RAMZAN KHAN Vs. JAMALUDDIN

JUDGEMENT

(1.) These are connected revisions from the judgment of the Sessions Judge of Fatehpur, dated 31 December 1943, and from the order under Section 145, Criminal P.C. of the Sub-divisional Magistrate of Patehpur, dated 3l May, 1943. The judgment of the same Magistrate was also dated 31 May 1943.

(2.) The facts are that there was a dispute about landed property which became submerged in the Granges during the rainy season of 1942 which was an exceptionally heavy one. In October the zamindars, according to the finding of the Courts, took possession and the tenants attempted to oust them with the result that there was a riot in which a number of people were injured. This riot is the subject-matter of the case decided by the Magistrate on 31 May and by the Sessions Judge on appeal on 3l December, 1943. The Magistrate sentenced a number of people to rigorous imprisonment under Secs.147, 447, 323 and 325 read with Section 149, Indian Penal Code. At the same time, he ordered the accused to give security under Section 106, Criminal P.C. This is illegal. It is not possible to order the accused to give security under Section 106 if they have been convicted of any offence read with Section 149. If the accused are convicted of rioting and sentenced under Section 147 or Section 148, it is possible to make them give security under Section 106, Criminal P.C. But if they are convicted for causing grievous hurt, arson or any other offence read with Section 149, the Magistrate can-not make them give security. At first sight this seems paradoxical because it appears that they can be ordered to give security for a less serious offence but not for a more serious offence, but the intention of the Legislature is to confine punishment within limits as far as possible. If a riot is a very serious one, a long term of imprisonment can be given to all the rioters under any section read with Section 149 and the Legislature considered that this was sufficient punishment without binding over the accused under Section 106, Criminal P.C., when they came out of prison. On the other hand, for rioting the maximum term of imprisonment under Section 147 is two years and under Section 148 three years. Consequently it was considered reasonable that some further control should be exercised over the accused on their release from prison. Magistrates should bear this carefully in mind and if they considered an order Sander Section 106, Criminal P.C., is essential in the interest of public tranquillity, they should acquit the accused of offences read with Section 149 and restrict their conviction to offences under Section 147 or Section 148, Indian Penal Code. I reduce the sentences of imprisonment under the various sections of the Indian Penal Code to the period already undergone and set aside the fine, but I maintain the order under Section 106, Criminal P.C.

(3.) The learned Magistrate found that the land was cultivated in October 1942 by the zamindars party and not by the tenants who had previously cultivated it. He, therefore, ordered under Section 145, Criminal P. C, that possession should remain with the zamindars party until the opposite party obtained an order from a competent Court in their favour. The applicants went in revision to the Sessions Judge of Patehpur who passed a long order, dated 3l December, 1943, dismissing the revision. Objections have been made to his conclusion and arguments in the application for revision filed in this Court. The proper procedure for the Sessions Judge before whom a revision is filed is to hear counsel and to write an order of reference to this Court, giving facts and arguments if he considers reference should be made. If, however, he considers no reference should be made, he should merely say that after hearing counsel, he is of opinion that no reference should be made to the High Court. It is always possible for the applicant to apply in this Court if his application has been dismissed in the. Sessions Court, but unless the Sessions Judge is prepared to refer the matter to this Court, he need not write an order giving his reasons why he is not prepared to refer it to the High Court. I see no reason to disagree with the Magistrate's finding and dismiss the application.