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Nripendra Bhusan Ray Vs. Gobinda Bandhu Majumdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal1018,82Ind.Cas.266
AppellantNripendra Bhusan Ray
RespondentGobinda Bandhu Majumdar
Cases ReferredLekraj v. Debi Pershad
Excerpt:
criminal procedure code (act v of 1898), section 439 - revision--high court, power of, to quash pending proceeding, exercise of--penal code (act xlv of 1860), section 154--owner of land failing to give information of riot--ingredients of offence. - .....such riot was likely to be committed and did not use all lawful means in his power to prevent such riot or unlawful assembly from taking place, and that the said babu bepin behari dutt has thereby committed an offence under section 156, indian penal code.that it will further appear from the letters abovementioned that babu bepin behari dutt connived at the engagement of persons to become a member of the unlawful assembly.2. that the said riot at kholabari on the 17th september, 1922, was committed for the benefit of babu nripendra bhusan ray, owner of the simakhali hat, and the said babu nripendra bhusan ray was interested in the subject-matter of the dispute which gave rise to the riot, and his agent or manager having reason to believe that the riot was likely to be committed, or that.....
Judgment:

C.C. Ghose, J.

1. The facts connected with this Rule are as follows : The petitioner, Nripendra Bhusan Ray, is a nonresident zemindar of Narail in the district of Jeasore. It is stated that he resides at Madhupur in the Sonthal Parganas and that all the affairs of his zamindari, which lies in several districts, are managed by one Bepin Behari Dutt, who is his manager and who resides at his sudder cutohery in Narail. There is a hat at a place called Simakhali, 17 or 18 miles distant from Narail, which is owned by the petitioner and others. This hat is let out to various persons under leases for a term. In 1327 B.S. the hat in question was leased out to one Ibrahim Sikdar for a period of three years at an annual rental of Rs. 575 and during the pendency of this lease a rival hat was started in or about January, 1922, at a place called Kholabari, which is within a mile of Simakhali. On the 17th September, 1922, a riot occurred at Kholabari. Certain persons, namely, Forman, Izatulla, Wares Sikdar, Basiruddin and Khodai Mulla were convicted of rioting at Kholabari by the Additional Sessions Judge of Jessore on the 8th February, 1923. Thereafter a case was started under Sections 150 and 157, Indian Penal Code, against one Hemant Kumar Banerjee, who was the petitioners' former 'local agent at Narail, and some other persons on the ground that they collected and engaged various persons to commit the aforesaid riot at Kholabari. It has 'been stated before us that the said case ended in an acquittal of the accused therein. On the 12th March, 1923, an application was made before the Sub-Divisional Officer, Sadar, for rawing up proceedings against tha, petitioner under Section 155, Indian Penal Code, and against the said Bepin Behari Dutt under Sections 150 and 156, Indian Penal Code. The Sub-Divisional Officer held that he could not entertain the application. Thereafter the Inspector of Police of the Magura Sub-Division filed a formal complaint before the District Magistrate of Jessore, charging the petitioner and the said Bepin Behari Dutt with having committed offences punishable under Sections 155 and 156, Indian Penal Code, respectively. In his complaint before the District Magistrate the Inspector of Police stated that the ijaradar of the Simakhali hat began to oppress the traders and dealers at Simakhali hat by realising enhanced rents and excessive tolas and by exercising other acts of high-handedness over them. It was further stated by the Inspector of Police that on account of the oppressions of the ijaradar of Simakhali hat, a rival hat had been started at Kholabari and that both the hats began to sit on the same days, viz., on Sundays and Wednesdays, and that the result was that the old hat at Simakhali lost its importance and the new hat at Kholabari flourished. Ha further stated that owing to the rivalry of the two hats breaches of the peace were apprehended and proceedings under Sections 107 and 144, Criminal Procedure Code, were instituted from time to time in the Court of the Sub-Divisional Officer of Magura. He then referred to the riot which took place on the 17th of September, 1922, and to the conviction of some of the rioters by the Additional Sessions Judge of Jessore in February 1923. He went on to refer to the case against the local agent, Hemant Kumar Banerjee, and stated that in the course of the investigation of the case against Hemant Kumar Banerjee, 16 letters were produced by Bepin Behari Dutt, the manager of the petitioner, before one Ajit Mohan Chowdhury, Inspector of Police. It was alleged that from the letters and from other evidence it would appear that the said Bepin Behari Dutt was guilty of an offence punishable under Section 156, Indian Penal Code, and that the petitioner was liable for an offence under Section 155, Indian Penal Code. The petition of the Inspector of Police contained also the following paragraphs : 'That the said riot at Kholabari hat on the 17th September, 1922, was committed for the benefit of the above named Babu Nripendra Bhusan Ray, zemindar, who was interested in the subject-matter of the dispute which gave rise to the riot and the accused Babu Bepin Behari Dutt, manager, had reason to believe that such riot was likely to be committed and did not use all lawful means in his power to prevent such riot or unlawful assembly from taking place, and that the said Babu Bepin Behari Dutt has thereby committed an offence under Section 156, Indian Penal Code.

