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of the Indian Penal Coile and proceetlings taken under that section for such refusal are bad in
law and should be quashed.

The arrest of persons, appointed as Special Constables, by the Police, their detention in
Police custody till they execute a recognizance to appear before the Magistrate or the Police
Inspector, and the taking of such recognizances from them are absolutely illegal.

The Magistrate and Collector of the District, being for most purposes the principal repre-
sentative and administrator of the law in the eyes of the people of the District, a position of
great power and great responsibility, it is of supreme importance that his acts should be ex-
amples of e^ual justice, rigid impartiality and obedience to the law.

Questions relating to title to immoveable proi>erty are for judicial tribunals to decide,
and it is a great wrong if any officer by the use of his executive authority seeks to supersede
those tribunals, usurp their functions, and it is certainly his duty, in any steps he deems it
necessary to take, to keep within the limits of the law.

Disputes as to title to immoveable property can be dealt with only by the Civil Court,

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170 The Criminal Law Joubnal Hjrports. [Vol. IH


Where, as in the present case, a Magistrate has repeatedly endeavoured to dispose bj an«
authorised executive action of matters which the law reserves for judicial determination, and
he has been betrayed into many illegal and irregular acts, and some of a highly oppressive
character, he disqualifies himself for the discharge of any judicial function great and small,
in any matter connected therewith, and the case should be transferred from his file or from
the file of any Magistrate of his selection.

Application for revision and tran.sfer.

The material facts appear fully from the judgment,

Mr. J. T. Woodrofe^ Babus Karuna Sinha Mookerjee and Jogendra
Chandra Ghose for the Petitioners.

The Deputy Legal Remembrancer (Mr. Kilht/) for the Crovm.
The judgment of the Court was delivered by

Wilson, J. — ^These four cases were argued before us on the 20th of
last month. In the first, a rule had been granted to show cause why cer-
tain proceedings by which the petitioners were summoned to answer a
charge under sec. 173, Indian Penal (^ode, should not be quashed. In the
second, a rule had been granted to show cause why the case against the
petitioners should not be transferred from the Court of the Joint Magis*
trate of C-uttack of some other district.

The application in the third and fourth cases was the same as in the
second, but no rule to show cause had been granted ; the Deputy Legal
Remembrancer, however, on grounds of public convenience, elected to
show cause in the first instance without the issue of any previous Rale.
We stated at the close of the argument that in our opinion, the proceed-
ings in the first case must be quashed, and as to the second, third and
fourth cases that they must be transferred to the district of Pooree. We
have now to state our reasons for those orders ; and in doing so, that we
may make what we have to say and the grounds on which we act quite
cleiir, it will be necessary to notice some earlier transactions closely con-
nected with those with which we have directly to deal and which were
properly brought before us on this occasion.

It appears that the late Maharaja of Burdwan died childless in the
year 1885 ; the Court of Wards have undertaken the management of the
Raj estates and Mr. Coxhead, the Collector of Burdwan, has been appoint-
ed Managing Collector, and Mr. T. D. B. Miller and Babu Bun Behari
Kapur, managers. At the time of the late Maharaja's death, an estate,
named Kujong in the district of C-uttack, stood registered under Act VII
of 1876, B. C, in the name of the Dowager Maharanee, the widow of an
earlier Maharaja. Mr. Currie was then, and is now, the Magistrate and
; Collector of Cuttack,

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Vol. in] The Criminal Law Journal Reports, 171


