Authored By : William Comer Petheram, James Quain Pigot,James Quain Pigot, William Comer Petheram, S.C. Ghose

William Comer Petheram C.J., James Quain Pigot, James QuainPigot, William Comer Petheram and S.C. Ghose, JJ.

1. This was a suit for arrears of rent due on account of theyears 1291, 1292, and 1293 in respect of a mouzah called Sultanpur. The suitwas brought on a registered kabuliut.

2. The learned Judges who heard the appeal made to thisCourt have referred to us for decision the following question:Whether suits forrent, founded on registered contracts in respect of lands subject to theprovisions of the Tenancy Act, are governed by the limitation provided in thatAct.

3. We think the question must be answered in theaffirmative. By Section 184 of the Rent Act, all suits for arrears of rent mustbe instituted within the time prescribed in Schedule III of that Act, and thatin a suit for rent is declared to be three years. We think that this suit isgoverned by that Act, and the limitation is three years.

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Syed Mahomed Ali Khan vs. Mackenzie and Ors. (24.03.1891 -CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 09.11.1891

Appellants: Ferasat and Ors.

Vs.

Respondent: Queen-Empress

Honble Judges/Coram:

Beverley and T. Ameer Ali, JJ.

Subject: Criminal

Catch Words

Mentioned IN

Citing Reference:

Discussed

1

Mentioned

5

Case Note:

Cumulative Sentences - Rioting--Distinct offences--Separateconviction for rioting and causing hurt and grievous hurt--Penal Code (Act XLVof I860), Sections 71, 148, 152, 332, and 333.

JUDGMENT

Authored By : Beverley, T. Ameer Ali

Beverley and T. Ameer Ali, JJ.

1. This appeal arises out of the first of the trials inconnection with the riot that took place in the northern part of the town ofCalcutta last May. In that trial the eight appellants were convicted by a juryof various offences, and sentenced to various terms of imprisonment, as set outbelow. The names of the eight appellants are--

1. Shaik Ferasat.

2. Shaik Ismail.

3. Shaik Masand.

4. Shaik Hisabul.

5. Shaik Manir Khan.

6. Shaik Abdul.

7. Shaik Jan.

8. Shaik Shairu.

2. In the first place all the appellants have been convictedof rioting, being armed with deadly weapons, and under Section 148 of the PenalCode have been sentenced to three years rigorous imprisonment for thatoffence. In the next place they have all been found guilty of assaulting andobstructing the police when endeavouring to suppress the riot, and, underSection 152 of the Penal Code they have all (with the exception of Shairu) beensentenced to an additional term of two years imprisonment for that offence.

3. Then Shaik Ismail has also been found guilty of causinghurt to Corporal Shankar Singh, and for that offence he has been sentenced,under Section 332, to an additional term of two years imprisonment.

4. Similarly, Shaik Manir Khan has been convicted of causinghurt to Constable May, Constable Rose, and Superintendent Robertson, and hasbeen sentenced to an additional term of two years.

5. And Shaik Shairu has been convicted of causing grievoushurt to Superintendent Robertson, and under Section 333 has been sentenced toan additional term of five years.

6. Now, the first point taken by Mr. Garth on behalf of theappellants is that the learned Sessions Judge has contravened the provisions ofSection 71 of the Penal Code by imposing separate sentences for the offencesunder Section 148 and Section 152. in this contention we think Mr. Garth isright. The common object of the unlawful assembly is set out in the charge asbeing to resist the execution of a decree obtained by Suresh Chunder Debagainst Shaik Ali Yar in the Court of the Second Subordinate Judge of Alipore,dated the 30th April 1891; and also by means of criminal force or show ofcriminal force to overawe the members of the police force in the execution oftheir lawful powers as police officers." Were it not for certainobservations in the learned Sessions Judges charge to the jury, we should havesupposed from the manner in which the indictment is worded that the intentionwas to charge the accused with being members of an unlawful assembly which hadin view the double object of resisting the execution of the decree andoverawing the police. The offence as charged is one--one unlawful assembly witha common, though two-fold, object. There is no indication in the charge of twodistinct assemblies with two distinct objects.

