Manohar Lall, J.:— This is an application in revision on behalf of 13 persons who have been convicted by the learned Sub. Divisional Officer of Muzaffarpur for offences under Ss. 148 and 147, I.P.C Two of the petitioners, namely Satnarayan Das and Babaji Rant, were also convicted under Sec. 326, I.P.C, and sentenced to various terms of imprisonment, the sentences to run concurrently. The convictions and sentences have been upheld in appeal by the learned Additional Sessions Judge of Muzaffarpur. The facts which are necessary to be stated in order to determine the questions agitated before this Court and which have now been concurrently found by the two Courts of fact are these: On an and 6th May 1937, complainant Harnandan purchased the land in dispute by means of two documents from some persons who were neither the heirs of the admitted owner, Manrup, deceased, nor were in possession of this land. On 14th May 1937, the same property was purchased by means of a registered kobala by Sudarsan Das, chela of the Mahant Ram lakhan Das of Chourauth, from some persons who were the rightful heirs of Manrup and who were also in possession thereof up to the date of the transfer. The land is in village Khoria in which the complainant's party live and has an area of 2 bighas and 4 kathas at a distance of about two miles from the village Chourauth. The accused who are adherents of Sudarsan Das live either in village Chourauth or in the neighbourhood. Ever since the date of the rival purchases there was an apprehension of a breach of peace between the two kobaladars; rumours of this apprehension had reached the police authorities who on being informed deputed a dafadar to remain at the spot in order to see that no serious breach of peace occurred.

2. On the morning of 3rd July 1937, choukidar Ramphal Raut was sent by the dafadar to go and inform the Sub-Inspector about the immediate apprehension of the breach of peace between the men of Sudarsan Das on the one side and Harnandan and others on the other; he reached the Police Station at 11 A.M and came back to the spot with the Sub-Inspector, but by this time the marpit had already taken place. After the choukidar was sent to the Police Station the situation evidently became very tense and the dafadar Janki Singh states that as he had learnt that Harnandan Raut of Khoria and Mahant Ram Lakhan Das's men were going to come into conflict and have a marpit in village Khoria, he went to Ram Lakhan Das and on inquiries Ram Lakhan told him that he knew nothing about it. Sudarsan Das was there but he said nothing. On going to village Khoria however he met Harnandan who told him that he had a document for the land from before and that he expected that a mob would come from village Chourauth and that he would resist. Acting on this information he had sent the choukidar to the Police Station as stated already. But soon after, to use the exact words of the dafadar as translated:

the mob of both sides came and I asked them not to fight……They were also asked to avoid a breach of the peace and wait for the daroga who was to come……None of the parties listened to me and there was a marpit.

3. As a result of the encounter between the two parties, a very serious not took place on the spot. Upon these facts, the petitioners have been convicted for having been members of an unlawful assembly, the common object of which was “by force or show of force to enforce a right or a supposed right” of the land in dispute in village Khoria. Sir Sultan Ahmad appearing for the petitioners contends that when it is found that the title and possession of the land in village Khoria was with the accused party, the convictions under Ss. 147 and 148, I.P.C, are not maintainable. He relies upon the concurrent findings of fact of the Courts below to the effect that “Harnandan Raut and others purchased the land under a mere colourable pretence of title” and that the conveyance deeds executed in favour of Harnandan and others are spurious documents in order to set up mere colourable pretence of title. It must be remembered however that the right of private defence can be exercised only in special circumstances and with the restrictions imposed by Sec. 99, Penal Code. The important considerations which always arise in order to determine whether the action of the accused is covered by the right of private defence are, firstly, what is the nature of the apprehended danger and, secondly, whether there was time to have recourse to the police authorities, always remembering that where both the parties are determined to fight and go up to the land fully armed in full expectation of an armed conflict in order to have a trial of strength, the right of private defence disappears. In the present case there are very clear findings of fact in these terms that:

Mahant's men went to the place with the fill knowledge that they would be opposed by the gwalas of village Khoria. Harnandan's party also came there with full consciousness that they will have to fight them. Both parties were out for a trial of strength: ‘The simultaneous arrival of the mobs shows a state of preparation on both sides. The mobs were in no mood to listen to the remonstrance of the dafadar who asked them to wait till the arrival of the Sub-Inspector. The plain fact is that men on both Bides came with the avowed object of meeting force with force and violence with violence.’

