Jeobaran Singh and others vs Ramkishun Lal

Jwala Prasad, J.

[After stating facts as set out above His Lordship proceeded.]

That section (S. 16) only makes the maintaining of a ferry within the prohibited degrees an unauthorized act but is not in itself penal. It may give rise to an action for damages, but is not punishable under the criminal law. S. 28 is a penal provision which makes the maintenance of an unauthorized ferry under 8. 16 an offence when the ferry is used for conveying any passenger, animal, vehicle or other thing for hire. Accordingly, it is contended that the ferry in question was used for four days, namely, from 9th to 12th November, during the Sonepur Pair, for the purpose of carrying passengers, etc., for hire and thus the ferry was maintained for the aforesaid four days for the purpose of making profit by realizing tolls from passengers. The act of realizing tolls during the four days must be deemed to be one continuous act as implying the maintaining of the ferry under S. 16 of the Act. Therefore, each time the toll was realized during those four days would not constitute a separate transaction and would not form the subject of a separate charge or trial against the petitioners.

The word " ferry " has not been defined in the Act. 3. 5 simply says :

'' ferry '' includes a bridge of boats, pontoons or rafts, a swing-bridge, a flying bridge, a temporary bridge, and a landing stage.

The word must therefore be taken in its ordinary accepted legal significance. Literally it has been defined in Bouvier''s Law Dictionary as :

a liberty to have a boat upon a river for the transportation of men, horses, and carriages with their contents, for a reasonable toll. The term is used also to designate the place where such liberty is exercised. In law it is treated as a franchise, and defined as the exclusive right to carry passengers across a river, or arm of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another.

Continuing, the dictionary says :

In a strict sense a ferry is a continuation of a highway from one side of the water to the other and is for the transportation of passengers, vehicles and other property.

In order to constitute a ferry such as is contemplated by the Act in this country it is necessary that there should be two points on both sides of the river so that people and property may be conveyed from one side of the river across the other. It must be connected on both sides with lard on the bank of the river. In order to give full significance to this meaning of the term the Act has included in it " any other appliance by which the water is connected with the land. " This purpose may be served by a bridge of boats, pontoons or rafts, etc. In this sense the public ferry is created and leased on behalf of the, authorities, and to protect the rights granted under the lease with respect to a public ferry the Act has made it illegal to maintain a regular ferry on a river within two miles of a public ferry so as not to interfere with or affect the peaceful working of and making profit out of the public ferry leased to the contractor. It seems that; the idea is similar to that in England where, the aforesaid dictionary notes :

ferries are established by'' royal grant or by prescription, which is an implied grant in the United States, by legislative authority, exercised either directly or by a delegation of powers to Courts, commissioners, or municipalities.

Wherever such public ferries have been created provision has always been made to protect the interest of the public ferry by forbidding individuals erecting a competition ferry near about. One provision referred to in the dictionary is :

if an individual, without authority from the State, erect? a new ferry so near an older ferry, lawfully established, as to draw away the custom of the latter, such individual will be liable to an action on the case for damages, or to a suit in equity for an injunction in favour of the owner of the latter.

This seems to have been the object with which S. 18 has been enacted. The maintenance, if any, of a private ferry by the petitioners was in contravention of S. 16 of the Act for which they may be liable for damages and also an injunction may issue against them. If, in addition to maintaining such a prohibited private ferry they carried passengers and property for hire they are liable criminally under S. 28 of the Act, and each time they did convey for hire they became'' liable.

It seems that each trip was a separate transaction and can be tried separately. The question, however, is whether the petitioners should be tried simultaneously for all the offences committed by them between the 9th and the 12th November, 1921.

The offences were committed within a space of one year and the principles underlying Ss. 231 and 240 of the Code of Criminal Procedure may usefully be availed of. The Magistrate should try at one time only three of these transactions and use the remaining transactions as evidence in the case for the purpose of determining the amount of punishment and damages payable under the Ferry Act. If conviction is obtained on such a trial, the Court should stay the inquiry into or trial of the other charges which will have the effect of an acquittal of the accused on those charges subject to the event of the conviction being set aside by higher authorities. If the conviction is set aside the Magistrate may proceed with the trial or inquiry of the other charges.