Jubba Mallah and Others vs Emperor

Shearer, J.—This is an appeal by three men, who have been convicted by the learned Special Judge of Muzaffarpur of waging war against the King. One of them, Jubba Mallah, has been sentenced to death, and the other two, Rupan Koeri and Subans Jha, to transportation for life. They were also convicted of rioting and of an offence under the Defence of India Rules, but in respect of these convictions, no separate sentences have been imposed.

At about 5 P.M. on 16th August 1942, a mob of about four thousand persons attacked the police station at Minapur. The police station was, then in charge of Sub-Inspector, L. Waller, who had an assistant Sub-Inspector, Maulavi Maghfurul Haq, and six constables under him. Mr. Waller had, however, been given to understand that the police station was likely to be attacked that day, and he had collected a very considerable body of dafadars and chaukidars in order to defend it. When he saw the mob approaching Mr. Waller ordered his; men to put on their uniforms, and then putting himself at the head of them took up Iris position at the gate of the police station. The mob called on him to surrender, but he made it clear to them that he was determined to resist. As the mob showed no indication of dispersing or withdrawing, he eventually fired into it with a double barrelled gun, with which he had armed himself. Ho was unable to re-load this gun, but succeeded in discharging his revolver a number of times before he was overpowered and badly assaulted. Some of his constables went to his assistance and succeeded in getting him into a verandah of the main building. The mob, then entered the police station and proceeded to destroy the records and furniture in it. They also entered the quarters, occupied by the Sub-Inspector and the assistant Sub-Inspector, and the barrack, occupied by the constables, and destroyed or carried away a good deal of moveable property. One of the men in the mob, who is said to have been the appellant, Jubba Mallah, climbed on the roof of the police station and hoisted a congress flag, which he had been carrying at the head of the mob. The broken furniture and other inflammable materials were collected in a heap in the compound of the police station and fire was set to them. In the meantime, the Sub-Inspector Mr. Waller, and the assistant Sub-Inspector and constables had succeeded in getting out of the police station. Mr. Waller went and hid in a makai field, some 300 yards or so away from it. He was accompanied there by his syce, Matuk Dusadh, who did what he could to relieve his suffering. Apparently, he was bleeding profusely, and had been so badly assaulted that he was unable to get further away. One of the constables, Ghugli Singh, who appears to have used a bhala in attempting to keep the mob out of the police station, was in much the same condition as Mr. Waller, and, like him had also tried to conceal himself in the fields. After the kindling of the fire, some men in the mob appear to have gone in search of the Sub-Inspector and constables. They came across Ghugli Singh, assaulted him further and dragged him back to the police station. Immediately afterwards, other men discovered Mr. Waller. They tied him to a pole, carried him back to the police station and flung him into the blazing fire. According to Ghugli Singh, who was lying within a very short distance of the fire, Mr. Waller crawled out of it but some men in the mob thrust him back into it again with lathis. According to Ghugli Singh, also these or other men proposed that he too should be burnt alive, but eventually, did not throw him into the fire on the ground that Mr. Waller was a Christian and he himself was a Rajput and it was not seemly or proper that the two of them should be burnt in one and the same fire.

News of the occurrence was brought to Muzaffarpur by Ramnaresh Singh, a literate constable, and Bhola Singh a constable at about 9 P. M. the same night. An Inspector of police at once set out for Minapur, but was compelled to turn back as he found that the road had been breached some three miles or so from Minapur and he was unable to get through, as a great, deal of water was flowing through the breach. It was not until 19th August 1942, that the District Magistrate and some troops succeeded in getting to Minapur. They found the fire still smouldering, and, in it some bones and the silver insignia worn by the Sub-Inspector on his uniform. An investigation was at once started, and, on 31st August 1942, a charge sheet was submitted and subsequently the Government of Bihar sanctioned the prosecution of the appellants and certain other men, some of whom were acquitted, and others of whom although convicted, have not appealed, on a charge of waging war against the King.

