Banerjee and S.G. Sale, JJ.

1. It appears that the petitioner in this case was directedby an order, dated the 28th of April last, to pay maintenance to his wife,Gyanada Sundari and his son, at the rates of Rs. 6 and Rs. 3 a month, respectively.The amount due for the last three months having remained unpaid, an applicationwas made for the enforcement of payment, and a warrant for levying the amountby distress was issued on the 10th of August last. The amount not having beenrealised under the warrant, the arrest of the defendant was ordered on the 1stSeptember, and on the 7th September the following order was made: "Broughtup to-day to pay Rs. 27 or in default to be imprisoned for one month. Allowedbail to the amount to pay in fifteen days." The amount not having beenpaid the following order was made on the 17th October: "Defendant appearsto-day. He has not paid the money. Warrant of commitment to jail for one monthunder Section 488 of the Code of Criminal Procedure to be issued." Then onthe 18th idem an application was made by the brother of the defendant offeringthe amount due and praying for the release of the defendant. Upon that, this isthe order that was made: "The amount may be paid by the petitioner, butthe punishment is absolute. It is not dependent on payment of the maintenanceallowance." The amount was received, but the defendant was not released.

2. It is this order the propriety and legality of which havebeen called in question before us, and we have been asked, under Section 439 ofthe Code of Criminal Procedure, to set it aside for three reasons-first,because an opportunity should have been allowed to the petitioner to prove thechange of circumstances which he alleged in his petition and which went to showthat the order required to be modified; secondly, because no sentence ofimprisonment is authorised by Section 488 of the Code of Criminal Procedure,unless it is shown that there was wilful neglect to comply with the order ofthe Court; and, thirdly, because the imprisonment that is authorized by Section488, being only a mode of enforcement of payment, should have been ordered tocease as soon as the payment was made.

3. We do not think that the first ground is tenable. Though,upon a change of circumstances being shown, the existing order may be modified,still, so long as that order remains in force, it must carry with it its properconsequences. This view is, we think, to some extent supported by the case ofNepoor Aurut v. Jurai 10 B.L.R. Ap. 33 : 19 W.R. Cr. 73.

4. The second ground urged before us is, however, in ouropinion, a valid ground for our interfering with the order. The provisions ofthe third paragraph of Section 488 being of a penal character ought, asobserved by Mr. Justice Straight in the case of Queen-Empress v. Narain I.L.RCal. 240 to be strictly construed, and, as far as possible, construed in favourof the subject. The paragraph runs thus: "If any person so orderedwilfully neglects to comply with the order, any such Magistrate may, for everybreach of the order, issue a warrant for levying the amount due in mannerhereinbefore provided for levying fines, and may sentence such person,&c." It is necessary, therefore, before the order can be enforced by asentence of imprisonment, that it should be made out that the non-payment ofmaintenance was the result of wilful negligence on the part of the defendant.There is nothing on the face of the order to show that that condition has beensatisfied. All that the Magistrate says in his order of the 3rd August is this:"Some evidence must be produced within seven days to show that the amounthas not been paid." The Magistrate here seems to think that the mere factof non-payment of maintenance feeling made out would be sufficient to justifyan order sending the defendant to jail. That view is, in our opinion, quitewrong.

5. We are also of opinion that the third ground is valid,though we must say that the question raised in connection with it is notaltogether free from difficulty. The language of the third paragraph of Section488 is not very explicit, and this creates some difficulty in construing it;and that difficulty is enhanced by the fact that the Madras High Court has inthe case of Biyacha v. Moidin Kutti I.L.R. Mad. 70 taken a view which isdifferent from that which we are now disposed to take. Mr. Justice HUTCHINSobserves: "The question is a difficult > one, but we are bound to go bywhat the Legislature has said, and I am constrained to hold that, although theMagistrate is not bound to order the full term of imprisonment for which thedefaulter is liable under Section 488 of the Code of Criminal Procedure, yetwhatever time is ordered must be served. The language of that section, and ofthe corresponding form in Schedule V, is very different from that employed incases where the imprisonment is to cease on payment." And Sir CHARLESTurner, Chief Justice, adds: "It is difficult to see what object theLegislature can have had beyond the enforcement of the payment unless it be topunish the husband for contempt of the order; but I am unable to say that thelanguage of the Code warrants any other construction than that which has beenadopted by my learned colleague."

