Joint Agents, I.G.N. and Ry. Co. and R.S.N. Co. Ltd., Digha vs Chandra Ketu Narain Singh

Courtney-Terrell, C.J.—This is a petition for the revision of an order passed u/s 144, Criminal P.C. by the-Sub-Divisional Officer of Patna City. The proceedings were brought before the Magistrate in the following circumstances. Rai Bahadur C.K.N. Singh has a right of ferry across the Ganges between Digha Ghat and Mahendru Ghat on the south side of the river and Paliza Ghat on the north side and his monopoly right to that ferry is beyond dispute.

The persons against whom he complained are the Indian General Steam Navigation and Railway Company, the petitioners before me, who had a fleet of steamers plying up and down the river over a course of some hundreds of miles calling at various stations on the north and south banks of the river in the course of their journey. The application was ordinarily made for the issue of a summons u/s 16, Bengal Ferries Act, calling upon the petitioners to shew cause why the company should not be convicted for an offence under that section. The Magistrate however under an apprehension that a breach of the peace might arise betWeen the parties issued the order u/s 144, Criminal P.C. which is complained of before the question of the alleged offence u/s 16 could be dealt by the regular Court in the regular way. In this decision recording his order the Magistrate went beyond the necessities of the case and came to a certain conclusion with regard to the rights of the parties. It would have been sufficient for his purpose to have refrained from deciding the question of right and to have made an order of a kind narrower than the order which he has in fact made. He issued notice to the petitioners restraining them:

from carrying passengers for Paliza Ghat from any point on the southern bank within my jurisdiction being within a distance of two miles from the limits of the public ferries for a period of one month from this date.

In obtaining that order the opposite party, the owner of the ferry, set up the following allegation of his rights. He said that he alone was entitled to carry passengers backwards and forwards from the two stations on the south bank of the river to the station of Paliza Ghat on the north side and that that was his monopoly and that the petitioners in this case in plying their steamers, up and down the river had no right to carry passengers between these stations.

The answer of the petitioners to that contention was this: They said that they had the right to carry passengers up and down the river, the, station on the north side of the river being their starting station and a station far down on the Ganges near Calcutta being their terminal station and that in the course of the journey they were entitled to go from Paliza Ghat on the north side of Digha, to Mahendru and Mahabir Ghats or the south side, and on their homeward journey they were entitled to call at Mahendru Ghat, Digha Ghat and Paliza Ghat and that they were entitled to carry passengers for any limited portion of their entire long trip and notably between Paliza Ghat and Digha Ghat and between Paliza Ghat and Mahendru Ghat. It is this right which the Magistrate purported to decide and he decided that notwithstanding that the petitioners in this case had a right to carry out a long journey they were not entitled to take passengers on the limited journey from Paliza to Digha or from Paliza to Mahendru Ghat, and he restrained them from so doing.

The complainant had alleged before the Magistrate certain facts which an examination of the ''Magistrate''s decision leads me to conclude, he found to be proved and the allegation which he considered to be proved and which might have justified him in issuing an order of a limited character u/s 144, Criminal P.C. was that not only had the petitioners carried passengers on the short part of their long journey but in so doing they had charged a lower fare than the monopoly fare which the opposite party is entitled to charge, and further that they had publicly been asking passengers to travel by their steamers for the limited journey, and there was in his mind a fear that a breach of the peace was likely to arise.

The only point which I feel called upon to decide here is whether the Magistrate was right in restraining the petitioners before me from carrying passengers within the area of the opposite party''s ferry. To my mind it is perfectly clear, firstly, that the company is entitled to begin its long-trip journey at Paliza. To accept passengers for a short part of that journey only and to confine their contract with respect to any of their passengers to carrying them is the long journey and Paliza Ghat to the station at Digha Ghat or to the station at Mahendru Ghat and to deposit the passengers there, these passengers having completed their journey, provided that the journey made by the boat which is carrying them is the long journey and is not confined substantially to the mere cross-river journey.

Similarly on the return journey the company are entitled to accept passengers at Mahendru Ghat or Digha Ghat and carry them across to Paliza Ghat and deposit them there notwithstanding that the passengers are only taken over that short part of the residuum of the long journey, and the Magistrate''s order in restraining the company from conducting themselves in that way is to my mind erroneous. But I wish to make the following observation to prevent a conceivable abuse by the petitioners of that state of the law. If it should transpire as a result of the prosecution of the petitioners for infringing the ferry owner''s monopoly that the petitioners had themselves differentiated the beginning of their long distance journey from the rest of it by charging a fare whose rate was lower than the rate charged for the major part of the journey then they might be held themselves to have differentiate from the rest of the journey the journey over the ferry distance and it might on such facts be concluded that they were maintaining a ferry although the ferry was one which piled at infrequent intervals. The real distinction which must be made is between a long distance journey and a ferry journey and my decision is not intended therefore to protect the petitioners if they should conduct themselves in that way.

It has been argued by the opposite party that the order u/s 144, Criminal P.C. passed by the Magistrate has now spent itself. That is perfectly true, but nonetheless this Court is entitled to interfere because the order purported to decide upon the rights of the parties.

I therefore allow this petition and the order of , the Magistrate must be set aside. It is not possible now, the order having expired, to modify it. It must be set aside without prejudice to a subsequent prosecution which may be started u/s 16, Bengal Ferries Act, and without prejudice to any decision which may be arrived at on proof of the necessary ingredients for constitution of the offence.