Until some three years or so ago, the appellant Jubba Mallah, who is a man in the middle thirties, appears to have earned an honest living, as his forefathers had done before him, by exercising his craft as a fisherman. Some throe years ago, however, he became a congress volunteer, and, since then, has apparently done little or no work and has moved about in the locality, of which Minapur is the centre, preaching the creed of the congress party. The assistant Sub-Inspector, Maulavi Maghfurul Haq, six constables and several chaukidars and dafadars all said that this man was one of the leaders of the mob. More particularly, they said that he had been carrying a congress flag at the head of the mob and that this congress fig had been hoisted on the roof of the police station. There is nothing to suggest that Jubba Mallah had made himself particularly obnoxious to the police at Minapur and that he may conceivably have been the victim of a conspiracy. It appears that two of the constables, who had been at Minapur when the police station was attacked, saw him on 19th August 1942, at Muzaffarpur, and recognising him as one of the leaders of the mob, at once took him into custody. Mr. A.C. Sinha who appears on his behalf, has frankly conceded that the evidence against his client is such that he is unable to invite us to say that it has not been shown that he was in the mob, but has contended, at some length and with much ability, that although he may have taken part in the occurrence, and by doing so may have rendered himself liable to severe punishment, the crime which he has committed, is not the crime of waging war against the King. Mr. Sinha relied mainly on a passage in the summing up of Tindal C.J. in the trial of John Frost, which occurred in R. v. Frost (1839) 4 Tr. N.S. 86. That learned Chief Justice is reported as having said:

I think the rule of law may be laid down in a few words in this manner: to constitute high treason by levying war, there must be an insurrection, there must be force accompanying that insurrection; and it must be for the accomplishment of an object of a general nature. But if all these circumstances are found to concur in any individual case that is brought under investigation, that is quite sufficient to constitute a levying of war.

Earlier, in his summing up, Tindal C.J. had quoted certain passages which occur in Sir Michael Foster''s Discourse on High Treason, and, on one of these passages, Mr. Sinha has laid considerable stress. The passage in question runs thus:

Insurrections in order to throw down all in closures, to alter the established law or change religion, to enhance the price of all labour, or to open all prisons--all risings in order to effect these innovations of a public and general concern by an armed force are, in construction of law, high treason within the clause of levying war; for though they are not levelled at the person of the King, they are against his royal Majesty, and besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property and all government too, by numbers and an armed force.

It is quite clear that, in making these observations, Sir Michael Foster had in mind certain of the early trials for high treason, and, in particular, the case of Burton, which occurred in 1597. The report of that case shows that certain persons were there charged "with conspiring to assemble themselves and moving others to rise and pull down inclosures." In the previous reign an Act had been passed making it a felony for "twelve or more persons to assemble with intent to pull down inclosures, pales and the like with force," and it was, in consequence, contended that, what Burton and the other prisoners had conspired to do, might amount to a felony, but could not amount to treason, as, if it was treason, there would have been no need for Parliament to have enacted such a statute. The contention was negatived on the ground that the prisoners had, conspired to pull down inclosures in general, and not certain inclosures in particular. This decision was followed in two subsequent trials for treason, namely in R. v. Peter Messenger (1668) 6 Tr. 879, in which certain persons were indicted for high treason in levying war against the King "on the pretence of pulling down bawdy-houses," and the case R. v. Dammaree (1710) Tr. 521, in which certain persons were indicted for high treason in levying war against the Queen "under the pretence of pulling down the meeting houses of the Dissenters." The ratio decidendi in all these cases will sufficiently appear from this passage in the summing up of Sir Thomas Parker C.J. in the latest of them, namely the case in R. v. Dammaree (1710) 15 Tr. 521. That learned Judge said this:

In the case of inclosures, where the people of a town have had part of their common inclosed, though they have come with a great force to throw down that incbsure, yet that is not levying of war, but if any will go to pull down all inclosures and make it a general thing to reform that which they think a nuisance, that necessarily makes a war between all the lords and the tenants. A bawdy-house is a nuisance and may be punished as such, and if it be a particular prejudice to any one if he himself should go in an unlawful manner to redress that prejudice, it may be only a riot, but if he will set up to pull them all down in general, he has taken the Queen''s right out of her hand, he has made it a general thing, and when they are once up, they may call every man''s house a bawdy-house, and this is a general thing, it affects the whole nation." What was really decided in these cases was that, in certain circumstances attacks by riotous mobs on private property might amount to levying war against the King. There is nothing in the decisions which in any way goes to support the contention which was put forward by the learned advocate for the appellant that, inasmuch as this mob contented itself with taking possession of one police station and did not manifest any intention of going on to take possession of any other police station, the offence which was committed, was necessarily the offence of rioting, and could not possibly be the more serious offence of waging war against the King. Mr. Sinha, in the course of his argument, referred to an observation made by Oldfield and Krishnan JJ., in In re Umayyathantagath Puthan Veetil Kunhi Kadir AIR 1922 Mad. 126, that it is sometimes a matter of difficulty to say whether there has been a levying or waging of war against the King, or merely a riot of a serious kind. This very point was, I find, dealt with at considerable length in the trial of Andrew Hardie, which took place in Scotland in (1820) 1 Tr. (N.S.) 610 at page 623. In his summing up in that case, the Lord President is there reported as having said:

Gentlemen, it may be useful to say a few words on the distinction between levying war against the King and committing a riot. The distinction seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King''s authority or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break into a particular prison and rescue certain persons therein confined, or to oblige the Magistrates to set them at liberty or to lower the price of provisions in a certain market, or to teardown certain inclosures, which they conceive to encroach on the town''s commons. All such acts, though severely punishable, and'' though they may be resisted by force, do not amount to treason. Nothing is pointed against either the person or authority of the King. For this reason, after the most mature consideration, the outrageous proceedings of the mob of Edinburgh, in the affair of Porteous, were held not to amount to treason, and the few persons who were tried, were tried only as for riot, because, although there was in that case an interference with the royal prerogative of mercy, yet as it was only directed against the exercise of it in that individual case, and did not, in any degree, go to impeach or resist His Majesty''s general exercise of it in other cases, it was determined to proceed, against those accused only as for riot, and not as for treason.

But, gentlemen, wherever the rising or insurrection has for its object a general purpose, not confined to the peculiar views and interests of the persons concerned in it, but common to the whole community, and striking directly the King''s authority or that of Parliament, then it assumes the character of treason. For example, if mobs were to rise in different parts of the country to throw open all inclosures and to resist the execution of the law regarding inclosures wheresoever attempted, to pull down all prisons or Courts of justice, to resist all revenue officers in the collecting of all or any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general measure, which by law can only be authorised or prohibited by authority of the King or Parliament, amount to levying of war against the King and have always been tried and punished as treason. It is, therefore, not the numbers concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local nature.

As the career and tragic end of Captain John Porteous are probably not known to many outside the country to which he belonged and as some knowledge of them may serve further to elucidate the observations of the Lord President, I may say that he was the Captain of the City Guard at Edinburgh and, as such was instructed to attend at a public execution which took place in that town in 1786, and prevent any disturbance. After the prisoner had been hanged, Captain Porteous, apprehending an attempt to cut down and remove the dead body, opened fire on the crowd, killing a number of persons and wounding many others. This he did without obtaining any order from any of the Magistrates who were present, and, indeed, apparently without consulting them. He was subsequently tried for murder and was convicted and sentenced to death. A memorial on his behalf was submitted to King George II, and, as King George II was then out of the kingdom, having gone to Hanover, Queen Caroline respited the execution for a period of six weeks. This enraged a great many people in and around Edinburgh and a conspiracy was formed to raid the prison in which Captain Porteous was confined and to take him out and hang him. The prison was, in fact, stormed, and Captain Porteous was taken from it to the Grassmarket where he had opened fire on the crowd, and was there hanged. Mr. Sinha has criticised an observation of the learned Special Judge that

it is a matter of common knowledge that the object of the recent disturbances and risings throughout the country was to paralyse the administration and to compel the Government to submit to the demands of the Indian National Congress.

The learned Special Judge, it is complained, has assumed that there was an insurrection and an insurrection for the accomplishment of an object of a general nature. There is a certain amount of force in this criticism, although, in fairness to the learned Special Judge, it must be observed that no such argument, as has been addressed to us with so much ability, was apparently addressed to him. Mr. Sinha, no doubt, went too far when he said that an attack, made on one police station, could not amount to waging war against the King, but he was correct in saying that, prima facie, the persons, who made such an attack, were guilty of rioting, and that, if the Crown charged them instead with waging war against the King, it was incumbent on the Crown to show that there was an insurrection and not a riot, and that the insurrection was for the accomplishment of an object of a general nature. Mr. Sinha was, also, correct in saying that there was no obligation on Jubba Mallah and his associates to show what their object was, and that it was for the Crown to establish that by evidence. As pointed out by the Lord President in (1820) 1 Tr. (N.S.) 610 it is the latter point which is the crux of the matter. Does the evidence on the record show conclusively what the object of this mob or of its leader was?

