Jeobaran Singh and Others vs Ramkishun Lal

Adami, J.—The petitioners have been convicted u/s 28 read with Section 16 of the Bengal Ferries Act (I of 1885) and sentenced to pay a fine of Rs. 40 each.

There are five ferries connecting the southern, or Patna bank of the Ganges with the northern, or Chapra side and they are the following given in order from west to east:

Dighaghat to Paleza (Thana Sonepur):

Mahendnxto Sabalpur and Kalisthan (Thana Sonepur).

Ranighat and Pathri to Konhara (Thana Hajipur).

Khajekalan to Barabanki; and

Maroofganj (Adrak) Damriahi and Jathuli (Thana Fathua), on the south bank of the Ganges, to Latiahi on the north bank.

They are collectively known as the Patna-Ganges Ferry but in fact each ferry is an independent ferry and. they have generally been all held together under one kabuliyat.

The petitioners, Jeobaran Singh and Rang Singh, were lessees of these ferries up to the 31st of March, 1924, when their lease expired. In 1924, a notice was issued by the Magistrate of the Patna District that the above ferries would be re-settled u/s 9 of the Bengal Ferries Act on the 24th March, 1924. In that notice it was remarked: "All these ghats will include the rights to ply both ways; the five ferries are independent, and the lease of these does not give the lessee the right to ply between a point included in another ferry, nor does it give the right to'' ply between two points on the same bank."

It appears that Bhagwat Narain Singh asked permission of the Magistrate to bid on behalf of Jeobaran and Rang Singh but the Magistrate refused to allow either of these two petitioners to take lease of the ferry, since during the term of their late lease they had mismanaged the ferry. There was a keen contest at the auction and the highest bid was made by Rai Bahadur Chandra Khetu Singh and Bhagwat Narain Singh who together bid for the lease arid it was knocked down to them. These two gentlemen then executed a kabuliyat which was registered. Under the terms of that kabuliyat, the lessees undertook not to sublet or transfer the lease to any other person. It appears that Bhagwat from the first had intended to represent Jeobaran and Rang Singh, and after he had obtained the lease he executed a sublease in favour of Jeobaran and Rang Singh but, when these two sought to have the sub-lease registered, Bhagwat Narain refused to register it, and thereupon there was an application for compulsory registration, which, I believe, led to an application to this Court against the order of the Registration Officer and this Court directed its registration.

Jeobaran and Rang Singh were naturally disappointed at their failure to obtain a lease of the ferries, and were on bad term is with Rai Bahadur Chandra Khetu Singh and Bhagwat Narain because they had obtained the lease and because Bhagwat refused to register the sub-lease. They knew that they had no right to maintain a ferry. They had on their hands two steamers, the "Trout" and the "Phlox", which they had used during the term of their lease and, when the Sonepur fair came on, they conceived the idea of utilising these steamers in carrying visitors to the fair across the Ganges. From the 9th to, the 12th November, during the Sonepur fair, it is alleged by the prosecution that they carried passengers from the Maroofganj ghat to Sabalpur calling at other places on the way. Rai Bahadur Chandra Khetu Singh finding out what was going on informed the authorities. A drummer who Y was proclaiming on behalf of Jeobaran that steamers would carry passengers to Sonepur was stopped by the Police, and also orders were passed u/s 144 restraining Jeobaran and Rang Singh from maintaining the ferry.

After that Rai Bahadur Chandra Khetu Singh, through his servant, filed 24 complaints at Patna and 11 at Chapra. The complaints stated that Jeobaran and Rang Singh had carried passengers from Maroofganj to Sabalpur. I may mention that Sabalpur is the ghat for Sonepur. The petitioners then put in a protest against the filing of so many as 24 complaints, asserting that the offence, if committed, was a continuing offence and that there could not be 24 separate trials each relating to one crossing. In that same petition it was objected that the ferries were not public ferries and, therefore, no offence could have been committed. The matter came up to this Court and Jwala Prasad, J., in the case of Jeobaran Singh v. Ram Kishun Lal 92 Ind. Cas. 871 : 4 Pat. 503 : AIR 1925 Pat. 623 : 27 Cr.L.J. 359 held that each trip on which passengers were conveyed for hire would constitute a separate transaction, and that there could be a separate trial for each, but that the Magistrate should try at one time only three of these transactions. Consequently the petitioners were put on trial with regard to three trips only which were, alleged to have been made on the 11th November, one starting at 11-30 A.M. another at 5 P.M. and another at 9 P.M.

