1. This is a Rule calling upon the opposite party to show cause why the order of the Sessions Judge of Backer-gunj, dated the 29th of October 1918, declaring that the order made by the trial Court under Section 522, Criminal Procedure Code, should be treated as void, should not be set aside on the 7th and 8th grounds mentioned in the petition or why such other order should not be made in the matter as may seem fit.
2. The circumstances of the case leading up to the order under consideration are shortly these. In execution of a rent decree against Atabaddi ' Howladar, Akram Ali Howladar, and several others, Howla Mohamad Ghazi was sold and purchased by Armada, 0 bar an Singh and his cousin Chandi Charan Singh on the 29th of November 1915. Ali Asrab, opposite party No. 1, is the son of Atabaddi, since deceased. The com-plainant Majid Ali Sarkar is a servant of Annada Singh. The homestead of Atabaddi Howladar and Akram Ali Howladar was included in the Howla. The purchasers seem to have met with considerable opposition in Court from the judgment-debtors but afterwards succeeded in obtaining an order for delivery of possession from the Munsif. Apprehending that the proceedings for delivery of possession might lead to a breach of the peace, the Munsif ordered on the 13th of October 1917 that the writ for delivery of possession should be executed with the Sid of a Police force. Thereupon on the 5th of November 1917 the Civil Court peon went to the spot with the writ for delivery of possession. A force of six armed Constables under one Havildar and one Subadar was deputed to help him. What the peon did there may be gathered from bis report, dated the 6th of November 1917, submitted to the Court. In this report the peon stated that he went to the spot with the assistance of the Police, published the parwannah and put the purchasers into possession in the usual way by beat of drum, There are no grounds for questioning the correctness of this report and the Court below' does not say that the peon did not do what he stated in the report that he had done.
3. The divergence between the prosecution and defence stories may be said to begin from here. It is alleged on behalf of the prosecution that on the 5th of November 1917 the auction-purchasers obtained actual possession, that the judgment-debtors with their family and goods left the bari and removed to another bari, taking down one of the huts and agreeing to remove the others within 3 or 4 days that on the 6th of November the auction-purchasers erected a new hut on the site of the old hut thus removed, and this hut was occupied by the guards placed in the bari by the auction- purchasers and One Constable also remained there to keep the peace, that two other huts were removed shortly after and re-built in the new bari to which the judgment debtors had removed, that on the 10th of November 1917 Atabaddi Howladar and Akram Ali Howladar with their sons Asrab Ali and Ali Akbar and a Dumber of others forcibly entered the bari armed with lathis and spears and threatened to beat the auction-purchasers' men unless they left the bari, that they re entered the old huts which still stood in the Saw, that information was lodged at the Thana and the Sub-Inspector took op the investigation of the case on the, 25th of November 1917 and arrested Atabaddi and Akram Ali, that after the Sub Inspector had left the bari the accused-opposite party with a number of men' armed with lathis and sarkies attacked and wounded the men of the ^notion purchasers and thus regained possession of, the bari. There can be no, doubt that it was a most determined attack and the men of the auction purchasers were severely wounded.
4. The accused opposite party were on these facts charged with rioting and various other offences and in the result Ali Asrab was convicted under Section 148 and 324, Indian Penal Code, Karamat Ali was convicted under Sections 147 and 323, Indian Penal Code, and they were sentenced respectively to 7 months and 5 months rigorous imprisonment on each charge, the sentences to, run concurrently; accused Islam Farazi and Azizur Rahaman were convicted tinder Section 147, Indian Penal Code, only and sentenced to 4 months' rigorous imprisonment each. The Magistrate also passed an order under Section 522 of the Criminal Procedure Code restoring Annada Singh and Chandi Singh to the possession of the bari.
5. On appeal the learned Sessions Judge was of opinion that on the 5th of November 1917 the auction-purchasers had not obtained actual possession, that the judgment-debtors did not leave the bari on that day as alleged by the prosecution nor, did they remove any of the huts, that the story of the auction-purchasers erecting a new hut in the bari or placing their guards in it was untrue, that the defence story that they were given h days by way of grace to enable them to come to some arrangement with the auction-purchasers was true and that although on the expiry of the period of grace their continuance on the land was wrongful, nonetheless they remained on the land and were in possession of it on the 25th of November 1917 when the riot took place. Upon this view of the case the learned Judge held that the common object charged, viz.., to take possession of the bari by force, failed and the conviction under Section 148 or Section 147, Indian Penal Code, could not, therefore, stand. After stating that the possession of the bari at the time of the riot was dearly wrongful and mala fide, the learned Judge proceeded as follows:
1. 'Nevertheless, it was possession and this is sufficient to exonerate them from the charge of rioting as framed by the lower Court. The charge under Section 147 or 148, Indian Penal Code, must, therefore fail.
