1. These twenty-one Rules have been heard together. They were issued to show cause why the orders directing the prosecution of the petitioners upon the charge of refusing to serve as special constables should not be set aside.
2. The petitioners live in four villages adjoining two ferries named Dih Ghat and Itwa Ghat, lease of which is held by a certain Rambirich and his son under the District Magistrate and District Board of Mozafferpur. These ferry farmers complained that in January and March last there had been riotous disturbances over their use of the ferry, and in consequence proceedings were instituted against thirteen of the present petitioners under Section 107 of the Code of Criminal Procedure for the purpose of binding them down to keep the peace, During the pendency of these proceedings, the ferry farmers, on the 14th April, again complained that the vlilagers did not allow them to ply the ferry and prayed that certain persons named by them should be made special constables. The names given include all the present petitioners. The District Magistrate directed the District Superintendent of Police to depute an inspector to enquire into the matter, intimating at the same time his willingness to appoint special constables. The Inspector reported that the disturbances had been due to the enhancement of the ferry tolls. He recommended that the persons named by the ferry farmers be appointed special constables, and that in the meantime a head constable and four constables be deputed from the Reserve A head constable and four constables were accordingly deputed, and eventually, on the 10th May, the District Magistrate recorded an order appointing twenty-seven persons to serve as special constables within a certain area in the neighbourhood of the ferries. These twenty-seven persons were the persons originally named in the complaint of the ferry farmers and included the petitioners against some of whom, as we have said, proceedings under Section 107 had then been pending for a considerable time. The petitioners heard of this order, and before it was formally communicated to them came into the town of Mozafferpur. On the 14th May they presented a petition to the District Magistrate impugning the right of the ferry farmers to the ferries and praying that they (the petitioners) should not be appointed special constables. While they were in Mozafferpur awaiting the result of their petition to the District Magistrate, six of the petitioners were met by certain Police Officers who asked them to take their belts and other equipment. They refused. This was reported to the District Magistrate on the 25th May. On the same date the District Magistrate recorded an order summarily rejecting the petition which the petitioners had made to him on the 9th. On the 26th he directed the prosecution of the six petitioners above referred to under Section 9 of the Police Act for refusing to serve as special constables. It does not appear whether the District Magistrate's order rejecting their petition of the 9th was communicated to the petitioners. On the 28th May they were all present in the precincts of the court house at Mozafferpur in connection with the Section 107 proceedings, in which they were accused and which were that day under trial. The remainder of the petitioners were then offered appointment, certificates and belts. They refused to take them, and upon a peon being sent to call them before the Joint Magistrate, they refused to comply. An order was then issued directing the prosecution of the remainder of the petitioners.
3. The only legitimate object of appointing special constables is to strengthen the ordinary Police force by the addition of suitable persons. It has been more than once held by this Court that when such appointments are not made with the object above stated, proceedings under Section 19 of the Police Act will not be permitted.
4. It does not appear that any instructions for the performance of any kind of police duty were even issued to the petitioners, and the circumstances above set forth compel us to come to the conclusion that it was never really intended to employ the petitioners as Police Officers.
5. We may note also that the proceedings under section 07 are now approaching termination. The matters in issue will be decided, and any further action to prevent a breach of the peace will, we hope, then be unnecessary.
6. In the circumstances, we direct that the proceedings against the petitioners be quashed.
7. The Code of Criminal Procedure, as it stands at present, does not provide any obvious remedy for the prevention of disturbances during the pendency of proceedings under Section 107. It was the difficulty, no doubt, which led the District Magistrate to have recourse to appointing the persons reported likely to create disturbance, special constables. We cannot, however, believe that he intended to actually utilize their services on police duties, for this would have been objectionable and would have handicapped them in their defence in the Section 107 case. We may point out that in the present instance an order under Section 144 would probably have sufficed. We think also that the petitioners might well have been given a hearing. Ferry farmers are often exacting.
8. We welcomed the assurance of the Deputy Legal Remembrancer that, if we expressed the opinion that the prosecutions were illadvised, they would be dropped.