In the complaints it was stated that the petitioners had carried passengers for hire from Maroofganj to Sabalpur, that is, from one end of the line of ferries to the other; but evidence was produced to show that the steamer which the petitioners, were plying stopped at Khajekalan, Pathri and Ranighat, each of which was the starting place of a ferry. As a matter of fact the judgment shows that only one of the, prosecution witnesses mentioned these three places, the others mentioned only that the steamer stopped at some places but they did not know their names. The evidence showed that Jeobaran Singh and; Rang Singh were on the boats and were superintending the collection of fares. The learned Magistrate found that, by their action, the petitioners had contravened the provisions of Section 16 and were guilty u/s 28. An application was then made to the Sessions Judge to make a reference to this Court but the Sessions Judge refused to interfere.

Section 16 of the Bengal Ferries Act runs as follows:

No person shall, except with the sanction of the Magistrate of the District, maintain a ferry to or from any point within a distance of two miles from the limits of a public ferry provided that in the case of any specified public ferry, the Lieutenant Governor may, by notification, reduce or increase the said distance of two miles to such extent as he thinks fit: Provided also that nothing hereinbefore contained shall prevent persons keeping; boats to ply between two places, one of which is without, and one within, the said limits, when the distance between such places is not less than three miles, or shall apply to boats which the Magistrate of the. District expressly exempts from the operation of this section. Section 28 runs: "Whoever conveys for hire any passenger animal, vehicle or other thing in contravention of the provisions of Section 16 shall be punished with fine which may extend to Rs. 50.

To obtain a conviction u/s 28 it is necessary to show that the ferry is a public ferry. Section 6 of the Act requires a declaration fey-notification in the Official Gazette of what ferries shall be deemed to be public ferries, and no ferry is a public ferry unless there has been a notification to that, effect u/s 6 with regard to it, or unless the ferry has previous to 1885 been determined or declared to be a public ferry: under Regulation VI of 1819 or Bengal Act I of 1866. In this latter case u/s 3 of the Act such determination or declaration shall be held to be equivalent to a notification u/s 6. Section 6 also enables the Government to define the limits of a public ferry by notification.

The point is taken before me that these ferries are not public ferries and on the other side it is urged that the point was not taken in either of the lower Courts. It is certain, however, that the petitioners took the point from the very start, for they included it in their petition protesting against the procedure followed in proposing to try the 24 complaints separately. It was incumbent on the trial Court to satisfy itself that the ferries were public ferries. There is no evidence at all on the record to show that any notification has been issued u/s 6 with regard to these ferries and in fact it is admitted by the prosecution that there has been no such notification. It is urged, however, that the ferries were public, ferries long before the commencement of the Bengal Ferries Act of 1885 and that no fresh notification was necessary.

Now with regard to this, inquiries have been made and for that reason the delivery of this judgment has been postponed for a lengthy period. It appears that in 1865 the management of all public ferries situated within the limits of towns and places into which the Municipal Act, III of 1864, had been introduced was to devolve upon the Municipalities. It was not specified that any of the ferries now in question came under the management of the Patna Municipality. In a letter No. 101G, dated the 15th February, 1896, the Commissioner of the Patna Division stated that the Municipal Ferries were the following:

Digha and Paleza.

Mahendru and Sabalpur.

Khajekalan and Nauzar

Maroofganj and Dumriahi,

and these ferries appeared, to have been made over to the Municipality by the Government about 30 years before; so that it would seem that the four ferries mentioned in that letter had been, treated as public ferries and had been entrusted to the management of the Municipality of Patna. Beyond that reference to the four ferries there is nothing to show positively that the ferries now in question are public ferries, but it seems to have been always assumed that they are public ferries and they have been mentioned as being such in proceedings in the Legislative Council. In their kabuliyat the present lease-holders of the ferry have described them as public ferries but that, of course, does not bind the petitioners, in the letter of 1896, there is no mention of the ferry from Ranighat and Pathrito Konhara; it seems that at that time that ferry was not held to be a public ferry, nor do we know when it was established. The omission is an important one in this case for the prosecution evidence goes to show that the last stopping place of the petitioners'' steamer on the Patna side was at Ranighat and from thence it proceeded to Sabalpur. Though it has been assumed that these ferries are public ferries, there is no certain evidence that they are public ferries, and the prosecution have not attempted to prove them to be such. I am inclined to think that the petitioners are entitled to take advantage of any shadow of doubt that there may be on the subject. It would be well, if the question were put beyond all doubt by the issue of a notification u/s 6.

