Balaram Nandi vs The Chairman, District Board

Mitter, J.—This Rule is for quashing, in the alternative, for stay, of criminal proceedings u/s 28 of the Bengal Ferries Act, 1885 (Ben. Act I of 1885), and Section 100E of the Bengal Local Self-Government Act, 1885, now pending against the Petitioner and several others before Sri G.P. Bose, Magistrate, first class, Malda. The stay asked for is until the disposal of a civil suit, which the Petitioner and three others instituted in the court of the Munsif at Malda, for, inter alia, a declaration that the Plaintiffs were entitled to ferry their cattle across the river without any charge.

The Petitioner''s case is that he is an inhabitant of Sahapur, a village situated on the bank of the river Mahananda, on the opposite side of the town of Malda. It is said that the inhabitants of that village have very often to cross that river to obtain their requirements from the town of Malda. It is also said that many of them have their own boats. It is said, lastly, that the lessee of the public ferry called Jhawghatta ferry, under the District Board of Malda, started proceedings against certain of the villagers of Sahapur u/s 144 of the Code of Criminal Procedure on the ground that they were running a parallel ferry. The order u/s 144 was subsequently rescinded. Thereafter, the civil suit referred to was instituted. On April 28, 1952, the Chairman of the District Board of Malda instituted a complaint against the Petitioner and several others u/s 28 of the Bengal Ferries Act, 1885, and u/s 100E of the Bengal Local Self-Government Act, 1885, whereupon processes were issued against the Petitioner and others. It is to quash, in the alternative, to stay, these proceedings, that the present Rule was issued.

The Rule was issued on two grounds, namely, the complaint did not disclose any offence, and the criminal proceedings were, in any event, liable to be stayed in the interests of justice.

In respect of the first ground, Mr. S.S. Mukherjee argues that the complaint by the Chairman of the District Board is wanting in necessary particulars and does not disclose any offence either u/s 28 of the Bengal Ferries Act or u/s 100E of the Bengal Local Self-Government Act. It cannot be disputed that a petition of complaint should contain a statement of facts constituting the offence with which it is sought to charge the accused person. A mere allegation of an offence under a particular section of any penal statute is not sufficient. In the present case, it is stated in the petition of complaint that the accused persons, not having received concessions in the matter of tolls, combined to ply unauthorised ferries of their own within 500 yards of the said Jhawghatta ferry. It is also stated in the petition of complaint that the accused persons were not only ferrying themselves across the river but also others to the serious detriment of the revenues of the public ferry. These allegations clearly indicate what it is that brings the accused persons within the mischief of either Section 28 of the Bengal Ferries Act or u/s 100E of the said Local Self-Government Act. Section 16 of the Bengal Ferries Act, 1885, provides:

No person shall, except with the sanction of the Magistrate of the district, maintain a ferry to or from any point within a distance of two miles from the limits of a public ferry.

The provisos to the section are not material for our present purpose.

Section 28 of the said Act provides:

Whoever conveys for hire any passenger, animal, vehicle or other thing in contravention of the provisions of Section 16 shall be punished with fine which may extend to fifty rupees.

The petition of complaint not only alleges that the accused have started a parallel ferry, but also that they have been plying unauthorised ferries within 500 yards of the public ferry.

Section 100E of the Bengal Local Self-Government Act of 1885 is in these terms:

If any person, without the sanction of the District Magistrate, constructs a temporary bridge or plies a ferry not ostensibly for hire within two miles of a public ferry, which is under the management of the District Board, or a bridge on which a District Board is authorised to levy tolls he shall be liable to fine which may extend to one hundred rupees.

Mr. Mukherjee argues that whereas in the case of Section 28, it has got to be shown that the person concerned conveys for hire, Section 100E, referred to above, speaks of plying a ferry not ostensibly for hire, and that, therefore, one is irreconcilable with the other. He argues, further, that that being so, the facts stated in the petition of complaint do not show whether the offence complained of is either u/s 28 of the Act concerned or u/s 100E of the other Act or whether the offence falls under both sections. We should say the least we must with regard to these matters, because we have decided that the proceedings are to continue. We must, however, point put that the two sections can be reconciled with each other; for a person can ply for hire and still not do so ostensibly. The real grievance of the complainant appears to be that the accused persons are said to be plying their boats for hire, though not ostensibly.

Mr. Mukherjee next argues that, in any event, the criminal proceedings should be stayed until the disposal of the civil suit. He refers to Clause (6) of the lease, whereby certain rights were reserved to the villagers of Sahapur, and which now form the subject-matter of the civil suit. It does not appear to us that the reservation of the rights under Clause (6) of the lease in any way affects the criminal case, at any rate, its continuance. The real question is whether, in the circumstances disclosed in this case, the criminal proceedings should be stayed until the disposal of the civil suit. There can be no doubt that it will be a long time before the civil suit is finally disposed of. On the other hand, the criminal proceedings cannot take much time, and the decision, one way or the other, by the criminal court, will not operate as res judicata in the civil suit. If the complainant is right, an early disposal of the criminal case will have the effect of protecting the interests of the public ferry; if the criminal proceedings were stayed until the disposal of the civil suit and then it was found that the complainant was right, the loss to the public ferry would be irrecoverable. Looking at the matter from this point of view, we think that it would not be right to stay the criminal proceedings.

In these circumstances, this application fails and the Rule is discharged.

Sen, J.

I agree.