6. No doubt, if the construction put upon the section by theCourt below had merely led to anomalous or unreasonable consequences, but hadclearly been the only construction warranted by the language of the section, weshould be bound, however great the unreasonableness might be, to follow theexpress words of the law. But with all respect for the learned Judges whodecided the case of Biyacha v. Moidin Kutti I.L.R. Mad. 70 we must say that thelanguage of the section is not so explicit and clear in favour of the viewtaken by the Magistrate. The section says: "If any person so orderedwilfully neglects to comply with the order, any such Magistrate may, for everybreach of the order, issue a warrant for levying the amount due in mannerhereinbefore provided for levying fines, and may sentence such person, for thewhole or any part of each months allowance remaining unpaid after theexecution of the warrant, to imprisonment for a term which may extend to onemonth." That shows that a sentence of imprisonment can be passed onlyafter there has been wilful neglect to comply with the order, followed by anunsuccessful process of distraint; and in that contingency, the sentence ofimprisonment is to be "for the whole or any part of each monthsmaintenance remaining unpaid after execution of the warrant." This, to ourminds, clearly indicates that the imprisonment that is ordered is, in the firstplace, not a punishment for contempt of the Courts order, as the learnedJudges of the Madras High Court in the case cited above seem to think; and, inthe second place, it is for the whole or any part of each months allowanceremaining unpaid after execution of the warrant. It cannot be regarded as apunishment for the breach of the order; for, if that were the case, thepunishment would follow upon the breach of the order, irrespective of anysuccess or the reverse in the levying of the amount by warrant, whereas that isnot what the section enacts. According to the express terms of the section, thedisobedience of the order may be never so gross and wilful, and yet, if theamount ordered to be paid is realised in full by execution of the warrant, nosentence of imprisonment is to follow. This conclusively shows that thesentence is not for the disobedience or contempt of the Courts order. Noragain would it be right in our opinion to hold that the sentence ofimprisonment is an absolute sentence, for the law says that the Magistrate maysentence such person "for the whole or any part of each months allowanceremaining unpaid" to imprisonment. That shows that the imprisonment is forthe unpaid portion of the maintenance or, in other words, that it is owing todefault of payment of the unrealised portion of the maintenance; and, if thatis so, the imprisonment that is ordered ought to cease upon payment being made.

7. We should add that even if the meaning of the section hadbeen otherwise, still, in the exercise of our powers of revision under Section439* of the Code of Criminal Procedure, we should have felt bound to reduce thesentence to imprisonment for a day or for such term as has been alreadyundergone.

8. For these several reasons we think that the ordercomplained of must be set aside and the petitioner discharged.

* High Courts powers of revision.

[Section 439: In the case of any proceeding the record ofwhich has been called for by itself, or which has been reported for orders, orwhich otherwise comes to its knowledge, the High Court may, in its discretionexercise any of the powers conferred on a Court of appeal by Sections 195, 423,426, 427 and 428, or on a Court by Section 338, and may enhance the sentence,and, when the Judges composing the Court of revision are equally divided inopinion, the case shall be disposed of in manner provided by Section 429.

No order under this section shall be made to the prejudiceof the accused unless he has had an opportunity of being heard eitherpersonally or by pleader in his own defence.

Where the sentence dealt with under this section has beenpassed by a Magistrate acting otherwise than under Section 34, the Court shallnot inflict a greater punishment for the offence which, in the opinion of suchCourt, the accused has committed, than might have been inflicted for suchoffence by a Presidency Magistrate or a Magistrate of the first class.

Nothing in this section applies to an entry made underSection 273, or shall be deemed to authorize a High Court to convert a findingof acquittal into one of conviction.]

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Sidheswar Teor vs.Gyanada Dasi (14.11.1894 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 17.12.1894

Appellants: The Katras-Jherriah Coal Company

Vs.

Respondent: Sibkrishta Daw and Company

Honble Judges/Coram:

William Comer Petheram, C.J. and Beverley, J.

