Patna High Court
Grant And Anr. vs Emperor on 9 August, 1921
Equivalent citations: 64IND. CAS.137, AIR 1921 PATNA 440
JUDGMENT Bucknill, J.
1. This is an application made by two applicants, H Grant and E.C. Antonini, in respect of an order which was made by the District Magistrate of Bhagalpur, purporting to act Under Section 107 of the Criminal Procedure Code. As a matter of fact the applicants direct their application against proceedings which were drawn up by the District Magistrate on the 10th July of this year as well as to an order which he made there under on the 15th of the same month.
2. The circumstances and the facts in connection with this matter, are very simple; but what has taken place in connection with these proceedings has been a good deal dimmed and clouded over by a confusion of ideas and thought, brought about no doubt by the unfortunate series of occurrences which have taken place in the locality.
3. There is no doubt that there has been much trouble and difficulty in this District. It is well known that a few months ago a very serious affair took place, in which a large number of Gurkhas who were in the temporary employment of the Luttipur Concern, of which Mr. Grant is one of the proprietors and of which Mr. Antonini has been since October last the Manager, were killed. There were other disturbance?, some of which are referred to in the papers which are before me, and it would seem that very largely they have, all arisen in connection with a large area of Diara land which is subject to the action of the river. The consequence of all this has been that the neighbourhood has bren in a somewhat excited and restless condition, I do not really know, accurately, how many different proceedings of either criminal or civil character have been initiated and are, possibly, in progress. At any rate so far as is material here, it would seem that some Motuknath Jha was the Patwari of a village called Baikunthpur, which is a place subject the the fluvial movements of the river Ganges; this village is under the Luttipur Concern. This man is a tenant of a substantial character of the Luttipur Concern and holds a considerable, quantity of land under it. Of (sic) he bad obtained settlement of a plot of some 30 bighas of newly formed land in the Diara part of that village; and it is said that he had been in actual possession of this plot since October 1920. Certain persons endeavoured, so it is alleged, to oust . this Motuknath Jha from this property and were either trying or were prepared to try forcibly to obtain possession of it. Amongst these persons were, so it is stated, three men named Jagan Mander, Soukhi Mander and Nepali Mander. Their names are important, because they enter very materially into the later stages of the matter which is now before me. Motuknath Jha lodged an information in connection with this alleged attempt at his dispossession before the Sub Inspector of Police at Bihpur and, as a result of the Police investigation which followed, a report was presented to the Sub Divisional Magistrate of Bhagalpur on the 5th July of this year, recommending that that officer should issue notices Under Section 144, Criminal Procedure Code, against Nepali Mander and ten others. It is said that on the 6th July the Sub Divisional Magistrate did issue notices restraining these eleven persons under the provisions of Section 144 from going over the land in question and, further, that he passed orders for drawing up proceedings against these 11 men Under Section 107 of the Code of Criminal Procedure; and, incidentally, it is also added that he issued a warrant for their arrest. They apparently or some of them surrendered and by way of a rejoinder to the allegations which had been made against them by Motuknath Jha, claimed the land as their own holding. This occurred so far as five out of the eleven were concerned on the 7th of July, and included in these five were the three men Nepali Mander, Jagan Mander and Soukhi Mander. I need not refer to any of the other disputes which had taken place in this locality, because I have already given a sufficient general outline as to what was the position of affairs there. At any rate the Sub-Divisional Magistrate took next the step of appointing a Pleader Commissioner to go to the locality of the land, where it was alleged by Motuknath Jha that his dispossession was being attempted, and to make a map of the place and to submit his report in due course.
