1. The petitioners are 20 in number. They have all been convicted of rioting under section 147, Indian Penal Code and each sentenced to one month's rigorous imprisonment. The petitioners Gulab, Bikao, Abdul, Nimchand, Ejabat and Azmat have further been convicted under section 332, Indian Penal Code, and each sentenced to three months' rigorous imprisonment to tun after the expiry of the sentence under section 147, Indian Penal Code.

2. The petitioners may be classed under two heads. Petitioners Nos. 2 to 12 are relations of one Liyakat who is not a party to this case. The remaining Petitioners belong to the party of Musammat Osiman. One Bidesi Sahu had 42 bighas of land situate in three villages Soonoodi, Badluchk and Habibpur. We are concerned in this case with the lands situate in Habibpur, amounting to about 20 bighas. Eight bighas of this land was mortgaged with Mussammat Osiman in the year 1907. The entire land of Bidesi, amounting to 42 bighas, including the aforesaid 8 bighas, were subsequently mortgaged to Liyakat and his brother Moinuddin in 1912 by way of usufructuary mortgage. Liyakat was consequently in possession of the entire 42 bighas of land. Bibi Osiman enforced her mortgage by a suit and obtained a decree from the Civil Court, in execution whereof she sold the 8 bighas mortgaged to her at a Civil Court auction-sale and purchased it herself. She obtained delivery of possession thereof on the 11th November, 1918. Liyakat obtained a money-decree against Bidesi on foot of a hand-note, in execution whereof the equity of redemption in the entire 42 bighas was purchased by one Hari Ram on the 22nd of January, 1919. Hari Ram obtained delivery of possession on the 8th of May, 1919. In the sale brought about by Liyakat in execution of his money-decree he did not mention his usufructuary mortgage as a prior lien or encumbrance. In the meantime, Liyakat was disputing with Mussammat Osiman with respect to her possession over 8 bighas purchased by her on the 11th of November, 1918. This led toa case instituted on behalf of Mussammat Osiman against Sheikh Liyakat under section 379/352. Towards the close of the trial of that case a petition was filed on behalf of Mussammat Osiman and Liyakat compromising their disputes. Therein it was prayed that the accused be acquitted, stating that the parties agreed “to abide by their respective rights in the 8 bighas of land in question according to Civil Court decree and to abide by it without resorting to the Civil Court.” The judgment of the Magistrate was delivered on the 9th of May, 1919 acquitting the accused Liyakat. The Magistrate in the concluding paragraph of his judgment refers to the aforesaid petition of compromise and the terms thereof. Hari Ram then comes upon the scene on the basis of his dakhaldahani of the 8th May, 1919, in execution of the money-decree of Liyakat. Liyakat disputed the right of Hari Ram to take khas possession of the land claiming that he was in possession thereof by virtue of his usufructuary mortgage and that Hari Ram, purchaser in execution of a money decree, had no right to take possession and that he only purchased and obtained delivery of possession of the equity of redemption of the judgment-debtor mortgagor. The contention of Liyakat was overruled by the Magistrate who, by his order of the 25th June, 1919, warned him through his mukhtar and passed the following order:—

“If he goes to the land and distrubs possession of the first party he will be responsible for any breach of the peace that may occur. Meanwhile, an order would be passed on the Police to keep an eye on this affair and to see that no breach of the peace happens.”

3. On a report of the Police based upon the information given by one of the petitioners Abul on behalf of Liyakat, the Magistrate issued an order under section 144 of the Cr PC against both Liyakat and Hari Ram, directing the Police to see that no breach of the peace takes place. The Magistrate on the 29th November, also directed a proceeding under section 145 of the Code to be drawn up. The proceeding was accordingly drawn up on the 4th of December, and usual notices were issued on both the parties, fixing 22nd December, 1919.

