Anwar Ali and Others vs Emperor

Ross, J.—The petitioners have been convicted under Sections 147 and 148 and three of them u/s S24 of the Indian Penal Code. The common object of the unlawful assembly is said in the charge to have been by means of criminal force to enforce the right or supposed right of Mir Wazuddin of Dehti to Taran ghat. It appears that Jan Ali the complainant has some Millik in Taran and has a private ferry over the river Bakra which was formerly called Taria. Wazuddin is the patnidar of a portion of Mouza Taran and there was a civil suit about the ferry rights and it was decided that the actual ferry which was the subject of that litigation belonged to the Millikdar. But it was conceded at the hearing of the second appeal in the High Court that he had no objection to the patnidars plying a ferry anywhere within their own patni provided there was nothing in law to prevent them from doing so under the Ferries Act.

This being a private ferry it is not governed by the Ferries Act. The law relating to private ferries is laid down in Nityahari Roy v. Dunne [1891] 18 Cal. 652 where it was held that.

there is nothing in the law of Bengal as it was before the acquisition by the British Government, or in the regulations before or after 1793, to show that any person is entitled to claim a monopoly of a right of ferry by prescription or by any other means than a grant from the Crown.

That decision was followed by the Bombay High Court in Shama Durgaji Bhoi v. Gangadhar Narayan Muzumdar AIR 1922 Bom. 245 wheve it was laid down that

the right to ferry franchise between two villages cannot be acquired by mere prescription, but there must be facts proved from which, if there is no direct grant from the Government, it can be implied that such grant was actually shade.

There being no monopoly in a private ferry, the patnidar was fully entitled to ply a ferry on his own property as, indeed, was conceded by the Millikdar in the High Court. This is what he did and it was because of the competition between these two ferries that this occurrence took place. The map prepared by the trying Magistrate after his local Inspection shows clearly that the two ferries were locally quite distinct and in fact the distance between them is stated in the judgment to be 75 yards. That being so, if the charge means thart the accused persons were enforcing the right of the patnidar to the Millikdar''s ghat, then it is contrary to the admitted facts.

But if it means that they were enforcing the patnidar''s right to his own ghat, then it would not be a case of enforcing a right but of maintaining a right, and the charge of rioting must fail.

The conviction of three of the petitioners under Secation 324 remains for consideration. The judgment of the learned Sessions Judge shows that several of the petitioners received injuries as well as some of the complainant''s party. The injuries on the petitioner''s side are explained by the learned Judge as probably due to one of the complainant''s party having snatched the sword away from the assailants and used it on them.

This seems to be a speculative finding and the medical evidence shows that the injuries on the complainant''s side might have been caused by a split bamboo which was the case for the defence. The injuries were evidently received in the mutual fight in which the complainant''s party were apparently in the wrong.

The right of private defence protects the petitioners and all the convictions must be set aside. The petitioners are, therefore, ordered to be, acquitted and released from bail. The fines, if paid will be Tefunded.