That it will further appear from the letters abovementioned that Babu Bepin Behari Dutt connived at the engagement of persons to become a member of the unlawful assembly.

2. That the said riot at Kholabari on the 17th September, 1922, was committed for the benefit of Babu Nripendra Bhusan Ray, owner of the Simakhali hat, and the said Babu Nripendra Bhusan Ray was interested in the subject-matter of the dispute which gave rise to the riot, and his agent or manager having reason to believe that the riot was likely to be committed, or that the unlawful assembly, by which such riot was committed, was likely to be held, did not use all lawful means in his power to prevent such riot or unlawful assembly and that the said Babu Nripendra Bhusan Ray has thereby committed an offence under Section 155, Indian Penal Code.

3. The Inspector of Police, Govinda Bandhu Majumdar, was examined on oath by the learned District Magistrate. The Inspector of Police stated, among others, the following matters:

Q. - Did accused No. 2 know or have reason to believe that an unlawful assembly was being held or would be held at Simakhali?

A. - So far as I enquired, I could not find that there was such knowledge on the part of accused No. 2.

Q. - Where was accused No. 2 at the time of the'unlawful assembly?

A. - At Narail, about 15 or 16 miles, I think, from Simakhali.

Q. - Who was the agent of the Zemindar on the spot at the time of the unlawful assembly at Simakhali?

A. - At the time of the unlawful assembly at Simakhali which led to the riot at Kholabari, the Zemindar's local agent, i.e., Hemant Kumar Banerjee, was not there, but his dependant, Surendra Nath Bhattacharjee, was there.

Q. - At the time of unlawful assembly leading to the riot, where was Babu Hemant Kumar Banerjee, i.e., on the 17th September, 1922?

A. - He was at Bunaganti Cutchery, 12 miles from Simakhali, on 17th September, 1922, afternoon.

Q. - Did the unlawful assembly take-place in the afternoon?

A - Yes.

Q. - Then so far as you know, there was no agent or manager of the Zemindar-present at Simakhali just before or at the time when the unlawful assembly assembled on 17th September, 1922?

A. - No, none.

Q. - Do you complain of any other-unlawful assembly besides that of 17th September, 1922?

A. - No, no other.

Q. - Did you find from any reliable-evidence that accused No. 2 had reason to believe that an unlawful assembly such as was actually held at Simakhali on 17th; September, 1922, would be so held?

A. - In the course of investigation of case No. 3 of October, 1922, I seized soma letters which accused No. 2 produced to me; in one of them I find that the accused' No. 2 enjoined or entreated his agent, Hemant Banerjee, to cause demolition of the new hat.

Q. - What was the date of that particular -letter?

A. - (Refers to papers) 23rd Sravan,. 1329 (8th August, 1922).

Q. - What is the language of the letter?'

A. - Shattwar had hata jahate dhangsa hoy tahar byebasta kariba.

Q. - How do you know that the accused-wrote that letter?

A. - From signature.

Q. - To whom is the letter addressed?

A. - To Superintendent, Bakra Mokam, Simakhali.

Q. - Is it quite clear that that letter refers to the Kholabari hat?

A - Yes.