Subject: Criminal

Catch Words

Mentioned IN

Case Note:

Criminal Procedure Code (Act X of 1882), Sections 145, 146 -Possession, Inquiry as to--Time at which Magistrate is to determine who was inpossession--Order passed under Section 146 on proceedings taken under Section145, Criminal Procedure Code.

JUDGMENT

Authored By : William Comer Petheram, Beverley

William Comer Petheram, C.J. and Beverley, J.

1. There is really no dispute about the facts in this case,and the only thing we have to consider is what is the just and legal order tomake, under the circumstances disclosed by the evidence of both parties.

2. On the 13th of October 1893 Babu Purno Chunder Daw, thesecond party in these proceedings, let certain collieries at Sheebpur withtheir appurtenances to the Katras-Jherriah Coal Company, who are the firstparty, for the term of eight months on certain terms as to royalties, etc., andsubject to a proviso that the company should be at liberty to purchase thewhole of the property demised, at any time during the term, for the sum of onehundred and fifty thousand rupees, payable partly in cash and partly indebentures of the company. The company took possession of the property andproceeded to work the collieries, and on the 29th of December gave notice tothe lessor of their intention to purchase the whole property in accordance withthe proviso. When this was done, the contract of sale was complete, theproperty was sold to the company, within both the ordinary and the legalmeaning of the word, and all that remained to be done was to carry out thecontract by the conveyance of the property, and the payment of the price in themanner provided by it. After this the usual correspondence seems to have passedbetween the solicitors as to the title and the various clauses of the proposedconveyance, and on the 10th of August the vendors solicitor wrote to thepurchasers solicitor making certain demands, and saying that unless the matterwas at once completed on the terms required by him, his client would considerthe matter at an end, and everything as cancelled. There is nothing in thesepapers to enable us to express any opinion as to which party was in the wrongin any of the questions which had been raised, or indeed to say what thosequestions were, but on the 11th the purchasers solicitors replied, repudiatingthe right of the vendor to cancel the contract, discussing the questions raisedin the letter of the 10th, and saying that their clients had always been readyand willing to carry out the contract.