7. What the learned Sessions Judge says on this matter isthis. He begins by saying: "You will observe that it is a double object,but either of the two objects set out, if proved to be the common object of theassembly, would be sufficient to bring it within the definition of an unlawfulassembly under Section 141." Further on he says: "Had the personscomposing the assembly a common object, and if so, what was that object Thisis the first question that arises for your decision in the case. The case forthe prosecution is that the men assembled in the manner described for thecommon object of resisting by force, &c. (quoting the words of the chargeas set out above)." In another passage he says: "Next morning whenSub-Inspector Binod Behari Singh went to the spot, a crowd of about 200 peopleassembled there. Whether they were already assembled when he arrived, orwhether they assembled immediately after his arrival, is one of the points towhich cross-examination was directed." And again: "The case for theprosecution is, not that execution was actually taken out, but that the personscomposing the assembly were under an apprehension of the removal of the mosquein execution of the decree, and that they came there armed to resist thatexecution."

8. From these and other passages in the charge it wouldappear that one of the questions in the case was whether there was an unlawfulassembly before the arrival of the Police. There is no distinct finding uponthis point by the jury however; they were not asked to say what the commonobject of the assembly was; they merely returned a verdict upon the charge asframed, and having regard to the wording of that charge, we must take it thatthe common object found was, partly at any rate, to resist the Police.

9. That being so, resistance to the Police was one of thecomponent parts of the offence of rioting of which the appellants have beenconvicted, and for which they have been sentenced to the maximum punishmentprovided by the Code The maximum punishment under Section 152, which deals withthe offence of assaulting or obstructing a public servant when suppressing ariot, is the same.

10. Section 71 of the Penal Code says:

Where anything which is an offence is made up of parts, anyof which parts is itself an offence, the offender shall not be punished withthe punishment of more than one of such his offences, unless it be so expresslyprovided. Where several acts of which one or more than one would by itself orthemselves constitute an offence, constitute, when combined, a differentoffence, the offender shall not be punished with a more severe punishment thanthe Court which tries him could award for any one of such offences.

11. The finding of the jury, we take it, was that the commonobject of the unlawful assembly was to obstruct the Police, and the violenceused to the Police was the element which rendered the members of the unlawfulassembly guilty of rioting.

12. For this reason we are of opinion that the additionalsentences passed upon seven of the appellants under Section 152 were illegal,and must be set aside,

13. We think there is another objection to the conviction ofthe appellants under Section 152, to which, however, we need do no more thanrefer in passing. Section 152 appears to contemplate an assault or obstructionto some particular public servant. But the charge as framed in this case is tothe effect that the accused "assaulted and obstructed members of thePolice Force in the discharge of their duties, etc."

14. The next point urged by Mr. Garth was that separatesentences under Section 152 and under Sections 332 and 333 were illegal. Inthis contention also we agree with him. The hurt inflicted upon certain Policeofficers was the violence used towards them, which constitutes the essence ofthe offence under Section 152. As, however, we have said that the sentencesunder that section must be set aside, we think it unnecessary to say more uponthis point.

15. The next point which Mr. Garth argued before us was thatthe cumulative sentences passed upon Ismail and Munir Khan under Sections 148and 332 were illegal. Mr. Garth contended that under the same Section (71 ofthe Penal Code) the punishment imposed for both offences could not exceed themaximum punishment provided for either offence, and that the maximum punishmentunder Section 332 being three years only, and these appellants having beenalready sentenced to three years imprisonment under Section 148, they were notliable to additional punishment under Section 332.

16. It has been laid down by a Full Bench of this Court inNilmony Poddar v. Queen-Empress I.L.R. 16 Cal. 442 [LQ/CalHC/1889/40] that "separatesentences (to quote the head note) passed upon persons for the offences ofrioting and grievous hurt are not legal where it is found that such personsindividually did not commit any act which amounted to voluntarily causing hurt,but were guilty of that offence under Section 149 of the Penal Code." Butit seems to be taken for granted in that case, and it has been ruled in othercases, that where a particular person causes hurt in the course of a riot, hemay be punished both for causing the hurt and for taking part in the riot.Chundra Kant Bhattacharjee v. The Queen-Empress I.L.R. Cal. 495 Mohur Mir inthe matter of v. The Queen-Empress I. L R. Cal. 725 Empress v. Ram PartabI.L.R. AIL 121; Queen-Empress v. Pershad I.L.R. All. 414; Queen-Empress v. RamSarup I.L.R. All. 757. But Mr. Garths contention is that although separatesentences may be legal, yet that in the aggregate they cannot exceed themaximum punishment provided for either offence. On this point we have not beenable to find any distinct authority. The sentences passed in this case areclearly legal, unless they contravene the provisions of Section 71 of the PenalCode. Mr. Garth admits that the first and third Clauses of that section willnot apply, but he relies on the second Clause. That clause runs as follows:"Where anything is an offence falling within two or more separatedefinitions of any law in force for the time being by which offences aredefined or punished, &c." We are unable to see how this clause canpossibly apply to the case before us. The clause is intended to apply to actswhich might be offences under different Statutes or under different sections ofthe same Statute, as, for instance, offences under Sections 152 and 353 of thePenal Code. The two offences of rioting and causing hurt are distinct offences;the accused were guilty of rioting independent of the hurt they caused, theywere guilty of causing hurt independent of the riot. They could be punished forrioting even though they had not themselves caused hurt; they could be punishedfor causing hurt even though they had not themselves been members of theunlawful assembly. We think there is nothing therefore in Section 71 thatlimits the punishment that may be imposed for these offences, and we do notthink the sentences imposed are illegal.