4. The findings are also clear that:

No portion of the land was cultivated with any crop. There was no standing crop on the land anywhere. No property was in danger of being destroyed. No harm would have accrued if the parties were to wait for the police to whom information had already been sent.

5. In my opinion these findings bring the present case within the well-known rule of law laid down by a large number of cases, some of which will be noticed presently and render the action of the accused punishable. It was argued by Sir Sultan Ahmad however that upon the findings arrived at in this case, it is clear that the mahant's men had already ploughed up 5 kathas of the disputed land and had also dug up 1½ kathas out of 11 kathas and therefore he argues that the petitioners, who were in peaceful occupation and engaged in ploughing of a portion of the land to which their title by purchase has been proved, were justified in resisting by force the forcible aggression by the men of the complainants' party who came immediately after with the avowed object of dispossessing them; in other words he contends that the petitioners' party was the first to be on the field. But this contention must be rejected because as laid down in 35 Cal 3681 at page 380, such an enunciation of law would be dangerous to the peace of the country. It would justify a regular race between two factions as to who should arrive first.

6. In my opinion since it is found that the Police were present on the spot and were dissuading the parties not to fight but to await the arrival of the Sub-Inspector who had been sent for, that there was no immediate danger whatsoever of any property in this case (as I have already pointed out there was no standing crop on the land nor any valuable structure which was going to be demolished) and when both the parties knew, the one expecting an immediate attack from the other, the object of the assembly of the petitioners was not to prevent an aggression but to try out their strength by means of a pitched battle. The law applicable under these circumstances-has been the subject of consideration of a large number of decisions in this Court. In my view the true position has been accurately summed up in two recent cases of this Court where the correct distinction was pointed out as to the limits of the applicability of the law laid down by the Allahabad High Court in 20 All 4592 and by this Court in 11 Pat 523.3 My brother Rowland in Cri. Revn. No. 588 of 19354 has summed up the position in law as follows: “The law is thus stated in 20 All 459:

There can be no right of private defence where the not is premeditated on both sides unless the object of the assembly is shown to have been to repel forcible and criminal aggression.

7. In AIR 1929 Pat 7055 the above dictum was adopted. In 11 Pat 523 the decision turned on:

Whether it is proved that Udro Singh (i.e accused's party) had grown this tori crop and that his possession required to be protected by force against the offence of theft.

8. That question being answered in the negative, conviction resulted. These decisions recognize, and it is well settled, that in appropriate cases the right of private defence is an answer to a charge of rioting. There is no inconsistency between the above decisions and such cases as 3 Pat LJ 4196 and 14 PLT 228.7 These were cases in which the person in possession of property saw an actual invasion of his rights which invasion amounted to an offence under the Penal Code. He was entitled to defend himself and his property by force and to collect such numbers and such arms as were necessary for that purpose, there being no time to get police-help. The cases in 35 Cal 368 and in 13 PLT 1938 were cases in which the-accused, claiming rights in the one case of irrigation, in the other of fishery, knowing those alleged rights to be disputed, having no particular occasion or necessity to exercise them on the day of occurrence, went forth under arms expecting and intending to bring on a violent encounter. It was held that whether their claim was good or bad, there could be no right of private defence in those circumstances. The observations made in those cases must be read with reference to the circumstances.

9. In my opinion this proposition of the law which has been summarized by the learned Judge apply in its full vigour to the circumstances of the present case. My brother Noor in Cri. Revn. No. 319 of 19369 had again to consider the identical question and agreed with the observations of Rowland, J. in the case from which I have quoted in extenso above and pointed out that in the case before him, as in the present case, the accused knew full well that the constables were there and also that there were men on behalf of the complainant's party who would resist the removal of the crop and of the hut; and although it may be noticed that the but and the crops were found in that case to belong to the accused but nevertheless the learned Judge held:

Therefore from the circumstances it is clear that they went there to exercise their right by use of criminal force or show of criminal force.