A controversy thereupon arose, between the officers of the Court of
Wards on the one side and the Dowager Maharanee on the other, as to
the title to the property, and a conflict as to its possession. On the 22nd
July 1885, Mr. Coxhead wrote to Mr. Currie as the Collector of Cuttack
about the Kujong property. He informed the latter that the Maharanee,-
" who claims the property as her own is atteihpting to interfere with our
local officers and had issued instructions to her employees here, which may
result in disturbance." He states who the local officers are, and says, " I
beg you will give them support if they would apply to you for it;" and he
states further that " the property is in our possession." Shortly afterwards
the Maharanee presented a petition to Mr. Currie as District Magistrate,
alleging that she owned and possessed the property of which those who
represented the Court of Wards were trying to obtain possession, that her
people had been threatened, and that she apprehended a breach of the peace,
and she asked for a police guard for her servants. Mr. Currie refused this
and said he could only recognise the man in possession who was the Court
of Wards' man, and warned the Maharanee that if her manager went to the
place, and a breach of the peace ensued he would be held responsible. Mr.
Currie in his affidavit of the 7th April last tells us that he "fully appre-
hended a breach of the peace from what was stated " in this petition, and
from the attempt of the Maharanee's men to realize rents and to put cer-
tain persons in possession.

The state of things, with which the Magistrate had to deal, was thus
one which is unfortunately but too common in this country. There was a
dispute as to title, with which of course only the Civil Court could deal.
The Magistrate had no power to decide it himself, and no power to compel
either party to take the necessary steps to bring the matter before the
Civil Court. It was stated during the argument before us that down to
that time neither party had a suit for the purpose. For the conflict about
possession attended by risk of a breach of the peace, the law has made
express provision in sec. 145 of the Criminal procedure Code. Upon
proper information of the existence of the dispute and of the likelihood of
a breach of the peace, and upon proper proceedings being taken under
that section, a decision might have been obtained from a Magistrate as to
the fact of possession ; and the party found to be in possession would
then have been maintained in possession in accordance with law, until the
question of the title should be decided by a competent tribunal. If this
course, so plainly pointed out by the law, had been taken, it seems likely
that the continued conflict and the unfortunate scries of irregularities which
followed would have been avoided. But it was not taken.

The first step that Mr. Currie did take was to alter the register, by
striking out the name of the Maharanee, as the registered owner of the

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172 Thk Criminal Law Journal Reports, [Vol. in


estate, and substituting those of the managers of the Court of Wards.
The Collector did this without notice to the Maharanee, acting under what
he understood to be an order of the Board of Revenue, It is not neces-
sary to consider whether the letter of the Board of Revenue did, or did not,
amount to an order. It is unnecessary to decide whether Mr. Currie could
or could not be justified in obeying any order of the Board of Revenue on
such a point. It is unnecessary to decide whether the act of the Collector
in altering the register in favour of the Court of Wards as against a person
claiming adversely to the estate represented by the Court of Wards, was
not ;wholly illegal ; it is enough for the present purpose to say that the
order was an unfortunate one. It prejudged the question of title, so far
as any act of the Collector could do so. It very seriously afEected the
question of possession, for by sees. 78 and 79 of the (Land) Registration
Act, the efEect of the alteration was to absolve the tenants of the estate
from all liability to pay rents to the Maharanee, and to authorise them in
paying to the Court of Wards' manager, thus exactly reversing on this
point the previous position of the parties. And it placed the District
officer in the position of a partisan of one side, in the controversy between
the Court of Wards and the Maharanee, and in a position of antagonism
to the other.

As to the question of possession, Mr. Currie says in his affidavit,
that he believes the Maharanee is not in possession. Be it so ; but the
law contemplates not the opinions of Magistrates on such questions, but
their judicial decisions.

Upon the strength of a petition, dated the 3rd October 1885, Mr.
Currie summoned certain servants of the Maharanee to answer a charge
of unlawful assembly. In November, he made an order binding over
certain of those servants to keep the peace under sec. 107 of the C/riminal
Procedure Code. The persons accused of unlawful assembly, and the
persons bound over under sec. 107, severally petitioned this Court, and
the matters were heard before Tottenhan and Agnew, JJ. In the course
of their judgment, the learned Judges pointed out that a portion of an
order of Mr. Currie, by which he ordered the petitioners in the unlawful
assembly case to appear in Court, and signify their presence every Monday
and Thursday until the result of the petition should be known, and a final
date fixed for hearing the case, was " utterly unwarrantable." They also
pointed out that a notice which he had issued to the police to prohibit
jimmadars from paying rent to the Maharanee's servants and directing
them to pay rents to the manager of the Court of Wards, was an order
which he had no power whatever to make. They set aside the order
under sec. 107, on the ground that there were not sufficient materials