There is nothing in the evidence to suggest, and no reason whatever to suppose, that Mr. Waller or the assistant Sub-Inspector and the constables under him had done anything to arouse animosity against them in Minapur and its neighbourhood. On the contrary, it is to be observed that, although Mr. Waller fired into the mob with a gun and also with a revolver, the mob allowed him to get away from the police station. It was not until they had destroyed the records and furniture of the police station that it occurred to any of them to seek out the Sub-Inspector and the constables, who had escaped, and maltreat them. One of the chaukidars said that, when the mob appeared at the police station, its leaders called on them to remove and throw away their uniforms. A dafadar, Rajeshwar Singh, said that one Sahdeo Ojha, who had been in the mob, subsequently went round some villages in the locality, warning the dafadars and chaukidars not to go back to the police station or to communicate with or in any way assist the regular police. According to this dafadar, Sahdeo Ojha told him that he and other congress men had set up a thana of their own and would pay any chaukidars or dafadars who joined them. Another dafadar, Musafir Singh, said that this Sahdeo Ojha and some other congress men had actually set up a thana in a school building at Lautan, which remained there until a military force arrived in the locality. Among the slogans uttered by the mob were, it was said, e "Ungrez raj nash ho" and "Congress raj kaem ho." That the congress party is a political party with a very large number of adherents and that, at or about the time when this police station at Minapur was attacked, other police stations and public buildings over a wide area elsewhere were also attacked by persons who professed to be members of the congress party and to be acting on its behalf, are facts so notorious that judicial notice may, I think, properly be taken of them.

A Full Bench of the Allahabad High Court has already taken judicial notice of this vide Salig Ram Vs. Emperor, and the Courts in England have taken judicial notice of similar facts as, for instance, that particular areas have been attacked by hostile aircraft. "Insurrection" is defined in the Oxford Dictionary as the "action of rising in arms or open resistance against established authority or Governmental restraint."

As was pointed out in (1820) 1 Tr. (N.S.) 610 and has been pointed out in many other cases before and since, the numbers concerned and manner in which they were equipped or armed are not material, and it is, therefore, unnecessary for me to discuss the evidence that this mob or a portion of it was drawn up in military or semi-military formation. Even if the evidence is untrue--and it may perhaps be untrue, that is a matter of no importance whatever. The size of this mob was such that the men in it must have come from many different villages and the object of its leaders, as shown by the evidence, was to substitute for the authority of His Majesty the King-Emperor in the area round Minapur the authority of the congress party or of those persons who were or professed themselves to be members of the congress party and acting on its behalf in this area. Quite clearly, there was an insurrection with an object of a general nature, and any person, who voluntarily joined in that insurrection, as Jubba Mallah undoubtedly did, must be deemed, in law, to have waged war against the King.

Mr. Sinha then asked us to commute the sentence, which has been imposed on Jubba Mallah, from one of death to one of transportation for life. He pointed out that the ground, on which the learned Special Judge sentenced Jubba Mallah to death, was that he pushed Mr. Waller back into the fire when he attempted to get out of it, and that this particular act, ascribed to his client, rests on the evidence of but one man, Jhari Pasban, which, he says, is open to criticism. There is, I think, no reason to suppose that Jhari Pasban did not see the Sub-Inspector being burnt alive. He appears to have told one Hafiz Ahmad Karim that he had, and, it was in consequence of what this Hafiz Ahmad Karim told the police, that Jhari Pasban was examined at an early stage of the investigation. Mr. Sinha, however, points out that he would not seem to have told the investigating Sub-Inspector that Jubba Mallah pushed Mr. Waller back into fire. Mr. Sinha also points out that Matuk Dusadh, who was with Mr. "Waller when he was discovered hiding in the makai field by some men in the mob, was unable to say that Jubba Mallah was among these men.

It appears, however, that Matuk Dusadh ran away when he saw that the rioters had discovered where Mr. Waller was, and, if he was unable to recognize Jubba Mallah among them, that is not surprising. That Jubba Mallah was one of the men who carried Mr. Waller back to the police station is clearly established by the evidence of the constable, Ghugli Singh. Even if Jhari Pasban was not telling the truth, and it is somewhat difficult for an appellate Court to reject his evidence as to what exactly Jubba Mallah did when it is clear that he did see Mr. Waller burnt alive, and his evidence on this point has been accepted by the learned Special Judge who heard him give it, it is clear that Jubba Mallah cannot, on such a ground, escape responsibility for what was done. Jubba Mallah was undoubtedly one of the leaders of the mob and, as such, could, in all probability, have prevented the Sub-Inspector being burnt alive. As it was, he quite certainly was one of those who carried Mr. Waller back to the police station, and, as he and his companions carried him to where the fire was burning, and, as immediately afterwards, Mr. Waller was cast into the fire, it is not very material whether Jubba Mallah cast him into it with his own hands or later prevented him from getting out of it. I can see no reason to modify the sentence which has been imposed on this man, and I would accept the reference and dismiss his appeal.

