 'the only purpose for which a Magistrate may hold a local inspection is for the purpose of understanding evidence which has actually been recorded. He has no power in such local inspection to obtain information which did not appear from the evidence of the witnesses. If he holds a local inspection for the purpose of obtaining such further information then he ceases to be a Magistrate appreciating the evidence which has already been given but turns himself into a quasi-investigating officer and as such ought to put himself forward as a witness and submit to examination and cross examination as to the facts which he says he observed. The answer to this argument must be that the Magistrate in this case was not holding a local inspection for the purpose of ferreting out fresh evidence in the case. There is already on record in the evidence of one of the defence witnesses Nur Baksha Bakshi, D.W. 4 a statement in cross-examination to the effect that 'The plinth was about 2 ft. in height and the concrete base was about 1 1/2 ft. in breadth'. Remembering that this evidence had been given before him we do not think that any fault can be found with the learned Magistrate if he had the earth scraped away in order to see whether as a matter of fact there really was any concrete base for the privy.
5. It was hinted that the learned Magistrate's judgment in view of the contest between the rival zamindars and the position of the witnesses as being tenants of one or the other was largely based on what he found in his local inspection and as this inspection was not justified Under Section 539B, Criminal P.C., the finding based on it ought not to be maintained. We have already seen that the learned Magistrate was merely holding the inspection to appreciate evidence already on record and moreover as the judgment shows he did not rely entirely on what he found at the local inspection with regard to the concrete base of the privy but also relied on the evidence of other witnesses and in particular we might mention the evidence of P.W. 7, the commissioner and D.W. 13, the police officer who also deposed to relevant facts. We do not think therefore that there is any substance in this submission made by Mr. N.K. Basu.
6. The second point that has been made by Mr. N.K. Basu is that the judgment of the learned Sessions Judge is vitiated inasmuch as he took into consideration a piece of evidence which ought not to have been brought on the record. He is referring in this connection to Ext. 41, a General Diary entry, which he claims should not have1 been admitted in evidence in the absence from the witness-box of the constable who gave that information. It is true that this entry in the general Diary was improperly admitted in evidence. At the same time if that part of the judgment of the learned Sessions Judge in which he makes a reference to this piece of evidence be scrutinized it will be seen that he does not rely on it exclusively as a finding that there actually was a new fence erected around certain of the plots of the locality. The learned Sessions Judge observed that it is abundantly clear from the evidence in the case that originally there was no fencing in existence around settlement Plots No. 878, 879, 881 and 883. From the evidence of the complainant's witnesses and the police officers P.W. 2 and D.W. 12 and 13 it is quite clear that on the day before the occurrence there was no fencing in existence and the District Magistrate stated in his deposition that when he went to the land on the day after the occurrence that is on 29-8-1945, the fencing appeared to him to be new. The General Diary entry was used by the learned Sessions Judge as corroborative evidence that a fencing had been set up in the night of occurrence by the men of Dhiren Babu. If it be ruled out of consideration, there is still the evidence to which reference has been made which in our opinion is quite sufficient to establish that there actually was a new fence erected on the night of the occurrence.
7. The last point that has been urged by Mr. N.K. Basu is that the conviction Under Section 147, Penal Code cannot be maintained and that, at the most the petitioners can be convicted of an offence Under Section 143, Penal Code. Mr. N.K. Basu argues that there is no evidence to show that any force was used to any person in prosecution of the common object of the assembly and therefore no offence Under Section 147, Penal Code has been committed. The answer to this argument must be that Section 146 of the said Code says that when force or violence is used by any member of an unlawful assembly in the prosecution of its common object, then each and every member of that assembly is quilty of an offence of rioting. The force and violence used have not to be defined as meaning force and violence only to persons but also cover inanimate object. There is thus no force in this submission of Mr. N.K. Basu.
8. There is therefore no reason to interfere with the conviction of any one of the three petitioners. With regard to the petitioners, Kali Das Mukherjee and Bimal Kanti Chakravarty who have each been sentenced to a fine of Rs. 150 only or in default to rigorous imprisonment for four months we see no reason to interfere. The case of Karnadhar Roy Mondal has been differently treated. The learned Magistrate when awarding sentence speaks of Kali Das Mukherjee and Bimal Kanti Ghakravarty as being but tools in the hands of their master Babu Dhirendra Nath Ghose who simply carried out the orders of their master who was not an accused in this case. For that reason he thought that the ends of justice would be satisfied if he sentenced them to a fine and not to a substantive term of imprisonment. Karnadhar Roy Mondal was said to be at the root of all these troubles and as he was a poor man the Magistrate did not think it proper to sentence him to pay a heavy fine and o he sentenced him to imprisonment. If Kali Das Mukherjee and Bimal Kanti Chakravarty an be described by the learned Magistrate as simply pawns in the game we do not see why his description cannot also be applied to Kamabar Roy Mondal, a poor man obviously set up o play his particular part in the incident. We therefore see no reason at all to distinguish between his case and that of the other petitioners.
9. Accordingly we uphold the conviction of all the petitioners. We affirm the sentences passed on the two petitioners, Kali Das Mukherjee and Bimal Kanti Chakravarty. We set aside the substantive term of imprisonment imposed on Karnadhar Roy Mondal and sentence him also to pay a fine of Rs. 150 Under Section 147, Penal Code and Rs. 150 Under Section 427 of the Code or in default to undergo rigorous imprisonment for four months on each count, the sentences to run concurrently. The Rule is disposed of in these terms. The petitioners will now pay the fines required of them or in default undergo the term of imprisonment imposed in lieu thereof. The order for compensation will stand.