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Vol. Ill] The Criminal Law Journal Repor'Ts. 173


to justify the order. And they transferred the charge of unlawful
assembly to be dealt with in the adjoining district of Pooree. They
stated their reasons thus : —

" With regard to the charge under sec. 143, we think that the
petitioners have made out a good case for the transfer. It has been
argued that though Mr. Currie has made several orders which are indefen-
sible in law, yet that he has not shown any mala fides and that there is
no reason to suppose that the petitioners will not have a fair trial before
him. We do not wish to attribute mala fides to Mr. Currie. But he
has from the commencement of the dispute between the Maharanee and
the Court of Wards acted in his executive capacity under the direction
of, and in obedience to orders received from the Court of Wards, and
while acting in that capacity, he has throughout taken a view of the dispute
hostile to the Maharanee and her servants. We therefore make the
Rule absolute, and direct that the case be transferred to the file of the
Magistrate of Pooree."

This judgment was delivered on the 14th December. On the 21st
December, a petition was presented to the Magistrate by the head
raahurir of the Court of Wards, setting out that an attempt was being
made to establish the Dowager's possession by force, that assaults had
been committed upon the Court of Wards' men, that a false case had
been instituted, and subpoenas issued to certain of the Court of Wards'
people, with the view of getting them out of the way, and that some
police-officers had been gained over. The petition concluded with a
prayer that the Magistrate would order the Police Inspector to " maintain
the possession of the manager of the Court of Wards," and to " prevent
any person from interfering with the collection or rent" by the Court
of Wards' manager. The order made upon that petition was, " Send
order to Mr. Tims by to-day's post that he is to see that the present
manager of the Court of Wards is maintained in possession of the various
Cutcheries in the zemindari of Kujong, and that any person found pre-
venting or obstructing his peons in collections be immediately restrained."
This was an illegal order. It was an order made by the Magistrate in
a ease of disputed possession, to maintain one side in possession, and to
restrain other side, without any judicial determination of the fact of

On the same 21st December, another petition Was presented to the
Magistrate on behalf of the Court of Wards, It stated that the men of
the Maharanee were scattering themselves in all parts of the estate, ** that
they were oppressing the ryots," trying to " create disturbance and breach
of the peace, and with the assistance of Gopinath Paryah and his brother,

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174 The Criminal Law Journal Reports'. {Vol. Ill


doing^ their best to collect rents from the ryots by force." Gopinath is
one of the present petitioners, and is plainly an active man of the
Maharanee's party. The petition went on to show reasons for holding
that the Maharanee was not in possession. It prayed the Magistrate to
" depute a guard of sixteen constables to Kujong, and direct Mr. Tims,
the Inspector of Police, to arrest any person belonging to the party of
the Dowager Maharanee or under her service, found trespassing upon
the said estate with the object of creating disturbance or collecting rent,
and to prevent any person from interfering with the collection of rent by
the Court of Wards' manager."

Mr. Currie's order upon the petition was this : — " Eight constables
are already at Tikri, and eight more have been ordered down. Send this
to Probhat Baboo (this gentleman was a Subordinate Magistrate) to see
what Gopinath Paryah is doing. It might be well, considering the
general aspect of things, to appoint Gopinath and some others of influence
as special constables for a month. Send up some names."

This led to a report from Mr. Tims^ the Police Inspector, who stated
that disturbance had already been created by Gopinath and his men with
the other side, and that a case was before the Deputy Magistrate* ; that
there are " several other men of Gopinath scattered a,bout in the different
villages of Kujong with a view to realize rents from the ryois, and also
obstruct the men of the said manager, and if they attempt to do -so tliere
will undoubtedly be some serious disturbance committed ; with a view
to prevent the disturbance of the peace, it will be advisable that the
following men be enlisted as special Police under sec. 17 of Act V of
1861, as the ordinary Police posted is not sufficient to preserve the peace."
He then gave a list of ten names beginning with Gopinath, Of the^
Gopinath and two others are servants of the Maharanee, two are what
are called jimindars claiming to hold under her. It would seem from
a document which Nve shall have to refer to later, of the 2Gth January
.1886, that a sixth was from the same place. Of the other four, it does
not appear what they were. The first-mentioned five are the petitioners
in the first of the petitions before us.