10. The natural tendency of the law of all civilized states is to restrict within constantly narrowing limits the right of self-help and it is certain that no other principle can be safely applied to a country like India. If a person prefers to use force in order to protect his property when he can, for the protection of such property, easily have recourse to the public authorities, his use of force is made punishable by the Indian Penal Code, no matter what the intention of the person may be. The law says that he must not use force in such cases but should invoke the aid of the tribunals charged with the enforcement of the law: per Holloway, J. in 7 MHCR App Side 35.10 Lastly, reliance was placed upon the latest decision of this Court in 18 PLT 2111 but the facts of that case are entirely different. In that case it is pointed out that:

The circumstances in which an aggrieved party is bound to have recourse to the public authorities instead of taking his own measures for the defence of his property are not always easy to determine; but at least it is lawful for a person which has seen an invasion of his rights to go to the spot and object. It is also lawful for such person, if the opposite party is armed, to take suitable weapons for his defence.

11. The Court however in that case negatived the contention advanced on behalf of the Crown that there was evidence in the case that both parties had gone to the spot determined to fight and held that bearing in mind that the accused party were in effective possession at the time of the occurrence having grown the khesari crop, they were entitled to go to the land to see that their crops were not removed by the complainant's party, and when the complainant's party came, it was found that the accused did not resort to use of force but seemed to have shown on the other hand some amount of forbearance. The learned Judges pointed out that the fight began when an attack was made on Prahlad upto which time the accused were entirely in the right and it was held that when the assault began the prosecution party became unlawful assembly and the accused had a right of private defence. Upon a careful consideration of the circumstances in the present case I am of opinion that the conviction of the accused must be maintained. The question which has greatly troubled us is the imposition of a proper sentence of imprisonment. On the one hand it is quite clear that the accused had title and possession of the land for which they had paid valuable consideration to the persons who had a right to sell, but on the other, the accused did not listen to the remonstrances of the dafadar who had sent for the Sub-Inspector to come to the spot and instead prepared themselves for a battle in full expectation of being resisted by the gwalas at a time when no immediate danger of their person or property was apprehended. It is pointed out however that the party of the accused was very severely assaulted in the encounter. The injuries on the accused party have been given in detail at pp. 8 and 9 of the judgment of the learned Additional Sessions Judge. In these circumstances I consider that the ends of justice will be met if the accused in this case be sentenced each to six months' rigorous imprisonment, the sentences under Sec. 326, I.P.C, will be concurrent. In the result the convictions of the petitioners are maintained with the variation ordered above.

12. Criminal Revision No. 189 of 1938.

13. This is a counter-case arising out of the facts, which led to the institution of proceedings against the accused which has just been disposed of in Criminal Revision No. 149 of 1938. It is unnecessary to deal with the relevant facts separately in this judgment. We have heard Mr. Sarjoo Prasad on behalf of the petitioners at great length but we are unable to come to the conclusion, as he contends that the gwalas were in possession of the land and that the findings of fact of both the Courts below were vitiated because they went into the question of title of Harnandan. It was certainly open to the Courts to go into the question of title incidentally in order to decide whether they could believe the evidence of possession and in order to see which of the parties was really acting in exercise of his right or whether he was making out a pretence to engage in a pitched battle. In my opinion there are very clear findings of fact of both the Courts which make it impossible for this Court to interfere in revision. The facts found are that the accused without any show of title or right, having secured a spurious document from a person not in possession, went armed in order to engage in a pitched battle with the persons who were expected to come on behalf of the mahant to support Sudarsan Das who had obtained a sale deed from the original owners who were in possession of the land in village Khoria and that the accused refused to resist from a fight although the dafadar had tried his utmost to dissuade them from so doing. The accused Harnandan, the leader of the accused party, definitely told the dafadar in the morning that he was expecting an attack from the mahant's side but as he had a document in his favour, he would resist the attack with force of arms. In this case I agree with the learned Additional Sessions Judge that:

The accused party engaged in a pitched battle to take forcible possession of the land and that this action must be sternly discouraged. The petitioners are not men who have been brought down to crime by poverty: they acted in contumacious defiance of the law.

14. I would therefore dismiss the application of these petitioners in revision. In my opinion the sentences awarded are quite appropriate. We desire to express our appreciation of the action of the Sub-divisional Officer who insisted on obtaining a charge-sheet in the teeth of the final report submitted by the local police. It is difficult to understand how in the case of such a serious not the police could submit a report with the remarks that the matter was of a civil dispute. A perusal of the record shows that the Superintendent of Police very rightly insisted on 3rd August 1937 that a charge-sheet should be called for in the interest of justice against both the parties.

Chatterji, J.:— I agree.

V.B.B/R.K

15. Order accordingly.