4. The learned District Magistrate by his order, dated the 21st April, 1923, held that Sections 155 and 156, Indian Penal Code, were-not applicable to this case, but that a case under Section 154, Indian Penal Code, against the petitioner Nripendra Bhusan Bay had been made out. The following is the text of the order made by the learned District Magistrate : 'In my opinion Sections 155 and 156, Indian Penal Code are not applicable in this case; for (1)(i) neither of the accused is owner or -occupier of the land of Kholabari hat, respecting which the riot 'took place; (ii) neither accused claims any interest in the land of the Kholabari hat ; (iii) neither accused claims any interest in the Kholabari hat, i.e., the subject-matter of the dispute which gave rise to the riot-their desire being merely to destroy that hat, which I hold not to be the same as claiming an interest in the hat; and (iv) the last answer (before the supplementary questions) of complainant to my questions, shows that accused No. 1 has not accepted or derived actual benefit from the riot.

(2) But it appears from the complainant's statement on 8.A. that so far as the forming of an unlawful assembly at Simakhali on the land of accused No. 1 is concerned, a case under Section 154, Indian Penal Code, is made out against the zemindar Bibu Nripendra Bhusan Ray (vide especially the last few answers to the supplementary questions to complainant). (3) Summon Babu Nripendra Bhusan Ray of Narail, Zemindar, under Section 154, Indian Penal Code, for 12th May, 1923. I transfer the case to S.D.O, Sadar, for favour of disposal. (4) The complaint against accused No 2. Babu Bipin Behari Datta, is dismissed, Section 203, Criminal Procedure Code.

5. The present Rule is directed against the said order of the learned District Magistrate. It is argued on behalf of the petitioner that having regard to the language of Section 154, Indian Penal Code, and to the facts elicited in the examination on oath of the Inspector of Police, the present proceedings are wholly unjustified. Section 154, Indian Penal Code, runs as follows : 'Whenever any unlawful assembly or riot 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 on 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 lawful means in his or their power to disperse or suppress the riot or unlawful assembly.

6. The ingredients necessary, therefore, for a prosecution under Section 154, Indian Penal Code, are the following:

(a) Unlawful assembly or riot

(b) Accused is the owner or occupier of the land or has or claims to have an interest in the land.

(c) Either the accused or his agent or manager knew that the offence was being or had been committed or had reason to believe that it was likely to be committed.

(d) With such knowledge that the offence was being or had been committed, or having reason to believe that it was likely to be committed, the accused did not give notice to the nearest police station.

(e) The accused having reason to believe that the offence was about to be committed, did not use all lawful means in his power to prevent the offence or in the event of its taking place, did not use all lawful means in his power to disperse or suppress the riot or unlawful assembly.

7. In the present case it is argued that the charge is not that subsequent to a riot or unlawful assembly, no information had been given to the police, but that with the knowledge or having reason to believe that such an offence was about to be committed, steps were not taken to prevent a riot. It is pointed out on behalf of the petitioner that on the petition of complaint of the Inspector of Police and on the answers to the supplementary questions, it is clear that there is no allegation that the petitioner or his agent or manager knew or had reason to believe that the offence was being or had been committed and that, therefore, the ingredients required by Section 154, Indian Penal Code, had not been satisfied. Knowledge of the landholder or of his agent is the first essential element of an offence under this section.

8. I have very carefully examined the record and I am of opinion that on the materials on record I am bound to give effect to the contentions urged on behalf of the petitioner. The Inspector of Police, who was examined before the Magistrate, does not allege that the petitioner, who is the zemindar, had any knowledge or had any reason to believe that a riot was likely to be committed. Further, the allegation of knowledge on the part of the agent or manager of the zemindar is not substantiated on the examination of the complainant on oath. It is true that the Inspector did refer to certain letters alleged to have been written by the accused No. 2, but the implication involved therein is plainly inconsistent with what the Inspector himself has stated, viz., that as far as he could find, there was no knowledge on the part of the accused No. 2 that an unlawful assembly or riot was going to take place at Simakhali. It is not necessary to lay particular stress upon the fact that at the time of the unlawful assembly or riot the agent or manager of the zemindar was at Narail, which is about 15 or 16 miles from Simakhali, or that the zemindar's local agent, Hemant Kumar Banerjee, was at a kutchery which is 12 miles distant from Simakhali, but stress must be laid upon the facts elicited in the examination of the complainant on oath, which have been referred to above.