The Deputy Magistrate, Probhat t^hunder Chatterjee, already
jnentioned, supported this recommendation, saying — "From what I
have seen on the spot during the last six days, I have every reason to
apprehend a breach of the peace at Kujong.. The ordinary Police posted
here is not sufficient to preserve peace." Upon this Mr. Currie on the
16th January made an order appointing the ten men named special con-
stables. At this point, Mr. Currie's connection with these transactions

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Vol. lit] • fflE Criminal Law Joirnal Reports. 175


The power to enlist special constables is conferred by sec. 17 of Act
V of 1861 which is as follows : — " When it shall appear that any unlawful
assembly or riot or disturbance of the peace has taken place, or may be
reasonably apprehended, and that the police force ordinarily employed
for preserving the peace is not sufficient for its preservation and for the
protection of the inhabitants and the security of property in the place
where such unlawful assembly, or riot or disturbance of the peace has
occurred, or is apprehended, it shall be lawful for any police officer not
below the rank of Inspector to apply to the nearest Magistrate to appoint
so many of the residents of the neighbourhood as such police-officer may
require, to act as special police-officers for such time and within such
limits as he shall deem necessary ; and the Magistrate to whom such
application is made shall, unless he see cause to the contrary, comply
with the application.

In the first of the petitions now before us the fir.st two petitioners
expressly say (para. 20) that they "have been informed and verily
believe that Mr. Currie, in order to deter them from collecting rent on
behalf of the said Maharanee and your other petitioners from paying to
her rents which are due to her," passed the order suggesting the appoint-
ment of special constables. Mr. Currie's explanation is this : — " I finding
the ordinary police force stationed at Kujong to be insufficient for the
purpose of preserving the peace, called for a report whether it would jiot
be well to appoint special constables." He then said that on the receipt
of the report, he appointed the special constables. And he adds, " I
verily believe that as the men of the said Dowager Maharanee are
attempting to establish her possession in the said estate of Kujong by
force, that it would be impossible to preserve the peace in and about that
estate without a specfal police force being employed there."

We assume all the Magistrate here says about the necessity for
additional Police to be perfectly correct. But he does not deny the
petitioners' allegation as to his motive in suggesting that the particular
man Oopinath and others of influence should be made constables, and
when we read the order of Mr. Currie in which the suggestion was
made with the petition upon which it was founded, there is really no
doubt abont the matter. It is clear that the only legitimate object for
appointing special constables is to strengthen the ordinary police force
by the addition of suitable persons to their number, when the ordinary
force find themselves too few to meet an emergency, and that in a case
of dispute as to proprietary rights, it is an abuse of the law and an act
of oppression to appoint the active men on one side as special constables,
in order to prevent their asserting their alleged rights, and so to give
HQ advantage to the opposite party«

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176 The Criminal Law Journal Reports. [Vol. Ill


The order of the District Magistrate appointing the ten persons as
special constables would seem to have been transmitted to the local
police-officers, and recorded at the Police office. Then follow a series of
transactions which are extremely irregular, and not altogether easy to
follow. It is stated in the first of these petitions, and not denied that
on the 25th January, one of the petitioners in the first petition, Ram
Krishna, was arrested by the Police, and detained in custody till he
executed a recognizance to appear before the Magistrate tlie next day.
On that day we find a report from the Court Sub-Inspector to the Joint
Magistrate, in which he says that " out of the six men away from Tikri
who were appointed special constables, one man Gopinath was released
on bail to appear within four days before Mr, Tims. Now, one Hamkrishna
Balabantra has been produced. I solicit necessary orders regarding his
appearance before Mr. Tims ;" on which Mr. Inglis, the Joint Magistrate,
made an order, " To find Rs. 100 bail to appear before Mr. Tims within
four days."