4. We now come to the circumstances which gave rise to the drawing up of the proceedings Under Section 107, Criminal Procedure Code, and, subsequently, to the order, dated the 15th July 1921, against which the applicants are here moving. The District Magistrate, who, it may be said in passing, had already had a good deal to do with the troublous affairs which were taking place in his "District and who was or ought to have been fairly well-acquainted with what was there occurring, states in his explanation (what, of course, I take as a correct statement of how he obtained the information upon which he purported to have acted) that he was leaving his bungalow when he met six men, who represented that they wished to speak to him. He stopped his car to hear what they had to say and they then stated that they were tenants of Dudhela; that they had taken settlement of land at Baikunthpur Diara some years ago; that they had regularly been cultivating this land saying rent and receiving rent recepits for three or four years ; that last year they had paid the rent but had got no rent receipts; that they complained to Mr. Antonini and he had told them that they would get no rent receipts until they executed kabuliyats: that they refused to execute kabuliyats for a higher rent than that which they had originally agreed to pay; that Mr. Antonini had threatened to dispossess them of the land: and, for this purpose, had taken a kabuliyat for the same land from the Patwari Motuknath Jha and set him up to claim the land to ether with the standing crops which they had sown, and that Motuknath Jha caused the Police to submit a report after an ex parte enquiry in consequence of which the Sub Divisional Magistrate had issued warrants for their arrest. One would have thought that, on such a verbal communication, the first thing to have been done would have been to have instituted some enquiry into the truth of the matter; first of all, to ascertain whether in view of what the men had said the matter was generally sub judice before any local tribunal, and if so, to refer these complaints to the officer before whom the matter was present; and, secondly, if on such investigation it was found that there was no enquiry taking place before a judicial officer, then to refer the matter to the Police authorities in order that they should enquire and report, upon the receipt of which any appropriate action could in the usual way be taken. This, however, was not done. The District Magistrate goes on to say that he returned to his house with these six men and sitting on his verandah, took down the statements of three of them; these three men, whose statements he took down, were Jagan Mander, Soukhi Mander and Nepali Minder : but he adds that as it was getting dark, be did not record the statements of the remainder. I think that it may be taken as a sound principle that where an officer, who purports to be conducting anything in the nature of a judicial or quasi judicial enquiry, has the time and the opportunity to reduce into writing complaints or statements which are made to him, those written statements only should substantially be looked at when one who has to consider them as the basis for an understanding of the conduct which takes place susequently on the part of that judicial officer. And accordingly I turn to what the Distrist Magistrate wrote down. I do not propose to quote the statements in detail and I will only say that, with one exception, there does not appear to be in those statements a single word which indicate that either Mr. Grant, Mr. Antonini or Motuknath Jha were likely to commit a breach of the peace or to disturb the public trauquillity, or to do any wrongful act which might probably occasion a breach of the peace or disturb the public tranquillity. In fact all that they do allege or refer to are matters which at the most might be the subject of civil litigation. The only sentence in which any sort of suggestion that a breach of the peace might occur is contained in the statement of Nepali Mander, who states that " the Patwari (that is Motuknath Jha) threatens to beat us."
5. Now these statements are signed by the District Magistrate as of the 8th July, and on the 10th he drew up proceedings purporting to act Under Section 107 of the Criminal Procedure Code. He says in these proceedings:
Whereas it appears from the statements of Jagan Mander, Soukhi Mander and Nepali Mander that Mr. H. Grant and his Manager Mr. Antonini and his Patwari Motuknath Jha are refusing rent receipts for rent paid for Diara lands in Mauza Baikunthpur and extorting illegal abwabs and attempting to dispossess the tenants and oppressing them in various ways in order to extort kabuliyats for enhanced rent.
5. I pause at this stage, because it is admitted that the statements of these three men, as they were recorded by the Magistrate, do not in themselves justify in any way the commencement of proceedings against Grant or Antonini Under Section 107. But the Magistrate goes on then to add to and supplement these complaints, which he had recorded in writing as made to him, by a recital of what he regarded as the exceptional conditions in the neighbourhood and upon which he thought that he was justified in taking the somewhat extraordinary step which he did, He adds:
And whereas the Diara villages being at present in a disturbed state and the relations between Mr. Grant and his tenants being strained, such conduct is likely to provoke a serious breach of the peace and it is necessary to take preventive measures promptly, I, therefore, direct that they be called on to attend my Court on 15th July 1921 and show cause why they should not be required to enter into bonds as follows :--Mr. H. Grant Rs. 10,000 Mr. E.C. Antonini Rs. 2,000 and Motuknath Jha Rs. 1,000, and also to give security by the bond of one surety each in a like amount for keeping the peace for one year," 6. It is argued for the Crown that it is open to a Magistrate to as Under Section 107 on private information, if he likes: but, it is argued, not on information which would not in itself justify him intaking steps under its provisions; but it is suggested that without any disclosure of the breach of the peace which he anticipates is likely to occur, a Magistrate can, without further ado, draw up proceedings under this section against any one for anything. I feel that I cannot altogether assent to any such broad proposition. Section 107 is, to my mind, a section essentially to be directed against individuals who personally are, to the reasonable belief of the Magistrate, likely themselves to act in a wrongful manner (that is to say, in an illegal manner), which may probably occasion a breach of the peace or disturb the public tranquillity or who are personally likely to commit a breach of the peace or a disturbance of public tranquillity. I cannot think