4. The notice under section 144 was, however, cancelled against Hari Ram by the order of the Magistrate, dated the 2nd December, 1919, on his petition stating that he was in possession of the land by virtue of the dakhaldahani issued by the Civil Court. The Magistrate directed the Police that “the first party may be allowed to go to the land and cut the crop” concluding his order in the following words:—

“If the second party comes and interferes they will at once be resisted as trespassers and sent before me”. On the 3rd December, Mussammat Osiman filed a petition stating that she had purchased 8 bighas of the disputed land and asking the aforesaid order to be reconsidered so far as her interest was concerned. The Magistrate declined to do so.

5. On receipt of the copy of the order of the Magistrate dated the 2nd December, the Sub-Inspector endorsed it in Hindi on the back of it and sent it through constable Shyam Narain Singh to constable Kaliaspati Singh who was on guard duty on the spot from the 25th November, 1919. Constable Shyam Narain Singh arrived on the spot with the order of the Magistrate at 10 a.m on the 3rd of December and communicated the order to Ziauddin, the complainant in the case, who says that he had taken settlement of the land from Hari Ram. Ziauddin went to call his landlord, Hari Ram, and sent off his nephew and son-in-law, Zahoor, to collect reapers meanwhile. Shortly after, Ziauddin returned with Hari Ram's brother and taking the reapers and other men went to the field in Habibpur and in the presence of the Policemen began reaping the paddy at about midday. At about 3 p.m, when nearly 10 or 12 bighas of the paddy had been cut and some bundles of paddy carried away to complainant Ziauddin's Khalihan near his house, a large mob was seen on the outskirt of village Kooroodih, Ziauddin informed the Policemen who by that time consisted of a head constable Bhagwat Singh, who happened to come there casually in connection with another enquiry and three constables Kailaspati Singh, Shyam Narain Singh and Ram Dayal Singh. The mob from Kooroodih moved towards the field and the head constable and two constables advanced and met them and showed them the Magistrate's order, tried to dissuade them from interfering with the reaping, but the mob did not listen and rushed to the disputed field where they were soon reinforced by another mob of 20 or 25 from village Kola. The mob attacked the complainant Ziauddin. Manoo, Abul, Ejabat Azmat and Athar struck him with lathis. Some relations of the complainant and one labourer were also wounded. Three constables also received injuries. The complainant's party then filed away and the mob carried away the reaped paddy. In all, about nine to ten people on behalf of the complainant including the Policemen were injured and two on behalf of the accused. The injuries were all of a slight nature on both sides.

6. The accused, on the other hand, said that Ziauddin with about 150 men and reapers, with the help of two Police constables were getting the paddy cut grown by Sharf Ali bhaolider of Mt. Usiman. Rangoo, Jadea and Azmat, relations of the said Sharf Ali, together with other persons who were not put in the dock, about ten in number, came to the land and protested against the cutting of the paddy grown by Sharf Ali, whereupon there was exchange of abuse between them and Ziauddin and his party and Rangoo and Jadea were assaulted by Ziauddin and his party by lathis and thereupon the said accused persons also used their lathis against their assailants and there was a marrit. The two constables who were taking active part in reaping of the paddy also joined in the fight. The marpit took place north and western portion of plot No. 60 to the south of the bandh belonging to Mt. Bibi Osiman and the place of assault was pointed out on behalf of the accused to the Sub-Inspector when he went to investigate the case.

7. The above version of the case on behalf of both the parties has been taken from the Judgment of the Magistrate.

8. Two questions principally arise for consideration in this case: (1) as to who was in possession of the land where the occurrence is said to have taken place, and (2) which of the versions of the case, either that of the prosecution or that of the defence, is correct.

9. On behalf of the defence possession is claimed with respect to 8 bighas of land which was purchased by Mt. Osiman at a Civil Court auction-sale in her mortgage decree on the 11th of November 1918. Evidence of the delivery of possession both oral and documentary, was given on behalf of the accused. The Courts below have held that the dakhaldahani of 8 bighas to Mt. Osiman is doub ful and that, even if it was true, it was in contravention of the Court's judgment which gave the Mt. only 2 bighas 13 kathas. Accordingly, the Magistrate held that Mt. Osiman failed to assert her actual possession of the 8 bighas of land before Hari Ram's dukhaldahani, and when her claim to possession failed that of her alleged bhaolidar Sharf Ali's possession automatically vanishes.

