Lort Williams, J.
1. The appellants were charged with offences under Sections 147, 148, 302 and 147/109, Penal Code. They were tried with two other accused by the Additional Sessions Judge at Alipore and a jury. Ram Sumer Ahir alias Matabadal was convicted of offences under Sections 148 and 323, and sentenced to imprisonment for two years and one year respectively, to run consecutively; the other appellants were convicted under Section 147 and sentenced each to imprisonment for two years, and the other two accused were acquitted.
2. The case for the prosecution was, that the complainant Mr. J. Choudhury, who is a member of the English Bar, an Advocate of the Calcutta High Court, Editor of the Calcutta Weekly Notes and a respected citizen of Calcutta, is the owner of certain property called Nos. 1, 2 and 3 Sarba Mangala, Hat Lane. He obtained a civil Court decree for ejectment and vacant possession against one Ram Gopal, and on 3rd July 1932 the Nazir having obtained specific instructions from the Court, removed the furniture and live-stock into the road adjoining and gave vacant possession to Mr. Choudhury's pleader, Mr. Manujendra Dutta, and his accountant Sanat Kumar Bose, and they locked up the premises, erected fences and put two Nepali durwans in charge. Later the same day, one of the accused who was acquitted, Gobinda Singh, the father of Ram Gopal, came with others, broke the locks and the fences, chased the Nepali durwans away, and put back into the premises some of the furniture and cattle which had been removed by the Nazir. Mr. Choudhury reported these matters to the police at Chitpur saying that he had given orders to replace the locks, and asked for protection, and that Gobinda be warned not to trespass on the premises. Owing to the Bath Jatra holiday, the police did nothing until 7th July.
3. The decree for ejectment was the culminating step in a long series of harassing proceedings which Mr. Choudhury had been compelled to institute in order to enforce his rights against Govinda. In 1920 Govinda had mortgaged these and other properties to Mr. Choudhury for about a lakh of rupees. In 1925 Mr. Choudhury obtained an order for possession and the Nazir had to forcibly eject Gobinda's tenants. The premises remained vacant under guard until 1927, when Mr. Chaudhury allowed Earn Gopal to re-enter on agreeing to re-purchase the properties, but he failed to pay, which resulted in another suit, followed by further proceedings in ejectment. Later in 1927 Mr. Choudhury obtained a mortgage decree for 1 lakhs, and brought the properties to auction in part execution of the decree out of which Gobinda still owes him Rs. 13,000.
4. On 7th July, Mr. Choudhury sent his men in charge of his accountant Sanat, to replace the locks and the fences, and he sent his pleader Mr. Manjendra Dutt to see that everything was done in accordance with law, and with instructions to send for the police if anyone was found living on the premises. Also he sent his Nepali durwans to protect his property and his men in case they were attacked. In all about a dozen men were taken, including Nepali and Hindu durwans and coolies, Gangadhari his head durwan, who had been in Mr. Choudhury's service for 35 years, Sanat and the pleader Mr. Dutta. One or two of the Nepalis carried Khukris, as is their custom.
5. Sanat went first to the thana and two constables were deputed to accompany them. When they got to the premises they found no one there, but the locks and fences had been broken, and some broken furniture had been put back into one of the huts in No. 3 and some cattle were in the compound. Sanat told the men to remove them and take them to the thana, but the police disapproved of this procedure because no order had been obtained for this, and they returned to the thana. Just as the men began to remove the things, the appellant Matabadal came up with an iron pipe in his band and objected to the removal. No notice was taken of him, so he immediately called up a dozen or more carters who entered No. 3 armed with lathies, dhandas or iron rods, whips and sticks, shouting 'maro sala' and 'sala loke nikalo.' They said they were Govinda's men. Soon after Govinda arrived with 20 or 25 more men. He told them to beat the durwans. Matabadal first struck the pleader on the forehead with the iron rod, then others hit him with a lathi and he became unconscious. Afterwards Matabadal struck down Gangadhari in the yard with the iron rod, and he fell senseless, with a fractured skull, from which injury he died in hospital during the afternoon of the same day. Most of Mr. Choudhury's men ran away when the attack commenced. There was no evidence that any of them used arms on their aggressors, even in self-defence. One of the Nepalis flourished his khurki to prevent a number of men from attacking him with lathis and iron bars. Eventually, Govinda's men went away, and the matter was reported to Mr. Choudhury, and by him to Mr. Colson, the Commissioner of Police.
