D. Chatterjee, J.
1. The petitioners in this case are two brothers. They admittedly belong to a most respectable family of zemindars, the Bose Chowdhries of Bahar. They are both legal practitioners, the elder, Kali Prasanna, having extensive criminal practice at Munshigunge where he mostly resides, the younger, Kali Kumar, mostly living at Bahar in the family residence, and looking after the family properties. The Bahar family has now split up by successive partitions and the several branches have been admittedly at loggerheads. The members of several branches have made a common cause against the accused and supported the prosecution by their evidence. The petitioners had special enmity with Rai Abhoy Churn Mitter Bahadur, a retired military contractor of great wealth, and the learned Magistrate says the struggle with Rai Abhoy Mitter Bahadur over the chur lands has been long and bitter, and the Rai Bahadur's influence is plainly visible in the present case. The police officers, especially Chinta Hari Dutt, Sub-inspector of Rajabari thana, from March 1906 till June 1909, and Inspector Kalipada Mookerjee have generally espoused the Rai Bahadur's side.' It is clear, therefore, on the finding of the learned Magistrate himself, that this public prosecution has been supported by persons more or less interested in the downfall and humiliation of the petitioners. It is notorious that accusations under this section are constantly made with the object of blackening an enemy's character and of satisfying feelings of spite and hatred, and the Magistrate cannot be too cautious in making sure that provisions intended for securing the peace of the community are not utilized for wreaking private vengeance under the aegis of a Crown prosecution.
2. It appears that on the 27th of February 1909 the petitioner, Kali Prasanna, saw the District Superintendent of Police, Mr. Webb; and complained to him that the local police officers had combined with his enemies and were trying to humiliate him in various ways. He was directed to make a written representation, and he did this by a petition dated the 9th March 1909. The Sub-inspector, Babu Chinta Hari, on the 24th of May, 1909 made a report endorsed by the Inspector, Babu Kali Prasanna Mookerjee, that the petitioners were men of imitative and desperate character, and have an earnest desire of increasing their landed property by force. Whenever any land is accreted in any place, in or near any mouza in which they have got some share, they always come forward with a claim to it, whether valid or not, and try to get the whole of it into their possession by driving out any person who might have taken possession of it beforehand be means of criminal force in short they cannot remain in peace without quarreling with their equals and oppressing the weaker ones. On this report there is hardly any element of Section 110 of the Criminal Procedure Code. However, the police mentioned a large number of cases in which the accused are said to have been implicated, and asked for a proceeding under Section 110 Clauses (e) and (f), and such a proceeding was in fact initiated against them, and they have been bound down for three years in heavy recognizances and sureties. They have furnished the security and given the required bonds; and they obtained this Rule on three grounds; (i) that the Magistrate has relied on matters occurring many years ago, (ii) that the petitioners have not been convicted of or charged with any offence involving a breach of the peace, (iii) that the Magistrate has refused to examine certain witnesses tendered for examination.
3. On the first ground the learned Magistrate has no doubt referred to one case of 1902, one of 1903 and one of 1905; but it cannot be said that these cases were not admissible in evidence: see Wahid Ali Khan v. Emperor (1907) 11 C.W.N. 789, and if that be so the order of the Court below cannot be impeached on that ground.
4. On the second ground reliance is placed on the case of Arun Samanta v. Emperor (1902) I.L.R. 30 Calc. 366, in which it was held that 'offences involving a breach of the peace' mean offences of which a breach of the peace is an ingredient. The petitioners must be found to have habitually committed, attempted to commit or abetted the commitment of such offences. As regards Kali Prasanna it may be stated at the outset that there is no such evidence. He generally lives at Munshigunge, has a very large criminal practice there, and a very large number of respectable people of Munshigunge have deposed to his good character. If he was habitually of such a bad character as the prosecution want to make out, why was he not prosecuted until he made specific charges of misconduct against the police? He was convicted only once in 1908 under Section 150 of the Indian Penal Code and had his due punishment. If he were considered dangerous to the peace of the community in might have been bound down under Section 106 in that case, but he was not, and it is not shown that he has become dangerous since. The order of the lower Court, so far as it affects him must be set aside.
5. As regards Kali Kumar the evidence is of the following cases:
A(i). Three of his servants Mohon, Elahi and Chanda took sweets-in the Bahar bazar under his orders without paying for them. He with his lathials took fish from certain vendors in the Bahar bazar.
A(ii). His men Chanda and Akimuddi took melons from a Mahomedan woman.
B(i). He with some lathials uprooted some trees planted by Abhoy Mali.
B(iv). He with his men cut some kalai from another man's land and thus dispossessed him; he complained and the land had to be given back.
D(i). Kali Kumar assembled his lathials in a hut near the Charak puja for enforcing the performance of the puja by his own purohit.
D(iv). Kali Kumar threatened Jogendra Ghatak with violence if he deposed in favour of Hari Charan Chuckerbutty.
E(i). On several occasions Kali Kumar with his lathials in boats molested Ananda Mandal.
F(ii). He attempted to stop a marriage procession with a large number of lathials.
6. Other oases are named in which other people took the assistance of his lathials to fight their own battles.
7. No breach of the peace, however, is said to have been committed, and the parties molested never sought redress for any breach of the peace committed by him. These, therefore, cannot be said to involve a breach of the peace so that it could be said that he had habitually committed offences within the mischief of Clause (e). His only conviction is one under Section 150 of the Indian Penal Code in 1908, but that would not constitute habit. But has he habitually abetted the commitment of such offences? The story that he kept a paid body of lathials at his house at Baliar and another body at his cutcherry has been disbelieved, and the Magistrate thinks the lathials are mobilized on occasions for his fighting work. In the case on Kasi Sundar Roy v. Emperor (1904) I.L.R. 31 Calc. 419, it was held that a zemindar employing lathials to threaten his tenants and use force by unyoking their bullocks, and burning their houses for the purpose of compelling the tenants to pay enhanced rents, brought himself within the mischief of Clause (e). In the present case his naib, Hemanta, is found to have led several riots in his interest and been convicted in several cases. There is evidence that certain lathials are always employed to help his cause. The materials seem sufficient to bring him within the mischief of Clause (e) as interpreted in the case of Kasi Sundar Roy v. Emperor (1904) I.L.R. 31 Calc. 419. The order as regards Kali Kumar, therefore, must stand, and the Rule must be discharged as regards him and made absolute as regards Kali Prasanna.
8. I concur in the orders proposed by my learned brother. The cases of the two men against whom the proceedings were taken stand on a very different footing. The complicity of Kali Prasanna in the transactions on which the proceedings are founded has not m my opinion been brought home to him. In regard to Kali Kumar, however, there is, I think, ample evidence on the record to justify the taking of security from him.