3. On the same 10th of August, the vendor, Purno ChunderDaw, sent a person of the name of Boroda Kanta Ghosh, who had been a contractorat Sheebpur, from Calcutta to Sheebpur to work the collieries for him. Thisperson arrived at the place on the morning of the 11th, and on the 13th BehariLal Chatterjee, the head Babu in the vendors office at Calcutta, left forSheebpur to make arrangements for the working of the collieries, and from the14th to the 23rd these two persons were engaged in informing the people engagedin working the collieries that Purno Chunder had not sold the collieries and ingetting them to agree to work for them. From the time when the company began towork the collieries in October, Mr. John English was the Resident Manager ontheir behalf, and continued to be so until the 9th of August 1894, when he wasdismissed by the agents of the company, and handed over charge to Mr. Darby,who had been appointed by the company to take his place. Mr. English did notleave the place, but by the permission of Mr. Darby continued to occupy themanagers house, because he said it would be inconvenient for him to remove atthe moment, and in fact he has remained there until the present time. Mr.Hunter was the Engineer of the company from the time when they commenced towork, and continued to be so until the 24th of August, when, in consequence ofthe action of Babu Purno Chunder, he refused to act for them any longer, andannounced his intention of working for the other party. He has always residedin one of the houses at the collieries. On the night of the 14th Behari LalChatterjea and Mr. English went to Calcutta, where they saw Babu Purno Chunderon the 15th, when Mr. English obtained a letter from him appointing him tomanage the collieries on his behalf. Mr. English returned to Sheebpur on thesame night. Behari Lal Chatterjea returned on the night of the 17th. On the16th Mr. Darby became alarmed, and applied to the Police Inspector forprotection. On the 17th the Inspector sent a Head Constable to the place, andhimself followed on the 19th. He then saw that "both Mr. English and Mr.Darby were Managers." On the 22nd he submitted a report, on receipt ofwhich proceedings were taken under Section 107 of the Criminal Procedure Code,and on the 3rd of September both the Managers were bound down. On the 20thAugust Mr. Darby applied to the Sub-Divisional Officer at Ranigunge, askingthat he would order that the company should be kept in possession of theSheebpur Collieries. The Sub-Divisional Officer replied the same day, decliningto accede to his request "as he appeared to be in possession of thecollieries," and on the 21st Mr. Darby wrote again pressing his request,but no action was taken by the Magistrate. On the 24th a letter dated the 23rdwas received by the agents of the company in Calcutta from Babu Purno Chunder,informing them that he had appointed Mr. English manager of the collieries, andrequesting them to make over charge to him. On the same day, the 24th, at abouthalf past five oclock in the morning, Mr. Darby found that all the personsemployed at the place, except himself and his assistant, Mr. Deveria, hadrenounced the service of the company, and had agreed to work for Babu PurnoChunder. Mr. Hunter on that morning told him that he was no longer his servant,and that he had taken service with the other party, and on going to the pits hefound Mr. English there, engaged in sending miners down to get the coal for hismaster Babu Purno Chunder. The Police Inspector was present, and when Mr. Deveriaintimated his intention of using force to prevent the miners from going downthe pits, he informed him that he should not allow force to be used, and Mr.English said that at a whistle he could call one or two hundred men to aid thepolice. Mr. Darby then went to his own bungalow, then to the office of thecollieries where the books, papers and cash of the collieries were in the safe,locked up the office, handed the key to Mr. Deverine, the Police Inspector, andhimself went to Ranigunge to see the Magistrate, leaving Mr. Deveria in chargeof the house in which he had been living, and his servants in charge of hisfurniture, clothes and other effects. On the 28th Mr. Darby presented a formalpetition to the Sub-Divisional Officer praying him to institute proceedingsunder Section 145 of the Code of Criminal Procedure, and that the company mightbe maintained in possession, and on the same day the Sub-Divisional Officermade an order refusing to interfere. As we have said before, theSub-Divisional Officer, on the 3rd of September, made orders binding both Mr.Darby and Mr. English down to keep the peace, and, on the same day, he made anorder under Section 145, ordering the company and Babu Purno Chunder to appearin his Court on the 10th and put in written statements, and adduce suchevidence as they could in support of their claims. The taking of the evidencewas commenced on the 10th, was concluded on the 26th, and on the 1st of Octoberthe Sub-Divisional Officer gave his judgment. He thought that, upon theauthorities on the subject, the question he had to consider was who was in defacto possession on the 3rd of September, and he found that from the 16th ofAugust to the 23rd, the second party was gradually gaining possession, and hadfrom the 23rd of August to the time when he was giving his judgment, been defacto in "peaceful and undivided possession of the collieries, thetramways and wharfs." He adds that had he known from the first how seriousthe dispute was, he should have at once taken proceedings under Section 145,and that had he done so, there was little doubt that his decision would havebeen different, but, having regard to the fact that he thought his enquiry mustbe limited to the time subsequent to the 3rd of September, that being the dayon which he first commenced his own proceedings under the section, he declaredthe second party to be in possession of the Sheebpur and Kanthi collieries,together with the tramways wharfs and buildings appertaining thereto, andmaintained them in possession until ousted by law.

4. In the view we take of the facts of the case, it is notnecessary for us to express any opinion as to the exact point of time to whichan enquiry under the section must be directed, and we only mention the point inorder that we may not be understood as agreeing that in the present case theenquiry must be limited to the time during which the evidence was being taken.It is, we think, impossible to lay down any hard and fast rule which may beapplicable in all cases, and we do not understand that the Courts have everattempted to do so. All that they have done has been to decide when, accordingto the facts of the case then before them, the possession was to be found. Inthe present case, it is admitted on all hands that on the 20th of August thecompany were, at all events, in partial possession of the whole of the propertywhich was the subject-matter of the dispute, and on that day Mr. Darby appealedto the Magistrate to have his possession maintained, which could mean nothingbut that he asked for an enquiry under Section 145. This request was refused,because, as the Magistrate now admits, he had not sufficiently appreciated theposition of affairs, which had no doubt changed to some extent when he actuallycommenced proceedings on the 3rd of September. But to hold that under suchcircumstances the Magistrate is precluded from enquiring into anything beforethe date when he recorded his own proceedings, which he now tells us he oughtto have done thirteen days before, is, we think, to allow a person who has beenacting in an unwarrantable manner to misuse the process of the law to enablehim to carry out his high-handed and improper scheme, and this we cannotbelieve to have been the intention of the Legislature. But however this may be,we think it is clear upon the evidence of the second party themselves that theywere not in possession of the subject-matter in dispute on the 3rd ofSeptember, and that they never in fact got into possession of an important partof it until they were actually put in possession of it by the final order ofthe Magistrate made in this proceeding on the 1st of October, and it cannot bedoubted that a Magistrate under this section has no power to place either partyin possession of the subject-matter in dispute, or any part of it, but only tofind who is in possession of it as a whole, and, if that is impossible, to makean order under Section 146.