For the purposes of a prosecution u/s 16 read with Section 28, it is important that the limits of each ferry should be known. There is nothing to show what the limit of each of the five independent ferries is and there has been no notification u/s 6. The learned Magistrate held, that, because the petitioners had not pleaded that the spot at which they landed passengers was more than three miles from Ranighat and had in fact pleaded that they never plied a steamer at all, it was unnecessary for him to take into consideration the proviso to Section 16; but, in my opinion, in this case it was very necessary to find out whether in fact the accused were committing any offence by plying from Ranighat, which is the starting point of the ferry to Konhara, to Sabalpur, which, is the ghat of the ferry between Sabalpur and Mahendru. If the distance between the Ranighat ferry and the part of Sabalpur at which the steamer landed its passengers is more than three miles, it would appear that the petitioners were entitled to the benefit of the proviso to Section 16.

It has to be borne in mind that these five ferries do not form a combined ferry but according to the notice issued announcing 7 the auction sale each ferry is an independent ferry. If a steamer started from Ranighat and proceeded to a point which is beyond three miles the limits of the Ranighat ferry, the offence u/s 28 read with Section 16 would not be committed even assuming that the Ranighat ferry and the Mahendru, Sabalpur ferries are both public ones. The prosecution have taken no pains either to show what the limits of the various ferries are or what the distance between Ranighat and Sabalpur is. It would seem, however, that the distance is well over three miles. Prosecution witness No. 3 states that Sabalpur is four or five kos, that is to say eight or ten miles, from Khaje kalan ghat, and it would appear that Khajekalan is only a mile or two from Ranighat. It has to be borne in mind that each of the ferries is independent, though leased under a combined kabuliyat, and we have to consider them from the point of view of each being under a separate lessee.

The plying of a boat for hire along the one bank of the river would be no offence. The Ganges is a navigable river and is a highway, and the taking of a steamer from Maroofganj right along the southern bank and stopping at Knajekalan, Mahendru and Digha would not make the petitioners liable to any punishment; they would have a right to take a boat along the Ganges. The question is one only of ferrying, across, the Ganges from one bank to the other.

It being somewhat uncertain whether all these ferries are public ferries, and it being more doubtful still whether the Ranighat to Konhara ferry was ever considered a public ferry previous to the passing of Act of 1885, and there being also nothing to show what are the limits of the various ferries or whether the distance between Ranighat and Sabalpur was less than three miles, I think it should be found that the petitioners have not been satisfactorily proved to have committed an offence under the Act.

With regard to the claim put forward by the petitioners that under their sub-lease they had a right to ply a ferry, it is quite, clear that the contention cannot be supported. Only those persona have a right to ply a ferry who have a lease from the District Magistrate and the petitioners had no such lease. Any arrangement they came to with Bhagwat Narain could not avail them at all.

There is another point which has not been considered by the lower Courts. The petitioners other than Jeobaran and Rang Singh can hardly be said to (have been maintaining a ferry and to have been conveying for hire the passengers for they were mere servants of the other two petitioners. In the case of Sheosahai Singh v. Cheta Narain Singh, which was a case similar to the present one, Bannerjee and Stevens, JJ., of the Calcutta High Court stated that Section 28 quoted above makes it penal for any one to convey for hire any passenger, animal, vehicle or other thing in contravention of the provisions of Section 16, and Section 16 is contravened when a ferry is maintained without the sanction of the District Magistrate to or from any point within a distance of two miles of a public ferry. The way in which the offence is defined by Section 28, which refers to Section 10, as containing-one of the essential elements necessary to constitute the offence proved, goes to show that the person intended to be punished by the section primarily is the person who maintained a ferry in contravention of Section 16 and who, in working such ferry, conveys for hire any passengers, animal, vehicle or other thing. His servants or other persons helping him cannot be said to be doing so for hire because the hire does not belong to them, nor can they be said to have contravened the provisions of Section 16, the ferry not being maintained by them but only by the farmer".

There is not sufficient material to show that these other petitioners were cognisant of the fact that Jeobaran and Rang Singh were maintaining the ferry in contravention of Section 16 so as to make them liable as abettors.

The conviction, therefore, of the petitioners other than Jeobaran and Rang Singh would have to be set aside in any case.

Jeobaran Singh and Rang Singh are said each to have had a steamer, the "Trout" belonging to Jeobaran Singh and the "Phlox" belonging to Rang Singh, but neither the judgment nor the evidence shows clearly which of these steamers was traveled on by the witnesses who give evidence as to their conveyance. It would seem that it was the "Trout" because one witness said that he saw from another steamer the "Trout" plying on that day. But it is quite uncertain which steamer really was used or whether it was the same steamer in each of the three cases.

As a result, in my opinion, the prosecution has failed to show that the petitioners committed an offence u/s 28, and I would, therefore, direct their acquittal. The fines, if paid, will be refunded.