9. I am not unware that it has been held that it is not necessary in order to render the owner of land on which a riot takes place criminally liable that he should be aware of the likelihood of such an occurrence and that it is enough that his factor or agent should have taken an active part in the riot to warrant the conviction of the owner under Section 154, Indian Penal Code. This Court has held 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 this section, and that he may be convicted under it, though he may be in entire ignorance of the acts of his agent or manager. The facts, however, in this case show that the agent or manager had no knowledge and had no reason to believe that an unlawful assembly or riot would be held or committed at Simakhali; this in my opinion is really the most important point in this case as far as the petitioner is concerned. On the present record, I am of opinion that there are no materials justifying the initiation of proceedings under Section 154, Indian Penal Code, against the petitioner, Nripendra Bhusan Ray, In my opinion the very greatest caution is required before proceedings are started against persons under Section 154 ,Indian Penal Code. I would, therefore, quash the present proceedings and make the Rule absolute.

10. This Court has undoubted power to quash proceedings in subordinate Courts see Chandi v. Abdur Rahman (1894) 22 Cal. 131; Choa Lal v. Anant (1897) 25 Cal. 233; Jagat Chandra v. Queen-Empress (1899) 26 Cal. 786 and Hari v. Srish Chandra (1910) 38 Cal. 63 and in this connection I adopt respectfully what has been said by Woodroffe, J., in Lekraj v. Debi Pershad (1908) 12 C.W.N. 678. I am fully sensible of the danger of interfering with cases, while they are still pending in the subordinate Courts, but I am equally alive to the danger of this Court not being able to say that it is its bounden duty to interfere when it is brought to its notice that a person has; been subjected, or is about to be subjected to the harassment of an illegal prosecution.

11. As my learned brother does not agree to the Rule being made absolute, the case will therefore be laid 'before the Chief Justice for reference to a third Judge.

Cuming, J.

12. The facts of the case out of which this application has arisen are set forth in the judgment which has just, been delivered by my learned brother and it is unnecessary for me to recapitulate; them.

13. I would discharge the Rule. While admitting that this Court has the power of interfering with criminal cases whilst, they are still pending before the subordinate Courts, I am still of opinion that it, is a power the exercise of which is some time fraught with considerable danger to the due administration of criminal justice. If parties are to be allowed to come up at, every and any stage of criminal prosecution to challenge the order of the Magistrate, a very powerful weapon is at once, placed in the hands of the well-to-do to defeat the ends of justice and to protract indefinitely a criminal trial. It seems tome that it is for the Magistrate before, whom the case is pending to determine-whether the facts proved or the facts, alleged do or do not constitute a criminal offence. The accused party has then his-remedy by way of appeal or revision, when the case has been finally decided.

14. The disadvantages of what can only be described as a simultaneous trial by two. Courts of the same offence are so obvious that it seems to me that they outweigh any possible advantages which might be gained by following the procedure above indicated. I am very unwilling at this stage to go into the facts of the case, for to do so might seriously prejudice the accused, but would point out that the mere fact that one of the accused's agent was not actually present at the riot, but was some 10 or 12 miles distant does not for one moment prove that he did not know of, or have reason to believe that a riot was about to be committed. I am not prepared to say that the allegations in the complaint if proved would not bring the accused within the mischief of Section 154. That is a question which will be determined when evidence is gone into.

Newbould, J.

15. This Rule was issued upon the District Magistrate of Jessore Galling on him to show cause why his order summoning the petitioner on a charge under Section 154, Indian Penal Code, should not be quashed. The Rule was heard by my learned brothers C.C. Ghose and Cuming, JJ., and as they were unable to agree it has been referred to me for decision.

