EMPEROR Vs. GULAM HOOSEIN RATONSEY NANJI

JUDGEMENT

(1.) The appellants have been convicted by the Presidency Magistrate under Section 143 of the Indian Penal Code of being members of an unlawful assembly, and have been sentenced each to pay a fine of Rs. 201. On behalf of the appellants the appeal has been argued by Mr. Branson and Mr. Binning but as the Government, though served with notice, has not elected to appear, we are without the advantage of argument in support of the learned Magistrate's judgment.

(2.) Regard being had to the defining Secs.141 and 142 of the Code, the question is whether the appellants are shown intentionally to have joined an assembly of five or more persons of whom the common object was by means of criminal force, or show of criminal force, to any person to enforce any right or supposed right.

(3.) The scene of the alleged offence is a piece of vacant ground behind the Khoja Shia mosque in Samuel Street. The title to this piece of land is in dispute between the trustees of the mosque who claim to have acquired it by purchase, and the accused's party, who claim that it is part of a Municipal passage open to the use of the public. The dispute, which has existed since 1884, was renewed some months ago, when the Municipal Inspector, Mr. Captain, visited the place and staked off a ten foot passage for the public. This was in accordance with a settlement which had been arrived at between the Fazandar and the Municipality in or about 1884. In Mr. Captain's view the provision of the ten foot passage secured all rights vested in the public, and a shed and a mortar mill belonging to the mosque were outside this passage upon land which the Inspector took to be the private property of the mosque. This decision was resented by the accused No, 1, whose house faces the passage, and on 24 November, he and his mother addressed to the Commissioner of Police the Solicitor's letter, Ext. 4, in which after setting out their claim to the use of the land staked off as the property of the mosque, they go on to say that they "intend to have the said stakes and mortar mill removed, and it is apprehended that on their attempting to do so, they will be assaulted by roughs hired by the trustees and their friends." On the same day a somewhat similar letter was adressed to the trustees of the mosque. On the 28 November, Police Inspector Stenson visited the place and after making inquiries warned the accused Nos. 1 and 2 and others interested to refrain from creating any disturbance and to resort to the Civil Court for the establishment of their professed claims. On the following morning the alleged offence was committed. According to the finding of the learned Magistrate the three appellants went to the place accompanied by a number of Pathans, forcibly removed all the stakes from the ground, demolished the shed, prevented the mortar mill being worked, unyoked the buffalo attached to it and removed the grinding stone and pivot of the mill, intimidating and overawing those who on behalf of the mosque protested against these acts of violence.