The arrest of Ramkrishna by the Police was absolutely illegal. The
taking of recognizances from him and from Gopinath to compel their
appearances before Mr. Tims was absolutely illegal. And in Ramkrishna'a
case at any rate, Mr. Inglis is responsible, for he gave the order.

The next proceeding appears from the diary of Mr. Tims, the Police
Inspector, under date the 4th February. He writes : — "This day, at
11 A. M., Ramkrishna Balabantra, Sadanund Patnaik, Ram Sardole
Singh and Jogendra Mohunty came to Tikri together and appeared before
me. I have explained to each of them the order contained in D. O. No.
3, of January 1886, and when I ofEered each of them their appointment
certificates, belts and batons, the whole of them totally refused to receive,
and went away by saying that they will never do the duty of constables."
He adds that he has reported this to the District Superintendent for his
and the Magistrate's order. The District Superintendent on the 6th:
February wrote an instruction to the Court Sub-Inspectof , " Show
Magistrate and ask for summons." Upon which Mr. Inglis, the Joint
Magistrate, made an order, " Issue summons, sec. 17.3, to persons men-
tioned." The precise details of Gopinath's alleged offence do not app^r,
but this much is clear, that his, like the others', consisted in refusing
to serve as a special constable. Thereupon the five petitioners in the* first
of the petitions before us were summoned to answer charges under sec.
173, Indian Penal Code ; and at the time of the application to this Court
the case stood upon the file of the Joint Magistrate.

Sec. 173 of the Indian Penal Code makes it a criminal offence pun-
ishable under the section, " for any one intentionally to prevent the serving
on himself or another of any summons, . notice or order prdceedlng tron^

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Yol, III] The Cbiminal Law Journal Reports, 177


a competent public servant, or to prevent the affixing o£ such a document,
or to remove it when affixed, or to prevent the lawful making of a public

That is the section under which the men have been summoned ; the
fact is that they refused to serve as special constables when ordered to
do so. The facts and the charge have nothing to do with one another,
no single point of connection, and this was at once admitted on behalf
of the Crown upon the argument. We accordingly quashed the proceed-
ings which are the subject of the first of the petitions before us.

The second of the petitions before us is by Gopinath Paryah, one o!
the. parties to the previous petition, It relates to a charge of extortion,
under sec. 384, Indian Penal Code, brought against him in connection
with alleged attempts to collect rents on behalf of the Maharanee. The
third petition is by Gopinath and two others, and relates to a charge of
riot brought against them in connection with the same alleged attempts.
The fourth petition is by Gopinath and four others, and relates to a charge
of assault arising out of the same controversy. Those three charges were
all pending before the Joint Magistrate, Mr. Inglis, when application was
made to this Court.

We made an order in each of these three cases, at the close of the
argument transferring the case to the district of Pooree for disposal.
Having regard to the course of the proceedings before Mr. Inglis, the
Joint Magistrate, in the case arising out of the appointment of special
constables, which proceedings we have already examined, we think it un-
desirable that that officer should deal with any of these cases. Mr, Currie's
proceedings in connection we have already described. We have only
to add this :

Mr. Currie was not only the Collector of Cuttack, he was also Chief
Magistrate of the district, and as such, for most purposes the principal
representative and administrator of the law in the eyes of the people
of the district, a position of great power and great responsibility in which
it was of supreme importance that his acts should be examples of equal
justice and obedience to the law. As Magistrate and as the officer res-
ponsible for the peace of the district it might well be Mr. Currie's duty
to take action, either himself or through some Magistrate subordinate to
him, with respect to the disputed possession of the Kujong estate. If he
did so, however, he was bound, in everything he did as Magistrate, to act
with the same rigid impartiality as if the dispute had been between any
two persons in the district. He was bound to remember that questions
of property are for judicial tribunals to decide, and that it is a great wrong
if any officer by the use of his executive authority seeks to supersede

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 45 of 91)