Tanak Chaudhry vs The King Emperor

Kulwant Sahay, J.—The petitioner has been convicted by the Sub-Divisional Magistrate of Machubani for rioting u/s 147 I.P.C. and has been sentenced to six months rigorous imprisonment. The conviction and sentence has been upheld on appeal by the Sessions Judge.

The facts shortly stated are that in village Mukhiapati one Ramchander Babu and Sunder Babu had each eight annas share and each had a kutcherry house situated therein, the kutcherry of Ramchander Babu being to the north of that of Sunder Babu. The two kutcherries were surveyed in plots 2432, 2433, and 2437, in the Cadastral Survey. The entire sixteen annas of the village were sold to Babu Mahanti Lal and others in the following shares: Babu Mahanti Lal and others 8 annas, Babu Anrudh Singh and others 4 annas, and Babu Prayag Singh and others 4 annas. There was Collectorate partition of the village and in that partition all three plots whereupon the two kutcherries were built fell to the share of Babu Anrudh Singh. An objection was filed by Babu Mahanti Lal who was in possession of one of the kutcherries, and subsequently there was a compromise between the parties whereby it was agreed that one of the kutcherries with the lands and trees standing thereon be allotted to Mahanti Lal and in exchange thereof Mahanti Lal should make over certain zirat lands to Anrudh Babu. This compromise was filed before the Collector and on the 16th of July 1919 the Collector gave effect to this compromise and made the final order in the partition case. Delivery of possession was given on the 27th April 1920, and since then disputes have been going on between Mahanti Lal''s party and Anrudh Singh''s party as regards the possession of the kutcherry. In 1921 there was a case u/s 447 I.P.C. about dismantling the cook-shed attached to the kutcherry. In 1922 there was a proceeding u/s 144 Cr. P.C. relating to the kutcherry. The occurrence giving rise to the present case took place on the 19th June 1922. On that date at 9 A.M. the complainant, who is a servant of Babu Mahanti Lal, lodged a Sanha before the Police to the effect that on the morning of that date while he was alone in the kutcherry Anrudh Babu''s men came and threatened him and that there was a likelihood of the breach of the peace. The Sub-Inspector deputed a constable to see that no breach of the peace occurred and the complainant with the constable returned to the village at about 2 P.M. when he found that the kutcherry was no longer existing and the land had been ploughed up. The Sub-Inspector arrived in the village at about 5 P.M. and then the complainant lodged his first information in which the present petitioner was named for the first time. The information was to the effect that in the absence of the complainant the petitioner came there with a mob, dismantled the kutcherry and ploughed up the land. An investigation was made by the Sub-Inspector with the result that the petitioner and others were placed on their trial and convicted as stated above.

The defence story was that the exchange was never given effect to and that the delivery of possession on the 27th April 1920 was in accordance with the original allotment whereby the three plots of land upon which the two kutcherries stood were allotted to petitioner''s master and that the petitioner''s master continued in possession throughout.

It has been found by both the Courts below that the petitioner''s master was not in possession of the kutcherry which was given to Babu Mahanti Lal under the compromise; that the compromise was given effect to fey the Collector and although in the petition of compromise it was stated that a regular deed of exchange would be executed between the parties, yet title passed to Mahanti Lal under the Collectorate partition which gave effect to the compromise.

Having regard to the finding of both the Courts below that Mahanti Lal never parted with the possession of the kutcherry and, that Anrudh was not given actual possession of that kutcherry house, the argument of the learned Vakil for the petitioner that in dismantling the kutcherry house, the petitioner was not guilty of any criminal offence inasmuch as the kutcherry house belonged to his master, cannot be accepted. The learned Vakil relies on the case of Ramkrishna Singh v. The King Emperor (1922) Pat. 197: 3 P.L.T. 335: 23 Cr. L.J. 321: 66 I.C. 817 and argues that the petitioner by destroying the property belonging to his master did not cause any mischief, and therefore he could not be convicted of the offence of rioting the common object of which is stated to be "to commit mischief to Mahanti Lal and his co-sharers by dismantling their kutcherry house and by means of criminal force or show of criminal force to obtain possession of its site and thus to enforce right or supposed right of Anrudh-Singh". The facts of that case are quite distinguishable from those of the present case. In that case there was a delivery of possession under order XXI rule 95 of the CPC and the complainant who was the judgment-debtor still asserted his possession after delivery of possession by the Civil Court. It was held that the delivery of possession by the Civil Court had the effect of making the possession of the judgment-debtor that of a trespasser and the accused in that case was justified in taking possession of the property by ousting the judgment-debtor, and the property being his own it could not be held that he committed mischief by causing damage to that property. In the present case the findings of both the Courts below are clear that the kutcherry house in question was the property of Mahanti Lal and he was in possession and therefore there was no justification for the petitioner to dismantle the house which amounted to a mischief u/s 425 of the Indian Penal Code.

The second point taken by the learned Vakil for the petitioner is that there is no finding as regards the common object stated in the charge. His argument is that the Court cannot infer the common object but it must find it upon the evidence adduced in the case. He says that it must be found that the mob was actuated by common object alleged in the charge, and reliance is placed on the case of Jadubar Singh v. King Emperor (1919) 20 Cr. L.J. 670: (52 I.C. 494). On reading the two judgments of the Courts below it is quite clear that the finding as regards the common object stated in the charge is based upon the evidence on the record and is not a mere surmise. There is no substance in this contention also.

The third point taken is that the accused bona fide believed the kutcherry to be the property of his master and therefore he committed no offence. Having regard to the circumstances proved by the evidence there can be no reasonable ground for the petitioner to entertain a bonafide belief that the property belonged to his master. There had been previous cases in which the possession of Mahanti Lal was declared. This contention also must therefore be disallowed.

As regards the sentence it is said that no bodily injury was caused to any person, there was no assault or beating, and all that the accused did was to dismantle the kutcherry house and plough up the land and the sentence of six months rigorous imprisonment is unduly severe. Having regard to the circumstances of the case I am of opinion that three months rigorous imprisonment would meet the ends of justice.

The conviction is accordingly upheld but the sentence is reduced to three months rigorous imprisonment.