5. The subject-matter upon which the Magistrates finalorder operated was "the Sheebpur and Kanthi collieries, together with thetramways, wharfs and buildings appertaining thereto," and of this therecan be no doubt, that the buildings which contained the office, where thebusiness of the collieries was transacted, and where all the cash, books andpapers of the business were kept, was not only a portion, but a very importantportion, without which the business of the collieries could not be carried on.It is no doubt true that by the 23rd of August, the agents of Babu PurnoChunder had succeeded in getting all the persons employed in the actual work ofwining the coal and conveying it to the wharfs to agree to work for them, andby this means had obtained control of the out-door operations, and theiradherents were in such force on the ground, that any attempt, by Mr. Darby andMr. Deveria to resist them must have been hope-leas. But this was not the stateof things with reference to the office and some of the other buildings, or, inother words, to that portion of the subject-matter of the dispute, where theindoor business of the collieries was carried on. The office was in thepossession of Mr. Darby on the morning of the 24th. When he left, he locked itup, and handed the key to the Inspector of Police, no doubt for safe custody,and when Mr. English was giving his evidence on the 24th of September he toldthe Magistrate that he had not yet got possession of the office where he usedto work, that it was at that time locked up with the papers of theKatras-Jherriah Coal Company in it in charge of the police.

6. These are the undisputed facts, and the only question iswhat is the proper order to make under the circumstances. It is clear that theorder made by the Magistrate must be set aside, as its effect is to place thesecond party in possession of the office and other portions of the buildings,of which they had not obtained possession before, and no one suggests that theMagistrate had any power to do this, but it is pressed on us by Mr. Jacksonthat this is all we can do, and that when this is done we cannot ourselves makethe order which on the undisputed facts the Magistrate ought to have made, andat first sight we were much disposed to take that view. An examination of theauthorities however shows that this Court has on several occasions not only,set aside orders of Magistrates made under this Procedure, but has also itselfmade the order which should have been made by the Magistrate, upon the facts asproved at the inquiry [Ambler v. Pushong I.L.R. Cal. 365 Reidv. RichardsonI.L.R. Cal. 361]. It is, we think, clear that if we have the power to make anorder, this is a case in which we ought to exercise it, as if we merely setaside the Magistrates order and leave matters in the condition in which thatorder has placed them, we shall be allowing the process of the law to be usedby Babu Purno Chunder for a high-handed and unlawful purpose, inasmuch as Mr.English tells us that he can command the services of 5,000 miners to defend hisposition if it is assailed, and under such circumstances he would certainly bein a position to retain by force possession of the offices, etc., possession ofwhich was improperly given him by the order of the Magistrate.

7. During the time from the 20th of August to the 3rd ofSeptember, the second party had no doubt gained possession of a large part ofthe subject-matter of the dispute, whilst the first party continued inpossession of the remainder, and as under these circumstances it is manifestlyimpossible to find that either of the two parties was in possession of thewhole, the case is literally within the provision of Section 146, and the onlyorder which could legally be made under the circumstances would be an orderattaching the subject-matter of dispute under that section. Such an order willhave the effect of withdrawing the enjoyment of the collieries from bothparties, until the dispute has been settled or decided by some tribunalcompetent to deal with it, and this is the order which we propose to make.

8. We set aside the order of the Sub-Divisional Officer ofRanigunge and direct that under the provisions of Section 146 of the Code ofCriminal Procedure the Sheebpur and Kanthi collieries, together with thetramways, wharfs and buildings appertaining thereto, be attached until acompetent Civil Court has determined the rights of the parties thereto or theperson entitled to the possession thereof.

.

The Katras-Jherriah Coal Company vs. Sibkrishta Daw and Company (17.12.1894 - CALHC)