17. There remains the question of punishment generally, andMr. Garth has contended that all the sentences imposed are unnecessarilysevere.

18. The riot in question arose out of a belief--a mistakenbelief no doubt--that an attempt was to be made that day to pull down a mosquethat stood on the land for which Suresh Chunder Deb had obtained a decree. Therioters, in the first instance at any rate, were all Mahomedans, and theirreligious enthusiasm was doubtless worked upon and excited by the harangues ofthe Moulvi or Muezzin, Shaik Ali Yar, who subsequently lost his life in theriot. It would appear that the first attack was made upon some dhangar coolieswho, though really only spectators, had, it was believed, been brought to thespot for the purpose of demolishing the mosque. But at that time the Policewere on the spot, though some of them were in plain clothes, and the attackupon the dhangars seems to have been immediately followed by an attack on thePolice. The Police were driven back, and even after reinforcements arrived,they were again and again defeated. Ultimately the mob became so excited andwas so swelled by increasing numbers, that it required nearly the entire Policeforce of the town to put down the riot. Now, whatever may have been the initialcause of the disturbance, however misguided and blinded by fanaticism theactors in it may have been, we think that we are bound to take thesecircumstances into consideration, and while making allowance for the religiousexcitement under which the rioters were no doubt labouring, to take care thatthe majesty of the law is sufficiently vindicated. There can be no doubt, wethink, that whatever may have been the object with which the mob originallyassembled, their offence was very grossly exaggerated by the unprovoked andsustained attack upon the duly constituted authorities. It is a far worse case,we think, than the riots which unhappily so frequently take place between theadherents of rival zemindars regarding the possession of land. In the fightthat ensued, several persons on both sides were severely injured and more thanone person was killed. We think, therefore, that the punishment ought to besuch as to mark our sense of the gravity of the offence by the defiance of theauthorities. At the same time, as regards those who have merely been convictedof rioting, and against whom no specific acts of violence have been proved, wethink that some allowance may fairly be made for the state of religiousfanaticism to which their feelings had been roused by the exhortations of theirreligious leaders, and that it is not necessary to exact the maximum penaltyallowed by the law. In the case of those appellants therefore against whom noovert act of violence has been proved, that is to say, in the case of Ferasat,Masand, Hisabul, Abdul, and Jan, we reduce the sentence under Section 148 fromthree to two years, and reverse that under Section 152 altogether. Theseappellants will therefore undergo rigorous imprisonment for a term of two yearsonly, instead of five.

19. As regards the other appellants, specific acts ofviolence have been proved against them, and it may be presumed therefore thatthey were ringleaders or at any rate active participators in the riot. We seeno sufficient reason therefore to reduce the sentence under Section 148 intheir case, but the sentence under Section 152 will be reversed in the case ofIsmail and Manir Khan. These appellants have also been sentenced to two yearsimprisonment under Section 332, but having regard to the fact that they havealready been sentenced under Section 148, we do not think that the sentenceunder Section 332 should exceed that provided by Section 323. We accordinglyreduce the punishment under Section 332 to one year. The result is that thesetwo appellants will suffer four years imprisonment, instead of seven years.

20. The appellant Shairu has been sentenced to five yearsunder Section 333 in addition to three years under Section 148. Looking to thenature of the injuries that Superintendent Robertson is proved to havereceived, we are of opinion that an additional sentence of two years underSection 333 will meet the ends of justice. His aggregate sentence thereforewill be reduced from eight years to five years.

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Ferasat and Ors. vs.Queen-Empress (09.11.1891 - CALHC)