10. As to the occurrence, the Magistrate accepted the version of the prosecution and rejected that of the defence.

11. The learned Sessions Judge on appeal agreed with the finding of the Magistrate and upheld the conviction.

12. Before me on behalf of the petitioners apart from impugning the findings of the Courts below on the aforesaid two main issues in the case it has been challenged that the trial of the petitioners was vitiated by grave illegalities and irregularities. It is said that the Magistrate did not comply with the provisions of section 342 of the Cr PC in omitting to examine the accused under latter part of the section alter the close of the case for the prosecution and before the accused were called upon to enter into their defence. It appears that the charge against the accused was framed upon an examination of some of the prosecution witnesses on the 28th June. On the 6th July the accused were examined, presumably under the first part of section 342, inasmuch as the case of the prosecution had not at that time closed. The accused then said that they would file a written statement. The prosecution witnesses were thereafter cross-examined and on the 30th July one witness on behalf of the prosecution was examined-in-chief and cross-examined. The accused were then called upon to enter into their defence and examined their witnesses on the 14th August. Their written statement was filed on the 6th October. It is needless to discuss the law on the subject over again when it was fully dealt with by me in the case Raghu Bhumij…Accused v. Emperor…Opposite Party.(1). The view taken by me in that case has since been affirmed by many Judges of this Court in several cases and by the other High Courts, vide the case of Fernandez v. Emperor(2) and the unreported case of Fatu Santal v. Emperor(3) Death Reference No. 1 of 1921 (learned Chief Justice and Adami, J.). The filing of written statement on behalf of the accused cannot take the place of an examination of the accused under section 342, nor can it relieve the Criminal Court of its duty to comply with the imperative requirement of the law under that section. The reason for the law we are not at all concerned with, but it has been amply shown by me in the case of Raghu Bhumij…Accused v. Emperor…Opposite Party. that the provision under section 342 is a salutary one in the interest of the accused and of justice. The Magistrate in the present case has failed to comply with the requirements of the law. It is surprising that in spite of repeated pronouncement, of the law on the subject, there should be such a persistency in some of the Magistrates not to follow the ruling of the Court strictly and thereby to avoid objection on behalf of the accused at a subsequent stage in appeal or in revision and thereby to save the time of the higher Courts and possibly save their own consequent upon a remand due to their non-compliance with the law in question. I would that the Magistrate will not in future commit such an omission. The fact that this objection was not taken in the Court below or in the grounds set forth in the petition of revision in this Court does not deprive the accused of their right to press it, inasmuch as it is a point of law.

13. Another grave irregularity has been pointed out by the learned Counsel on behalf of the accused in the conduct of the trial by the Magistrate. On the 19th Sep. 1920, during the pendency of the trial, the Magistrate held local enquiry. He, how ever, did not place upon the record a note of his observation of the place. The Magistrate in his explanation to this Court says as follows:—

“I advisedly did not commit to paper what I observed, as my doing so would have been practically tantamount to an expression of a finding adverse to the innocence of accused thus prejudging the case whose hearing had not been concluded then.”

14. He further says; “I had the local features fresh in my mind when I wrote the judgment.” The Magistrate has made use of his local inspection in the judgment at places more than one. While judging of the actual service of dakhaldahani on the spot relied upon on behalf of Mussammat Osiman, he devoted more than one typed page upon inferences drawn from his local inspection adverse to the case of the defence. He has, therefore, not used the local inspection simply for the purpose of understanding the evidence adduced before him, for which purpose alone the result of local observation has been held to be pertinent and allowable, but he has also used it for the purpose of deciding the main issues in the case, the dakhaldahani, and the possession of the 8 bighas of land, relied upon by the defence. In this he has seriously prejudiced the accused for he has used his personal knowledge into the case derived from his local inspection without giving the slightest opportunity to the accused for cross-examination. In the present case, as observed by an eminent Judge, he has used his eyes as a witness in the case and as a sole Judge of the issue before him to the prejudice of the accused whereas the Court was entitled to Judge the case only upon the evidence placed before it. The Magistrate admits, in the passage quoted above from his explanation, that he had already formed certain opinion on the 19th September long before he decided the case against the accused upon the local inspection; yet he did not consider it necessary to give the accused an inkling of it so as to enable them to offer any reasonable explanation of the points against them and to clear up, if possible, any allusion or misapprehension that might have existed in the mind of the Judge on account of his local inspection. Nothing more objectionable could there be than the procedure followed by the Magistrate in the case and the misuse of the right of local inspection vested in the Court.

