BACHU SINGH Vs. EMPEROR

JUDGEMENT

(1.) A pyne known as Neera Nala flows through Taraunchi village to Dadhpa on the north in Gaya District. The water of the pyne is used for irrigation purposes in both villages. The maliks of Dadhpa contribute one-half of the costs of the upkeep through Taraunchi and the whole of it in Dadhpa. In the fard-abpashi it is recprded that the people of Taraunchi are entitled to make a grandi at plot No. 131 of Taraunchi for replenishing a natural reservoir which is plot No. 157 of the village. During la September, and early October, the people of Taraunchi had erected this grandi at plot No. 131 thereby obstructing the flow of water to Dadhpa village. There was apprehension of a breach of the peace, which led the Sub-Divisional Magistrate to issue an order under Section 144, Criminal P.C., prohibiting the people of Dadhpa from cutting the grandi in Taraunchi. There was an appeal to the District Magistrate who on 8 October rescinded the order of the Sub-Divisional Magistrate remarking that after recent rains there would be no danger of a breach of the peace. Seven days after this a number of men of Dadhpa set out armed with lathis and other weapons to cut the grandi in Taraunchi. They were opposed by some men of Taraunchi whom they overpowered and on whom they inflicted several injuries. The petitioners now before the Court were placed on their trial charged under Section 147, I.P.C. with rioting with the common object of cutting the grandi in Taraunchi, and under Section 325 or Section 323 with causing hurt to one or other of the four injured men of Taraunchi. The petitioners were convicted, and by the final order of the Sessions Judge they were sentenced each to three months rigorous imprisonment under Section 147, while for the convictions under Section 323, no separate sentence was imposed.

(2.) Mrs. Dharamshila Lall on behalf of the petitioners argues that the common object set forth in the charge ought not to be regarded as unlawful, because the men of Dadhpa should be regarded as having had a right to cut the grandi. Two witnesses who were examined on behalf of the defendants stated that it had been customary after the Taraunchi grandi had been standing for five or seven days for the Dadhpa people to cut it in order to bring water to their own village. Mrs. Lall points out that neither the trying Magistrate nor the Sessions Judge has made any reference to this part of the evidence of these two witnesses; and it is suggested that if this part of the evidence had been considered, the decision might have been different. The learned trying Magistrate discussed the evidence of these witnesses touching the actual occurrence and I do not know that it can be said that he must have forgotten what these witnesses said merely because he makes no specific mention in his judgment of this part of their evidence. Both the trying Magistrate and the Sessions Judge have come to the conclusion that the Dadhpa people had no right to enter into Taraunchi and to cut the Taraunchi grandi and that by entering in Taraunchi to do this, they formed themselves into an unlawful assembly. The Record of Eights mentions that no pardbandi has been fixed for the exercise of the rights of the villagers of these two villages, and it would be difficult to hold that the learned Sessions Judge and the learned Magistrate were wrong in finding that they had no right to destroy the Taraunchi grandi by force.

(3.) The District Magistrate, when rescinding the order under Section 144 had advised the men of Dadhpa to apply under Section 38, Private Irrigation Works Act, but Mrs. Lall points out that the withdrawal of the order prohibiting them from cutting the grandi was treated by the men of Dadhpa as granting permission to do this. Indeed, it would appear likely that this would be the effect of the rescinding of the order under Section 144 but the order of the District Magistrate could not properly be treated as a license to commit criminal trespass; still less as a license to riot.