Gopinath Paryah and Others vs The Empress

These four cases were argued before us on the 20th of last month. In the first, a rule had been granted to show cause why certain proceedings by which the Petitioners were summoned to answer a charge under sec. 173, Indian Penal Code, should not be quashed. In the second, a rule had been granted to show cause why the case against the Petitioners should not be transferred from the Court of the Joint Magistrate of Cuttack to some other district. The application in the third and fourth cases was the same as in the second, but no rule to show cause had been granted; the Deputy Legal Remembrancer, however, on grounds of public convenience, elected to show cause in the first instance without the issue of any previous rule. We stated at the close of the argument that in our opinion, the proceedings in the first case must be quashed, and as to the second, third and fourth cases that they must be transferred to the district of Pooree. We have now to state our reasons for these orders; and in doing so, that we may make what we have to say and the grounds on which we act quite clear, it will be necessary to notice some earlier transactions, closely connected with those with which we have directly to deal and which were properly brought before us on this occasion.

It appears that the late Maharaja of Burdwan died childless in the year 1885; the Court of Wards have undertaken the management of the Raj estates and Mr. Coxhead, the Collector of Burdwan, has been appointed Managing Collector, and Mr. T. De B. Miller and Babu Bun Behari Kapur, managers. At the time of the late Maharaja''s death, an estate, named Kujong, in the district of Cuttack, stood registered under Act VII of 1876, B. C, in the name of the Dowager Maharanee, the widow of an earlier Maharaja Mr. Currie was then, and is now, the Magistrate and Collector of Cuttack.

A controversy thereupon arose, between the officers of the Court of Wards on the one side and the Dowager Maharanee on the other, as to the title to the property, and a conflict as to its possession. On the 22nd July 1885, Mr. Coxhead wrote to Mr. Currie as the Collector of Cuttack about the Kujong property. He informed the latter that the Maharanee, " who claims the property as her own, is attempting to interfere with our local officers and had issued instructions to employees of her, which may result in disturbance." He states who the local officers are, and says, "I beg you will give them support if they should apply to you for it; " and he states further that " the property is in our possession." Shortly afterwards the Maharanee presented a petition to Mr. Currie as District Magistrate, alleging that she owned and possessed the property that those who represented the Court of Wards were trying to obtain possession, that her people had been threatened, and that she apprehended a breach of the peace, and she asked for a Police guard for her servants. Mr. Currie refused this and said he could only recognise the man in possession who was the Court of Wards'' man, and warned the Maharanee that if her manager went to the place, and a breach of the peace ensued he would be held responsible. Mr. Currie in his affidavit of the 7th April last tells us that he "fully apprehended a breach of the peace from what was stated "in this petition, and from the attempts of the Maharanee''s men to realize rents and to put certain persons in possession.

The state of things, with which the Magistrate had to deal, was thus one which is unfortunately but too common in this country. There was a dispute as to title, with which of course only the Civil Court could deal; the Magistrate had no power to decide it himself, and no power to compel either party to take the necessary steps to bring the matter before the Civil Court. It was stated during the argument before us that down to that time neither party had filed a suit for the purpose. For the conflict about possession attended by risk of a breach of the peace, the law has made express provision in sec. 145 of the Criminal Procedure Code. Upon proper information of the existence of the dispute and of the likelihood of a breach of the peace, and upon proper proceedings being taken under that section, a decision might have been obtained from a Magistrate as to the fact of possession; and the party found to be in possession would then have been maintained in possession in accordance with law, until the question of title should be decided by a competent tribunal. If this course, so plainly pointed out by the law, had been taken, it seems likely that the continued conflict and the unfortunate series of irregularities which followed would have been avoided. But it was not taken.

The first step that Mr. Currie did take was to alter the register, by striking out the name of the Maharanee, as the registered owner of this estate, and substituting those of the managers of the Court of Wards. The Collector did this without notice to the Maharanee, acting under what he understood to be an order of the Board of Revenue. It is not necessary to consider whether the letter of the Board of Revenue did, or did not, amount to an order. It is unnecessary to decide whether Mr. Currie could or could not be justified in obeying any order of the Board of Revenue on such a point. It is unnecessary to decide whether the act of the Collector in altering the register in favour of the Court of Wards as against a person claiming adversely to the estate represented by the Court of Wards, was not wholly illegal; it is enough for the present purpose to say that the order was an unfortunate one. It prejudged the question of title, so far as any act of the Collector could do so. It very seriously affected the question of possession, for by secs. 78 and 79 of the Registration Act, the effect of the alteration was to absolve the tenants of the estate from all liability to pay rents to the Maharanee, and to authorise them in paying to the Court of Wards'' manager, thus exactly reversing on this point the previous position of the parties. And it placed the District Officer in the position of a partisan of one side, in the controversy between the Court of Wards and the Maharanee, and in a position of antagonism to the other.