that, merely in a general or vague fashion, by statements which do not depend upon any such direct accusation or allegation against individuals, it is open to a Magistrate to draw up or direct against particular persons proceedings Under Section 107 without having such or sufficient materials upon which he bases his action, or that any such action Under Section 107 in the absence of such features is necessary or possible. It is no doubt a matter for sympathy with the Magistrate here, who found himself in a disturbed and troubled place and period, but, notwithstanding that, I cannot see how from the information he had received and from the fact that there was local excitement, he could possibly have been justified in imagining that either Mr. Grant personally or Mr. Antonini personally was likely to commit a breach of the peace or disturb the public tranquillity or to do anything contemplated in the section. There was nothing whatever in the information, with which he had been provided and which he had recorded as having been given by the three men whose names I have mentioned, which could have justified him in putting the criminal law into motion against either Grant or Antonini. With regard to Motuknath Jha it is true that there was a statement to the effect that he had threatened violence and, therefore, it may be that that might have demanded some further investigation, but we are not concerned here with Motuknath Jha at all. The explanation which is given by the Magistrate, as to the reason why he thought that he ought to join Grant and Antonini with Motuknath Jha, is because he says that he was sure that, if the statements which had been made to him by the complainants were true, Motuknath Jha would not have taken up the attitude complained of unless he had bad the acquiescence and support of both Grant and Antonini, But, as individuals, I cannot see even so it would have justified the District Magistrate in putting the provision of Section 107 into motion against them. On the 15th of July the matter same before the District Magistrate, the notice issued by him having directed the attendance of the three persons cited upon that day. They all appeared. It then seems to have been drawn seriously to the District Magistrate's attention (although it is true that in his explanation he says that he was aware of it before) that the Sub-Divisional Magistrate had before him what was essentially (as the District Magistrate calls it practically) a counter case. That being so, it is difficult for me to understand why the District Magistrate did not send the matter, if indeed his action Under Section 107 could really at all be justified, to the Sub-Divisional Magistrate to take the two cases together. He, however, did not do anything of the kind; but saying that as he thought that the proceedings Under Section 107 which were before his colleague might probably lead to proceedings Under Section 145 of the Criminal Procedure Code, decided, notwithstanding the remonstrances of the Pleader for the three persons cited before him, to let the case stand over until after the hearing of the still unstarted and problematical proceedings which might take place Under Section 145 before the Sub-Divisional Magistrate; and he thereupon made an order that Grant, Antonini and Motuknath Jha should give bail for Rs. 500 each "to appear when called upon.
7. I must confess that I dislike the terms of this order very much. I can see no ground which really justifies the making of such an order, and I should have had great difficulty in understanding how it came to be made at all, unless I had the advantage of reading the explanation which is given of it by the District Magistrate himself. He says that: "When the case against the applicants came up for hearing on the 15th of this month, I thought it proper that the proceeding Under Section (sic) Criminal Procedure Code," (that is to say, of course, the proceedings Under Section 107 which were taking place before the Sub-Divisional Magistrate) "should be disposed of first and, therefore, proposed to adjourn this case sine die. The Pleader for Mr.Grant, however, asserted that no case Under Section 145,Criminal Procedure Code, had actually been started. I then sent for the record and I found that proceedings under that section had not as a matter of fact been drawn up. The point, however, was not of much importance, because the Sub-Divisional Magistrate had already decided to act under that section" (I do not know how the District Magistrate could foresee this) "and was only waiting for the map which he had ordered to be prepared."
8. The Magistrate then goes on to give his reasons why he thought that it was advantageous, instead either of sending the matter to the Sub-Divisional Magistrate to be dealt with the cognate counter-case or instead of proceeding with it himself at that time, to postpone the matter tine die enlarging the applicants upon bail. He says: "it is my experience that persons against whom proceedings Under Section 107 are kept pending usually refrain from committing breaches of the peace during the pendency of such proceedings. In fact the pendency of a case under that section commonly has as much effect as the actual execution of a bond for keeping the peace. The difference is that the proceedings have to be disposed of sooner or later, whereas the bond remains in force for a whole year. I have, therefore, reason to hops that the action which I have taken will be sufficient to prevent Mr. Grant from doing anything that will result in a breach of the peace, until the ecase Under Section 145 of the Criminal Procedure Code has been finished."
9. I do not really know whether to be surprised or amused at the ingeniousness of this explanation. But that the provisions of the criminal law and of that section be utilised for such a purpose is obviously one which cannot, I think, be seriously contemplated for one moment by any person, who has to deal with the higher branches of the law.
10. The result of my consideration of this matter is that, in my opinion, the whole of these proceedings have resulted from what I consider was a misconceived idea; they were framed, I think, in times of great difficulty and were in the nature really of what 1 should call panic orders. I have, as I have said before, the greatest sympathy with this officer, who had a most difficult task to carry out in confused and troublous areas and at times of no doubt considerable anxiety and stress; but still, a fair sense of perspective must be maintained, at any rate when the matter comes before those who have luckily the opportunity of dealing with it from an entirely dispassionate and unemotional point of view. The whole of these proceedings initiated by the District Magistrate and his order of the 15th July 1921 against Grant and Antonini were irregular and must be quashed.