Kishan Gopal Marwari and Others vs Emperor

Allanson, J.—The four petitioners have been convicted by a First Class Magistrate u/s 147, 448 and 426, I.P.C. and have been sentenced to a fine of Rs. 40 each u/s 147. An application to the Sessions Judge has been rejected.

The complainant''s master brought a suit to which one Mangal Chand Marwari who was an accused in this case and has been acquitted, was party regarding a house purchased by the complainant. The suit was decreed in 1927, and the plaintiff took out execution of the decree and obtained delivery of possession on 5th Angust 1927. Delivery was given by a civil Court commissioner who pointed out the boundaries. Immediately after delivery of possession of the land, which lies in the town of Purulia the decree-holder began to erect a pacca wall along the boundary line, the work went on till 5th August without any interference, but on the next day a number of men including the present petitioners came and began to pull down the wall. It is also alleged that assaults were committed on some of the complainant''s labourers.

The important question for consideration is whether the petitioners were justified in their action. It is contended that they had a right to abate a nuisance, and that the right of way and the light of the adjoining house was interfered with by the erection of this wall. The defence called no witness at all; so there is no evidence on the records as to the extent, if any of the interference with any right of way or access to light by the construction of the wall. It was argued that since the occurrence the municipality has refused sanction to the erection of the wall, and that in Section 144 proceedings the complainant''s master has been restrained from proceeding with the wall until the matter has been decided by the civil Court. What has happened since appears to me not to be of importance. The land was in the town, the wall was being built on land the possession of which had just been given to the complainant''s master as the result of the suit to which some of the persons who interfered were parties. No doubt, the right to abate nuisance exists but even if this had been a civil suit for trespass it would have been incumbent on the opposite party to prove that an easement of theirs had been interfered with. It is contended on behalf of the petitioners that they were not enforcing a right or supposed right but were maintaining the status quo, and reliance was placed on Shunher Singh v. Burmah Mahato 23 W.R.25 and Empress v. Rajcoomar Singh [1877] 3 Cal. 573. In the former case the question was whether certain people were justified in maintaining undisturbed the enjoyment of right over certain water, and it was held that the accused persons had only gone to see that no one interfered with the passage of water. On behalf of the opposite party my attention-was called to Emperor v. Gulam Hussain [1909] 11 Bom. L.R. 849. That was a case where certain persons were convicted u/s 143 for annul awful assembly by which they removed certain pegs that had been put down by the Bombay Municipality. The accused claimed a public right of way. The Magistrate, who tried the case, held that it had not been proved that there was such a public right of way, but he took the view that even assuming that there had been such a right of way the accused persons had no right, to come in overwhelming force bringing with them certain Pathans. The High Court on appeal, where the defence taken was that the facts disclosed only a lawful abatement of a nuisance pointed out that the question ultimately was one of fact, on which little direct assistance could be obtained from other cases decided on their own particular set of facts.

They further pointed out that the Magistrate had no right to make the assumption that he did, viz., that there was a public right of way; that the claim might have been honestly entertained, but none the less it was a disputed claim and not an admitted claim or an ascertained fact. They further said as follows:

The question between the contending parties being still undecided or decided only on the trustee''s favour the remedy properly available to the accused was a civil suit;, and it is certainly not open to them now to beg the question in issue by assuming the validity of their disputed claim and to justify their violence on the plea that the trustee''s buildings were a nuisance. The requirements of Section 141, Clause (4) were fully satisfied; the accused by means of the show of criminal force deprived the trustees of the rights of which they were in enjoyment and further enforced their own supposed right.

In this case, the case of Empress v. Rajcoomar Singh [1877] 3 Cal. 573 above mentioned was referred to. The facts in the latter case had no bearing on the question before the Court, and for the same reasons I find that they have no bearing on the facts of the present case.

The other point taken was that only four out of eleven accused that were put on their trial were convicted, and there should have been no conviction u/s 147, I.P.C. as there is no finding that five persons or more took part in the unlawful assembly. Though only four names were mentioned in the first information that was given to the police at once, the entry shows that more than four persons were alleged to have taken part in the occurrence. The learned Magistrate was of opinion that though more than four persons took part in the occurrence there was no legal evidence on which others than the four mentioned in the first information should be convicted. It is wholly improbable that four persons only could have stopped this work. The conviction, in my opinion, was a proper one. The petitioners took the law into their own hands. If they had exercised a little patience they would have secured redress if their rights had been affected. This is shown by the fact that the Municipality had taken action and refused sanction to the construction of the wall, permission for which was not taken by the complainant''s master.