As to the question of possession, Mr. Currie says In his affidavit, that he believes the Maharanee is not in possession. Be it so; but the law contemplates not the opinions of Magistrates on such questions, but their judicial decisions.

Upon the strength of a petition, dated the 3rd October 1885, Mr. Currie summoned certain servants of the Maharanee to answer a charge of unlawful assembly. In November, he made an order binding over certain of those servants to keep the peace under sec. 107 of the Criminal Procedure Code. The persons accused of unlawful assembly, and the persons bound over under sec. 107, severally petitioned this Court, and the matters were heard before Tottenham and Agnew, JJ. In the course of their judgment, the learned Judges pointed out that a portion of an order of Mr. Currie, by which he ordered the Petitioners in the unlawful assembly case to appear in Court, and signify their presence every Monday and Thursday until the result of the petition should be known, and a final dare fixed for hearing the case, was " utterly unwarrantable." They also pointed out that a notice which he had issued to the Police to prohibit " Jimmadars" from paying rent to the Maharanee''s servants and directing them to pay rents to the manager of the Court of Wards, was an order which he had no power whatever to make. They set aside the order under sec. 107, on the ground that there were not sufficient materials to justify the order. And they transferred the charge of unlawful assembly to be dealt with in the adjoining district of Pooree. They stated their reasons thus :--

With regard to the charge under sec. 143, we think that the Petitioners have made out a good case for the transfer. It has been argued that though Mr. Currie has made several orders which are indefensible in law, yet that he has not shown any mald fides and that there is no reason to suppose that the Petitioners will not have a fair trial before him. We do not wish to attribute mald fides to Mr. Currie. But he has from the commencement of the dispute between the Maharanee and the Court of Wards acted in his executive capacity under the direction of, and in obedience to orders received from, the Court of Wards, and while acting in that, capacity, he has throughout, taken a view of the dispute hostile to the Maharanee and her servants. We therefore make the rule absolute, and direct that the case be transferred to the file of the Magistrate of Pooree.

This judgement was delivered on the 14th December. On the 21st December, a petition was presented to the Magistrate by the head mohurrir of the Court of Wards, setting out that an attempt was being made to establish the Dowager''s possession by force, that assaults had been committed upon the Court of Wards'' men, that a false case had been instituted, and subpoenas issued to certain of the Court of Wards'' people, with the view of getting them out of the way, and that some police-officers had been gained over. The petition concluded with a prayer that the Magistrate would order the Police Inspector to "maintain the possession of the manager of the Court of Wards," and to "prevent any person from interfering with the collection of rent" by the Court of Wards'' manager. The order made upon that petition was, " Send order to Mr. Tims by to day''s post, that he is to see that the present manager of the Court of Wards is maintained in possession of the various kutcheries in the zamindari of Kujong, and that any person found preventing or obstructing his peons in collections be immediately restrained." This was an illegal order. It was au order made by the Magistrate in a case of disputed possession, to maintain one side in possession, and to restrain the other side, without any judicial determination of the fact of possession.

On the same 21st December, another petition was presented to the Magistrate on behalf of the Court of Wards. It stated that the men of the Maharanee were scattering themselves in all parts of the estate, " that they were oppressing the raiyats," trying to "create disturbance and breach of the peace, and with the assistance of Gopinath Paryah and his brother doing their best to collect rents from the raiyats by force." Gopinath is one of the present Petitioners, and is plainly an active man of the Maharanee''s party. The petition went on to show reasons for holding that the Maharanee was not in possession. It prayed the Magistrate to "depute a guard of sixteen constables to Kujong, and direct Mr. Tims, the Inspector of Police, to arrest any person belonging to the party of the Dowager Maharanee or under her service, found trespassing upon the said estate with the object of creating disturbance or collecting rent, and to prevent any person from interfering with the collection of rent by the Court of Wards'' manager."

Mr. Currie''s order upon that petition was this :--" Eight constables are already at Tikri, and eight more have been ordered down. Send this to Probhat Babu (this gentleman was a Subordinate Magistrate) to see what Gopinath Paryah is doing. It might be well, considering the general aspect of things, to appoint Gopinath and some others of influence as special constables for a month. Send up some names."