15. The aforesaid two objections were sufficient to set aside the conviction and to order a re-trial from the stage where the illegalities and irregularities occurred in the proceedings of the Magistrate, but on behalf of the accused it has been urged that a remand in this case is unnecessary, in view of the conviction being illegal and improper on other grounds and also in view of the fact that a re-trial in such a case would mean a great harassment and expense to the accused.

16. The first point for determination is, whether the prosecution were in possession of the land in dispute with respect to the 8 bighas over which the Civil Court delivered possession on the 11th November, 1918. There cannot be the slightest doubt that the Mussammat was in possession. She was not a party to the dispute between Hari Ram and Liyakat and whether the claim of Hari Ram be correct or that of Liyakat be correct, her right stands upon a higher and different footing. Her mortgage was of a much prior date than the usufructuary mortgage of Liyakat and from a criminal case which ended in the judgment of the Magistrate, dated the 9th May, 1918, already adverted to, it is clear that Liyakat who alone was disputing at that stage as regards the right of the Mussammat, relinquished his claim, if any, and agreed to be bound by the Civil Court decree and consequently the dakhaldahani. The fact that there is a discrepancy in the area entered in the dakhaldahani as 8 biahas and that entered in the judgment as 2 bighas odd does affect the validity or effect of the dakhaldahani with respect to the 8 bighas. No Court has any power to question it far less a Criminal Court. As to the validity of the dakhaldahani with respect to the land covered by it, the remedy of any person affected by it lies in the Civil Court.

17. Now, as to whether this dakhaldahani was or was not proved, the learned Sessions Judge has not given any reason in addition to what is given by the Magistrate and the view taken by the Magistrate with regard to this point is very much vitiated. A careful analysis of the criticisms advanced by the Magistrate against the acceptance of the evidence offered by Mussammat Osiman as to her having obtained delivery of possession through a Civil Court peon, will clearly show that there is no substance in any one of them. The evidence both oral and documentary is conclusive as to her having been put in possession by the Civil Court. It is also in agreement with the subsequent events in the history of the litigation between the parties. I have referred to the compromise arrived at between the parties in the criminal case in May 1919. The occurrence in that case must naturally have taken place before the dakhaldahani in favour of Hari Ram effected on the 8th May, 1919. The proceedings under section 144 of the Cr PC, which were started upon the report of the Police of the 25th November, 1919, do not at all affect her inasmuch as she was not a party to the proceedings. The proceeding under section 145 of the Code, which also was started on the same report, was decided on the 10th March by the Magistrate that she was a necessary party, because she was a purchaser in execution of a mortgage decree. An application against that order was rejected by a Division Bench of this Court on the 16th March, Exhibit 19. The proceeding under section 145 thereafter with respect to 8 bighas proceeded between the Mussammat as the first party and Hari Ram and Ziauddin as the second party. It terminated with an order of the Magistrate dated the 25th May, 1920, attaching the property in dispute but that order was set aside by this Court with the recommendation that it was open to the Magistrate to institute another proceeding under section 145 in case of an apprehension of a breach of the peace.