6. In this case there has been a serious miscarriage of justice and this has been brought about owing to the unusual and improper bias and partiality shown by the Judge, his misconception of the law his mismanagement of the trial and his misdirection of the jury. Owing to these errors, he seems to have allowed himself to become obsessed with resentment at some supposed misdeed on the part of the complainant and his agents and servants, and this obsession obscured his vision and filled his mind with a completely distorted conception both of the law and the facts. In fact ha appears to have realised this himself, because he thought it necessary at one point in his charge to reassure the jury, and tell them that they must not think that he was summing up against the prosecution in order to bias them in any way. Thus he refers to Mr. Choudhury as
a man of some eminence in the world (but you are not concerned with that) with considerable knowledge of law and a great deal of wealth,
in a way which was certainly not intended to improve his position in the eyes of the jury. The accountant Sanat is referred to as 'one of his underlings.' The furniture was 'dumped' on the road. The police 'decline to countenance this procedure at all.'
The first thing he did remarkable was that he went to Mr. Colson, the Commissioner of Police. Why did Mr. Choudhury go to the Commissioner of Police? A suggestion has been put forward by the defence and the expression 'unholy alliance' between Mr. Chaudhury and the Police has been used. Gobinda is an aged and influential person. We know that he was a person of considerable means because Mr. Choudhury is now the possessor of a plot of land worth 1 lac of rupees which formerly had been Gobinda's. It is in evidence that Mr. Choudhury has not taken all his properties by taking Nos. 1, 2 and 3.
7. All these remarks were meant to disparage Mr. Choudhury and the case for the prosecution in the eyes of the jury, and there was no justification in the evidence for the double meaning, which they were intended to convey. Owing to this strong bias, the Judge has omitted to charge the jury properly. There was no connected narrative in his charge nor any sufficient attempt to marshall and sift the evidence against each of the accused, nor to direct the jury about its relevance or value, or what offences it disclosed. Much of the cross-examination was irrelevant and I can find no sign that any attempt has been made to check it. The result is that the essential facts which were really very simple, have been smothered and obscured under a mass of irrelevancy. The result was that Gobinda, against whom there was clear evidence that he was a participator in, and the prime instigator and director of this disgraceful affray, was acquitted and his servants and agents who simply obeyed his illegal orders were condemned, and even these could not be convicted of the offences, which according to the evidence, they had committed. The Judge commenced by withdrawing the charge of murder against Matabadal, and directing his acquittal on this charge, on the ground that there was no evidence against him. He had no right whatever to do this. There was clear and ample evidence of murder against Matabadal in the depositions of Amar Bahadur Nepali and Man Bahadur Nepali alone. What the Judge meant is incomprehensible unless he had forgotten that a person is presumed to intend the reasonable and natural consequences of his acts. To make matters worse he directed the jury that culpable homicide does not amount to murder if the accused
has been moved beyond himself by some zulum provided he has not put himself in it. It is not murder when it is provoked, if provocation is not sought. It is not murder when it is not intended, and it is not murder when the act in itself neither is likely nor is intended to cause death or such grievous hurt as may result in death.
8. This without any explanation of these excuses or any direction about what evidence (if any) there was upon which these excuses or any of them could be raised. There was not a tittle of relevant evidence to support any of them. The accused was the aggressor and in fault throughout. The provocation (if any) was not that which the law recognizes. His intention in view of the evidence ought to have been presumed. The result of this mishandling was, that this accused, for causing the death of Gangadhari, was not even convicted of an offence under Section 304, or even under Sections 324, 325 or 326, but for simple hurt under Section 323, a verdict which was dishonest, perverse and wholly contrary to the evidence. On the question of possession, and the rights of an owner of property the Judge first misdirected himself and then the jury. Because Gobinda's men drove Mr. Choudhury's durwans away, and put a few sticks of furniture back into the premises, he seems to think that they regained possession, and that the furniture could not be removed legally, without a further decree, and further ejectment proceedings, and so on ad infinitum. The law is not quite so absurd as this. Thus he says that according to the prosecution case 'Gobinda's party were in physical possession of the property' from 3rd June.
You are not concerned with who is the legal owner of it; you are concerned with actually who was in physical possession of it.
Choudhury has no right to dispossess anybody whether rightly or wrongfully in possession, and to break the King's peace.