The appellant, Subans Jha, was arrested on 31st August 1942, in the hat at Minapur by two chaukidars, Jata Mahto and Bhadai Gope. According to Bhadai Gope, his companion, Jata Mahto, drew his attention to Subans Jha, saying that he had been one of the rioters and that they ought to arrest him. Bhadai Gope said that he too then remembered having seen him in the mob and agreed to the suggestion which Jata Mahto had made. Mr. Prem Lall points out that, on the same day as Subans Jha was arrested, a charge-sheet had been submitted and that this charge-sheet does not contain Subans Jha''s name, although it contains the names of some five hundred men. The charge-sheet, however, contains the name of one Sahdeo Ojha and his brother of Haraka, to which village Subans Jha belongs. It may be that Subans Jha was the man thus referred to. In any case, assuming that no mention of him was, in fact, made in the charge-sheet, the omission would seem to have been an accident, as, sometime before the charge-sheet was submitted,'' the assistant Sub-Inspector, Maulavi Maghfurul Haq, had been examined. At the trial, Maulavi Maghfurul Haq said that he had recognized Subans Jha in the mob and that Subans Jha was a man who had been quite well known to him for some time. It was not suggested to Maulavi Maghfurul Haq that he had omitted to mention Subans Jha in the statement which he made during the investigation. Then the conduct of the two chaukidars, Jata Mahto and Bhadai Gope, in arresting Subans Jha as they did, makes it clear that they honestly believed that they had seen him in the mob. It was not suggested that either of them had or could possibly have had any motive for incriminating him. In addition to the assistant Sub-Inspector and these two chaukidars, another chaukidar, Ramrup Dusadh, and a constable, Debi Pande, spoke to having seen and recognized Subans Jha in the mob. Although the constable had not known him previously, the chaukidar, Ramrup Dusadh, had. According to Ramrup Dusadh, Subans Jha was carrying a jhanda or a small flag and was also one of those who threw brickbats. Bhadai Gope said the same. It was suggested that Subans Jha was a man whose mind was deranged or; partially deranged, and, if that is really so, the Crown may, perhaps, consider that he is a fit subject for the exercise of its prerogative of mercy. As matters stand, however, it is clear that Subans Jha joined this insurrection and his appeal must be dismissed.

The case against the remaining appellant, Rupan Koeri, rests on the evidence of Hafiz Ahmad Karim, a teacher in a local maktab and two chaukidars, Khakhan Dusadh and Bhola Dusadh. Hafiz Ahmad Karim said that he went to the police station to see if he could do anything for the wife and children of the assistant Sub-Inspector and that, when he went to the quarters of the assistant Sub-Inspector, he saw. Rupan Koeri among the rioters there and had some talk with him. Hafiz Ahmad Karim very frankly admitted that Palakdhari Mahto, an uncle of Rupan Koeri, had had some litigation with one Dhunmun Mahto, who is a tenant of his. As Hafiz Ahmad Karim took the family of Maulavi Maghfurul Haq away from Minapur, he must have gone to the police station and seen some of the rioters. I can see no very good reason to suppose that he did not see Rupan Koeri then, and was later induced by Dhunmun Mahto, who seems to hold very little land under him, to say he had. Khakhan Dusadh said that he had seen Rupan Koeri breaking up a cycle belonging to a constable, and Bhola Dusadh that he had seen him stealing clothes from the constables'' barrack. It is pointed out that neither of these chaukidars made any mention of these incidents to the Sub-Inspector, who examined them during the investigation. They would, however, seem to have told the Sub-Inspector that Rupan Koeri was one of the men they had recognized, and, if they did not tell him, or he did not record, what exactly they saw him doing, that is scarcely a reason for discrediting their evidence. The learned Special Judge was, in my opinion, right in acting on this evidence and convicting Rupan Koeri, and I would dismiss his appeal also.

Mr. Sinha, in his opening address, said that he challenged the validity of Ordinance 19 of 1943, but he did not pursue the point, and, as at present advised, I must follow the decision of a Divisional Bench of this Court in Cri. Revn. No. 34 and analogous cases of Jailal Sahu v. Emperor reported in AIR 1943 Pat. 346. As, however, this question does arise, a certificate u/s 205,''Government of India Act, will be granted, so that any of the accused may appeal to the Federal Court if they like.

Manohar Lall J.

I agree.