18. Thus, the order of the 25th May in which the Magistrate says that he was unable to come to a definite conclusion as to which of the contending parties was in possession, does not affect the actual possession of Mt. Osiman based upon the Civil Court dakhaldahani of the 11th May, 1918. The prosecution, at least, has failed to prove their possession over the entire land in dispute. The defence claimed that the actual occurrence took place on the plot of 8 bighas. Neither the Magistrate nor the learned Sessions Judge has come to any definite finding upon the point, and I overrule this plea and definitely hold that the occurrence did not take place on the 8 bighas plot but took place upon some other portion of the tentire 20 bighas. The defence in the writen statement gave the number of the plot so that it was very easy to forthwith come to a definite finding. The learned Government Advocate has conceded that there is nothing to show on any side as to whether the occurrence took place either on the 8 bighas plot or on some other portion of the land. If so the accused are entitled to a benefit of doubt and it must, therefore, be presumed that the occurrence took place on the portion of land claimed by Mt. Osiman as in her possession on the basis of her dakhaldahani. The prosecution have at least failed to prove their possession over this land or to have grown the crop in question. The question, therefore, is, whether the Magistrate was entitled to make the order of the 2nd December in the proceeding under section 144 of the Cr PC upon the petition of Hari Ram to which the Mt. was not a party, directing the Police to see that Hari Ram's party may be allowed to go to the landand cut the crop. Section 144 has been misused in the present case. The order of the Magistrate does not at all come within the purview of that section. The learned Government Advocate has failed to show that the order of the Magistrate of the 2nd December is justified by any provision in the Code or any other law. Even if it be a valid order, it was of no effect so far as Mt. Osiman was concerned. The order is ultra vires. It is an illegal order and is also highly prejudicial. The Magistrate without any enquiry as to who actually grew the crop, had absolutely no right to direct a particular person to take possession of the land and to arm that person with the Police force in order to cut and remove the crops from the land which, according to the previous history of the litigation, was full of complication. If the order of the Magistrate was ultra vires it is clear that the Police constables were deputed and the Police Officers did not derive any lawful authority from this order to allow the first party to cut and remove the crop from the land. Mt. Osiman and, therefore, the accused, were justified in preventing the cutting, and removal of the crop and, according to the version of the prosecution set forth at the outset of the judgment, it is clear that some bundles of paddy were also removed. There was, therefore, a clear right of private defence of property available to the accused action on behalf of Mt. Osiman. Section 99, Indian Penal Code has obviously no application to the present case, inasmuch as there was no want of jurisdiction in the Magistrate to pass the order on the strength of which the Police Officers were having the crops cut on behalf of the complainant. In the case of Bisu Halder v. Probhat Chunder Chuckerbutty(4) it was pointed out that the words in section 99 “not strictly justifiable bylaw as stated in Mr. Mayne's Commentary on Criminal Law, section 225, seem to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction, to cases where the official has done wrongly what he might have done rightly, not to cases where the act could not possibly have been done rightly.”

19. The aforesaid view was applied with respect to a charge under section 147 where the common object of the unlawful assembly was said to be to resist the execution of a legal process, namely, to resist the Police Sub-Inspector in executing the search warrant of arrest. For similar view a reference may be made to the cases of Adhar Midday v. Empress(5) and Mangobind Muchi v. Empress(6). The case of Bhola Mahto v. Emperor(7) and Mangobind Machi v. Empress are cases where the orders were well within the powers and jurisdiction but they were only defective in form. These cases have no application to the present case. The right of private defence in the present case was, therefore, not deprived by virtue of Section 99, Indian Penal Code, simply because the Police constables were there with an illegal and unjustifiable order of the Magistrate and were taking active part in the removal of the crop from the land. In any case, the lands were attached.

20. I, therefore, hold that the accused committed no offence in the present case and that they were well within their rights in preventing the crops from being removed and, but for the injuries caused to the party of the complainant, it was not possible for them to preserve their property inasmuch as the removal of the crop had already commenced and would have continued unless and until these persons were prevented from carrying out their act of removal. As a matter of fact, the accused did not cause any serious hurt, all the injuries being of a simple nature and, apparently, they had self-control and had restrained, themselves within legitimate bounds and used only so much force as was necessary to preserve their property. The right of private defence was, therefore, not exceeded.

21. The result is, that the conviction of, and the sentences passed upon, all the accused are sat aside. This case has come to this Court in various ways and the history of the litigation has already been set forth though not fully. It is a fit case where the Magistrate ought to have once for all decided the case under section 145 and left the others to seek their remedy if any, in a Civil Court. This has not been done although the dispute has been going on for a considerable length of time.

22. Conviction set aside.