This led to a report from Mr. Tims, the Police Inspector, who stated that disturbances had already been created by Gopinath and his men with the other side, and that a case was before the Deputy Magistrate; that there are " several other men of Gopinath scattered about in the different villages of Kujong with a view to realize rents from the raiyats, and also obstruct the men of the said manager, and if they attempt to do so there will undoubtedly be some serious disturbance committed; with a view to prevent the disturbance of the peace, it will be advisable that the following men be enlisted as special Police under sec. 17 of Act V of 1861, as the ordinary Police posted is not sufficient to preserve the peace." He then gave a list of ten names beginning with Gopinath, Of these Gopinath and two others are servants of the Maharanee, two are what are called Jimbadars claiming to hold under her. It would seem from a document which we shall have to refer to later, of the 26th January 1886, that a sixth was from the same place. Of the other four, it does not appear what they were. The first-mentioned five are the Petitioners in the first of the petitions before us.

The Deputy Magistrate, Probhat Chunder Chatterjee, already mentioned, supported this recommendation, saying -- "From what I have seen on the spot during the last six days, I have every reason to apprehend a breach of the peace at Kujong. The ordinary Police posted here is not sufficient to preserve peace Upon this Mr. Currie on the 16th January made an order appointing the ten men named special constables. At this point, Mr. Currie''s connection with these transactions ceases.

The power to enlist special constables is conferred by sec. 17 of Act V of 1861 which is as follows :--" When it shall appear that any unlawful assembly or riot or disturbance of the peace has taken place, or may be reasonably apprehended, and that the police force ordinarily employed for preserving the peace is not sufficient for its preservation and for the protection of the inhabitants and the security of property in the place where such unlawful assembly, or riot or disturbance of the peace has occurred, or is apprehended, it shall be lawful for any police officer not below the rank of Inspector to apply to the nearest Magistrate to appoint so many of the residents of the neighbourhood as such police-officer may require, to act as special police-officers for such time and within such limits as he shall deem necessary; and the Magistrate to whom such application is made shall, unless he see cause to the contrary, comply with the application."

In the first of the petitions now before us, the first two Petitioners expressly say (para. 20) that they "have been informed and verily believe that Mr. Currie, in order to deter them from collecting rent on behalf of the said Maharanee, and your other Petitioners from paying to her rents which are due to her," passed the order suggesting the appointment of special constables. Mr. Currie''s explanation is this :--" I finding the ordinary police force stationed at Kujong to be insufficient for the purpose of preserving the peace, called for a report whether it would not be well to appoint special constables." He then said that on the receipt of the report, he appointed the special constables. And he adds, " I verily believe that as the men of the said Dowager Maharanee are attempting to establish her possession in the said estate of Kujong by force, that it would be impossible to preserve the peace in and about that estate without a special police force being employed there."

We assume all the Magistrate here says about the necessity for additional Police to be perfectly correct. But he does not deny the Petitioner''s allegation as to his motive in suggesting that the particular man Gopinath and others of influence should be made constables, and when we read the order of Mr. Currie in which the suggestion was made, with the petition upon which it was founded, there is really no doubt about the matter. It is clear that the only legitimate object for appointing special constables is to strengthen the ordinary police force by the addition of suitable persons to their number, when the ordinary force find themselves too few to meet an emergency, and that in a case of dispute as to proprietary rights, it is an abuse of the law and an act of oppression to appoint the active men on one side as special constables, in order to prevent their asserting their alleged rights, and so to give an advantage to the opposite party.

The order of the District Magistrate appointing the ten persons as special constables would seem to have been transmitted to the local police-officers, and recorded at the Police office Then follow a series of transactions which are extremely irregular, and not altogether easy to follow. It is stated in the first of these petitions, and not denied that. on the 25th January, one of the Petitioners in the first petition, Ram Krishna, was arrested by the Police, and detained In custody till he executed a recognizance to appear before the Magistrate the next day. On that day we find a report from the Court Sub-Inspector to the Joint Magistrate, in which he says that "out of the six men away from Tikri who were appointed special constables, one man Gopinath was released on bail to appear within four days before Mr. Tims. Now, one Ram Krishna Balabantra has been produced. I solicit necessary orders regarding his appearance before Mr. Tims;" on which Mr. Inglis, the Joint Magistrate, made an order, "To find 100 Rs. bail to appear before Mr. Tims within four days."