6. He, however, affirmed the conviction of the opposite party Ali Asrab under Section 324, Indian Penal Code, and of Karamat Ali under Section 324, Indian Penal Code, and maintained the sentences passed upon them by' the Magistrate.
7. The judgment debtors,' observed the learned Judge, 'managed to retain possession by the device of asking for 5 days grad. It is now contended in effect that by the breach of faith the appellants acquired the right of private defence.' This contention he found no difficulty in rejecting.
8. Regarding the order under Section 522, Criminal Procedure Code, the learned Judge recorded the following order in the Order Sheet under date 21st of October 1918:
1. The order under Section 522 of ,[the Criminal Procedure Code will Continue to be in abeyance pending a reference to the High Court,'
9. On the 29th of October 1918 he recorded another order in the following terms:
10. I do not think any reference to the High Court is necessary .as regards the order under Section 522, Criminal Procedure Code. In view of my finding in- appeal that the auction purchasers did not get possession, the order for restoring possession to them does not arise and automatically ceases to have effect. It will, therefore, be treated as void. The Rule, as I have said, is directed against this last order.
11. It is stated in the petition to this Court, and the statement is supported by an affidavit,' that this order was passed after bearing the Pleader for the accused but in the absence of the complainant or his Pleader or of the Public Prosecutor who -bad appeared for the Crown. It is dear that the complainant was most interested in the maintenance of this order and it ought not to have been declared as of no effect without hearing what the complainant had to urge in support of it: On this ground alone the order is liable to be set aside. The question, however, remains whether we should set aside the order of the learned Judge, unless we are satisfied that the complainant had good grounds to urge against it if he had the opportunity to do so. I think he had It seems to me that the mere fact that the appeal was partially allowed or the finding of the Appellate Court that the accused were in wrongful possession on the date of occurrence did not ipso facto render the order void. The judgment of Stevens and Harington, J J., in the case of Gtourhari Gope v. Atay Qopini ' (1) 29 C. 724; 6 C. W. N. 718, would seem to support this view, as upon any other view of the case the learned Judges would not have thought it necessary to send the case back to the Appellate Court in order that that Court should deal with the order under Section 522 of the Criminal Procedure Code. The learned Judge could no doubt set aside the order under Section 423 (d); if he thought it was just and proper to do so.
12. Having regard to the facts of the case And the conclusions arrived at by the Judge, it seems to me that if he had thought he had discretion in the matter lie might not have exercised that discretion in favour of the opposite party. I cannot shut my eyes to the fact that the comptainant's conduct disclosed a spirit of lawlessness which, certainly deserved no encouragement. Here are the auction purchasers who encounter every opposition in getting possession of the property they had purchased. At last a peon of the Civil Court with the help of an armed force gives them such possession as he could. The opposite party ask for 5 days grace to enable them to come to some settlement with the auction-purchasers. They come to no' such arrangement and the five days of grace attend to twenty and then the auction purchasers' mm then enter the bari in a peaceful manner unarmed, they are attacked with various deadly weapons and severe injuries are caused to the complainant and three others of his party by lathis and spears. Even the Constable Jagadish Chandra did not go unhurt, for he too bare marks of slight injuries.
13. In a case like this to relegate the auction-purchasers to another suit in the Civil Court and possibly to a repetition of all their troubles and difficulties is a result which the Appellate Court was bound to take into consideration after hearing the party most vitally interested in the matter. It also seems to me that in coming to the conclusion that the auction purchasers did not obtain possession of the bari on the 5th' of November 19l7, the learned Judge put a very narrow construction on the meaning of the word 'possession'. As observed, by West, J. in the case of Shaik Ibrahim v. Shaic Suleman 9 B. 146, 'ah appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry.' It seems to me that on that day the auction-purchasers did get possession of the bari and that its possession by the accused from that day till the 25th of November 1917 was possession by leave and license of the auction purchasers, so that it cannot be said that there was no question of restoring the auction-purchasers to possession.
13. I would make the Rule absolute on the short ground that the order complained of should not have been passed behind the back of the party affected by it.
14. I agree.