9. 'Chaudhury's men were dispossessed on the 3rd according to the Grown case.' And when the jury asked:
If it is ascertained that the possession was taken before the 7th by Govinda's men, would then Section 147 apply against them?
the Judge answered:
The question of possession is material for this reason that if Gobinda's men had possession before the 7th, Choudhury had no right whatever to go and turn them out. His proper course was to go to the Magistrate, or to apply to the Courts, and if Gobinda's men, assuming that they were there, had no unlawful intention, or they did not intend to do a lawful act by unlawful means, there cannot be an unlawful assembly.
10. It would be difficult to imagine statements more inaccurate and more misleading than these. There was not a scintilla of evidence that Gobinda's party were in possession, legal or physical, or that Mr. Choudhury, was dispossessed after 3rd June, or that his men dispossessed anyone on the 7th, or that they broke the King's peace. Nor was it possible that Gobinda's men on the 7th, in what they did, could have had no unlawful intention, or did not intend to do a lawful act by unlawful means. There was no evidence to show who put back the furniture on the 3rd or subsequently; when Mr. Choudhury's men same on the 7th no one was on the premises nor did Gobinda's men claim that the furniture belonged to them. From their words and actions it might be inferred that they were protesting and acting in the interest of others who were absent. Whoever put the furniture in, were trespassers and had trespassed on Mr. Choudhury's property, and he had every right to put it out, without going to any Court, either Civil or Criminal. No one being upon the premises no question of retaking possession arose, and there could be no question of resistance, which might lead to a breach of the peace. And if anyone tried to come upon the premises while Mr. Choudhury's men were there, clearly they would be trespassers, and his men would have every right of use force if necessary to resist them.
11. But even assuming that some one had taken possession of the premises on the 3rd, and had put some furniture in and left it there, and Mr. Choudhury's men went in on the 7th and put it out, in their absence, their action would be in accordance with law. The law upon this point is discussed in Mayne's Criminal Law of India, Edn. 3, p. 531 and is contained in Section 141, I. P. C, Clause 4. It is founded upon 5 Vic. 2, Ch. 7 which runs:
and also the King defendeth, that none from henceforth make any entry into any lands and tenements, but in ease where entry is given by law, and in such case not with strong hand, nor with multitude of people but only in peaceable and easy manner.
12. Thus if anyone is in wrongful possession of his property, the landlord in taking or obtaining possession must not do so by means of criminal force or show of criminal force. But if he can obtain it in a peaceable and easy manner, he has every right to do so, even though this may involve the 'peaceable and easy,' ejectment of anyone found on the premises.
13. In the present, case even if it be assumed that Mr. Choudhury lost possession on the 3rd, and that the presence of the furniture constituted the possession of another, he regained possession both peaceably and easily, because no one was on the premises to resist, no one was present upon whom criminal force or show of criminal force could be imposed. It was after possession had been obtained that the affray commenced which was the subject-matter of these proceedings and it is this vital distinction that the Judge failed to appreciate. Gobinda's men were not in possession; they came from outside. They trespassed upon Mr. Choudhury's property, of which his men had regained possession and brutally attacked them. All that the latter did was either to defend themselves or to run away. It is clear therefore that no question of private defence such as has been argued on appeal could arise.
14. In spite of the Judge's charge, which fell little short of a direction to acquit all the accused, the jury convicted some of them, as already stated, and though the Judge was constrained to admit that the verdict substantially confirmed the case for the prosecution, he felt it his duty to comment severely upon the conduct of Mr. Choudhury 'who appears to have forgotten his duties as an officer of the High Court of Justice of England' and that of Manujendra Dutta, pleader, which 'was unprofessional and highly reprehensible.' There was no justification whatever for this castigation, both Mr. Choudhury and Mr. Dutta having acted with propriety, under great provocation. What Mr. Choudhury's duties were as an officer, and how and why he could be described as an officer of the High Court of Justice of England, is as difficult to understand, as the Judge's attitude throughout this trial.
15. The only question which remains to be decided is, whether this ease ought to be sent back for a new trial. In view of the fact that the Chief offender Gobinda has been acquitted and cannot be retried, and that further proceedings would entail much inconvenience, delay and expense, which ought not to have been necessary we will not direct a new trial but dismiss this appeal. The appellants who are on bail, will surrender and serve out the remainder of the sentence imposed upon them.
M.C. Ghose, J.
16. I agree.