16. As regards the question of law there is no real difference between them. They both agree that this Court has power to quash a criminal proceeding in its early stages before any evidence has been recorded and they both agree that this is a power which will be only exercised in exceptional cases. The question is whether the present case is one of those exceptional cases.

17. The facts are fully set out in the judgment of my learned brother C.C. Ghose, J., and I only propose to restate them very shortly. The petitioner is a zemindar who is one of the owners of a Hat held in a place called Simakhali. A rival Hat was started at Kholabari about a mile from Simakhali. According to the case for the prosecution on the 17th September, 11922, an unlawful assembly was collected at Simakhali and they went from there to Kholabari where they committed a riot. After the conclusion of the trial in the rioting case on the 24th April, 1923, the complainant an Inspector of Police filed a written complaint before the District Magistrate charging the petitioner and on Bepin Behary Dutt described as his manager with offences punishable under Sections 155 and 156, Indian Penal Code. These offences were alleged to have been committed in connection with the riot at Kholabari. After examining the complainant the Magistrate held that offence under these sections had been established against neither of the accused persons, but that a case had been made out which justified him in summoning the petitioner to answer a charge under Section 154, Indian Penal Code with reference to the unlawful assembly which had taken place at Simakhali prior to the riot at Kholabari. The necessary ingredients that have to be proved to establish the offence under this section are set out in the judgment of my learned brother, C.C. Ghose, J. It is not disputed that from the petition of complaint and the statement of the complainant on oath the Magistrate could have good ground for believing that all these ingredients except one were likely to be proved by the prosecution. The only question is whether, on the petition of complaint and on the complainant's statement, there is material for holding that a case can be made out that the petitioner's agent or manager knew or had reason to believe that the offence of being members of an unlawful assembly was likely to be committed.

18. On behalf of the petitioner great reliance is placed on a statement by the complainant in answer to supplementary question. The question and answer are as follows : 'Did accused No. 2 know or had reason to believe that an unlawful assembly was being held or would be held at Simakhali? Answer : So far as I enquired I could not find that there was such knowledge on the part of accused No. 2. But in a later part of his examination the following-question and answer appear - 'Did you find from any reliable evidence that accused No. 2 had reason to believe that an unlawful assembly such as was actually held at Simakhali on 17th November, 1922, would be so held? Answer : In the course of investigation of case No. 3 of October 1922 I seized some letters which accused No. 2 produced to me. In one of them I find that accused No. 2 enjoined his agent Hemanta Banerjee to cause demolition of the new Hat.' Considering both these statements of the complainant I find it difficult to hold that there was what can be called in law 'no evidence' that the complainant's agent or manager had knowledge that an unlawful assembly was likely to take place at Simakhali. Further if we turn to the written petition we find what amounts to a distinct allegation of such knowledge. It must be remembered that the petition was drafted with a view to starting a case against the accused for having committed offences under Sections 155 and 156 with reference to the actual riot at Kholabari and not with a view to the prosecution which was actually ordered with reference to the occurrence at Simakhali. From paragraphs 11 and 12 we find distinct allegation of knowledge on the part of the petitioner's agent or manager. In paragraph 11 of the petition it is alleged that the agent of the Narail zemindar collected lathials at Simakhali. In paragraph 12 it is alleged that these lathials proceeded from the old Hat of Simakhali and committed rioting with culpable homicide at Kholabari. It is further alleged that Hemant Banerjee, the agent of the Narail Zemindar, collected and engaged persons to commit the aforesaid riot. I am told that Hemant Banerjee has since been acquitted on the charge under Section 150, Indian Penal Code. Although the prosecution may not be in a position to prove that he actually collected and engaged persons to commit riot, it does not follow that they will not be able to prove what is contained in that allegation, namely that the riot took place with his knowledge, or that he had reason to believe that the taking place of the unlawful assembly was probable. My learned brother Cuming, J., remarks that it may prejudice the accused if too much is said about the strength of the case for the prosecution and with this I agree.

19. the reasons I have given I hold that no sufficient case has been made out for quashing the prosecution of the petitioner at the present stage of the proceeding, and I accordingly discharge this Rule.


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