Lal Mohammad and Others vs Emperor

James, J.—The petitioners have been convicted of the offences of forming an unlawful assembly for the purpose of obstructing the cutting of bamboos on a certain plot and also for theft of bamboos which had been cut. The plot on which the bamboos stand has apparently been used on several occasions for the purpose of Mahomedan burials, and the petitioners when they were placed on their trial asserted that they had an exclusive right to the bamboos on this land which could be used only for Mahomedan funerals.

Sir Ali Imam on behalf of the petitioners argues that if they believed that they had the exclusive right to these bamboos and in support of that bona fide claim of right they prevented the proprietors'' men from cutting them, they committed no offence. But the learned Magistrate found that the proprietors had been exercising their ordinary rights in respect of the bamboos and other trees on this land, whether the Mahomedans took bamboos on the occasions of funerals or not; and the learned Sessions Judge affirming this finding clearly held that, although the Mahomedans had been taking bamboos for use in graves they had not at any time done this to the exclusion of the rights of the proprietors of the land. It appears to be clear from the findings of the trial Court that the proprietors had been cutting these bamboos regularly as a matter of right, and it would be impossible to hold that the petitioners were asserting any right in good faith when they prevented the proprietors'' men from cutting the bamboos or from taking away the bamboos which had been cut. It is suggested that the petitioners ought not to have been convicted of theft in respect of the bamboos which they removed, because they had no dishonest intention, that is to say, it has not been shown that they had any intention of converting the bamboos to their own personal use; but they manifestly took away the bamboos with the intention of causing wrongful loss to the proprietors who were entitled to them and it cannot be said that their intention was not dishonest within the meaning of the word as used in the Penal Code.

The petitioners have been bound down u/s 106, Criminal P.C., The Magistrate originally convicted them u/s 147, I.P.C., but this conviction was altered on appeal to (sic) u/s 143, while the order u/s 146 was affirmed.

Now the provisions of Section 106 expressly exclude Section 143 in reciting the offences, conviction of which will involve liability to be bound down, and if the order of the learned Sessions Judge is legal it must be justified as following on his affirmance of the conviction u/s 379, Sir Ali Imam suggests that the words "assault or other offence involving a breach of the peace" in Section 106 means this: that the definition in the Penal Code of the section under which a person is convicted must be such that it is not possible to commit the offence without a breach of the peace. A breach of the peace is not an essential part, nor any part at all, of the offence of theft as defined in Section 378, and Sir Ali Imam argues accordingly that it is not proper to make an order u/s 106, following on as conviction u/s 379. In Emperor v. Manik Rai [1911] 33 All. 771 persons who had been convicted u/s 434 were bound downs although the evidence showed that the accused were actually prevented from committing a breach of the peace by the fact that the other party offered no resistance as happened in the present case. Sir Ali Imam argues that case ought not to be treated as an authority in this Court where decisions of the Calcutta High Court should be preferably followed; but I do not find that the Calcutta High Court has placed upon the language of Section 106 so narrow an interpretation as Sir Ali Imam would place upon it. In Baidya Nath Majumdar v. Nebaran Chander Ghose [1903] 30 Cal. 93 it was laid down that the Court applying the provisions of Section 106 ought to record a clear finding with respect to the facts which made the provisions of the section applicable, in cases in which the offences of which the accused were convicted did not in themselves, and apart from any other incidents, come within the terms of Section 106. Now in that case the petitioners had been convicted under Sections 447 and 426, I.P.C., but it did not appear from the judgment that the accused had committed or were about to commit any actual breach of the peace. In the present case I consider that the incidents which form the transaction for which the petitioners have been convicted do in themselves come within the terms of Section 106, that is to say, to form an unlawful assembly and by means of that unlawful assembly to overawe and intimidate other persons, preventing them from doing what they are legally entitled to do and compelling them to abandon their property which they are entitled to keep, does actually amount to a breach of the peace of a most serious nature; and I consider that on the findings of the trial Court the order u/s 106 would have been quite justified, even if he had chosen then to adopt the more lenient course which, the Sessions Judge adopted and to convict the petitioners u/s 143 instead of u/s 147.

I do not consider that the sentences imposed by the Sessions Judge are severe and I maintain his finding and order and dismiss this application.