The arrest of Ram Krishna by the Police was absolutely illegal. The taking of recognizances from him and from Gopinath to compel their appearance before Mr. Tims was absolutely illegal. And in Ram Krishna''s case at any rate Mr. Inglis is responsible, for he gave the order.

The next proceeding appears from the diary of Mr. Tims, the Police Inspector, under date the 4th February. He writes:--"This day, at 11 A.M., Ram Krishna Balabantra, Sadanund Patnaik, Ram Sardole Singh, and Jogendro Mohunty came to Tikri together and appeared before me. I have explained to each of them the order contained in D. 0. No. 3, of January 1886, and when I offered each of them their appointment certificates, belts, and batons, the whole of them totally refused to receive, and went away by saying that they will never do the duty of constables." He adds that be has reported this to the District Superintendent for his and the Magistrate''s order. The District Superintendent on the 6th February wrote an instruction to the Court Sub-Inspector, "Show Magistrate and ask for summons." Upon which Mr. Inglis, the Joint Magistrate, made an order, " Issue summons, sec. 173, to persons mentioned." The precise details of Gopinath''s alleged offence do not appear, but this much is clear, that his, like the others, consisted in refusing to serve as a special constable. Thereupon the five Petitioners in the first of the petitions before us were summoned to answer charges under sec. 173, Indian Penal Code; and at the time of the application to this Court the case stood upon the file of the Joint Magistrate.

Sec. 173 of the Indian Penal Code makes it a criminal offence, punishable under the section, "for any one intentionally to prevent the serving on himself or another of any summons, notice or order proceeding from a competent public servant, or to prevent the affixing of such a document, or to remove it when affixed, or to prevent the lawful making of a public proclamation."

That is the section under which the men have been summoned; the fact is that they refused to serve as special constables when ordered to do so. The facts and the charge have nothing to do with one another, no single point of connection, and this was at once admitted on behalf of the Crown upon the argument. We accordingly quashed the proceedings which are the subject of the first of the petitions before us.

The second of the petitions before us is by Gopinath Paryah, one of the parties to the previous petition. It, relates to a charge of extortion, under, sec. 384, Indian Penal Code, brought against him in connection with alleged attempts to collect rents on behalf of the Maharanee. The third petition is by Gopinath and two others, and relates to a charge of riot brought against them in connection with the same alleged attempts. The fourth petition is by Gopinath and four others, and relates to a charge of assault arising out of the same controversy. These three charges were all pending before the Joint Magistrate, Mr. Inglis, when application was made to this Court.;

We made an order in each of those three cases, at the close of the argument transferring the case to the district of Pooree for disposal. Having regard to the course of the proceedings before Mr. Inglis, the Joint Magistrate, in the case arising out of the appointment of special constables, which proceedings we have already examined, we think it undesirable that that officer should deal with any of these cases. Mr. Currie''s proceedings in connection with the transaction we have already described. We have only to add this :

Mr. Currie was not only the Collector of Cuttack, he was also Chief Magistrate of the district, and as such, for most purposes the principal representative and administrator of the law in the eyes of the people of the district, a position of great power and great responsibility in which it was of supreme importance that his acts should be examples of equal justice and obedience to the law. As Magistrate and as the officer responsible for the peace of the. district, it might well be Mr. Currie''s duty to take action, (either himself or through some Magistrate subordinate to him), with respect to the disputed possession of the Kujong estate. If he did so however, he was bound, in everything he did as Magistrate, to act with the same rigid impartiality as if the dispute had been between any two persons in the district. He was bound to re. member that questions of property are for judicial tribunals to decide, and that it is a great wrong if any officer by the use of his executive authority seeks to supersede those tribunals, or to usurp their functions. And it was certainly his duty in any steps he deemed it necessary to take, to keep within the limits of the law. But Mr. Currie''s whole course of conduct throughout these transactions, shows him in the light of an eager partisan of the Court of Wards in its dispute with the Maharanee. He has repeatedly endeavoured to dispose by unauthorised executive action of matters which the law reserves for judicial determination, and he has been betrayed into many illegal and irregular acts, and some of a highly oppressive character. He has, in our opinion, disqualified himself for the discharge of any judicial function, great or small, in any matter arising out of the controversy between the Maharanee and the Court of Wards. We could not, therefore, leave these cases to be dealt with by a Magistrate of his selection, and we had no alternative but to transfer them to another district. The grounds for transfer are much stronger than they were when the Court transferred the previous case in December last.