Gadadhar Bhagaria vs Emperor

Mullick, J.—The petitioner Gadadbar Bhagaria has been sentenced u/s 147, I. P. C. to rigorous imprisonment for one year for having on 25th April 1921 taken part in a riot outside the Sub-jail at Giridhi. It is alleged that the rioters numbered about 7,000 and that in it the coarse of a bombardment with stones and bricks they caused hurt to an Inspector, two Sub-Inspectors, two Head Constables, five constables and some warders; they also caused extensive damage to the barracks, and severely assaulted with lathis and brickbats, an orderly peon who was in search of his master and finally on their way back from the Sub-jail, they attacked the Giridih Thana and wounded the Sub-Inspector who attempted to defend it.

The Hon''ble Judges constituting the Divisional Bench which heard the petitioner''s application for revision having differed as to the sentence, the case has been referred to me; one learned Judge Mr. Justice Jwala Prasad is of opinion that at best this was a case of technical rioting so far as the petitioner is concerned and that a fine of Rs. 500 with two sureties for keeping the peace for one year will meet the ends of justice; the other learned Judge Mr. Justice Coutrs is of opinion that the petitioner took an active part in the riot and that the sentence of one year''s rigorous imprisonment is not unduly severe.

It appears that out of the 26th accused sent up for trial before the Sub-Divisional Magistrate of Giridih, 11 were acquitted and 15 convicted. On appeal the Judicial Commissioner of Chota Nagpur maintained the sentence of one year''s rigorous imprisonment with regard to 13 of the appellants before him and with regard to the remaining two, he reduced their sentences on account of their youth.

The facts which seem to me to be established by the evidence are as follow. The territory within the jurisdiction of the Pachamba Outpost in the Sub-Division of Giridih comprises many collieries where large numbers of coolies are employed. At or about the time of the alleged riot a movement called in these proceedings the Non-Co-operation movement was being girovously pushed within this area, and a local tribunal setup by the Non-Co-operators in opposition to the King''s Courts had ordered that one Piar Ali should he boycotted and prevented from having access to the village well because he had refused to accept the tribunal''s, award in a dispute between him and one Kedar Nath about the sale of a cow. Piar Ali''s daughter having gone to draw water from the well was assaulted by a Muhammadan named Mogal Jan acting under the orders of the tribunal. Upon Piar Ali''s complaint to the Police Officer in charge of the Puchamba-Out-post, Mogal Jan was arrested on the 24th April on a charge u/s 341, I.P.C. and taken to the Outpost at about 11 P.M. A crowd of 150 men accompanied him to Outpost and upon his declining to give bail the Police despatched him in custody to the Giridih Thana to which the Outpost is subordinate. It is to be explained that as those who follow the doctrine of Non-Cooperation do not recognize the administrative machinery set up by His Majesty''s Government, it was contrary to Mogal Jan''s principles to give bail. Mogal Jan reached the Giridih Thana at about midnight accompanied by the same crowd. He was kept in the lock-up till 6-30 A. M., when one Pearey Lat stood bail for him and took him away. An hour later Pearey Lal returned and surrendered Mogal Jan saying that the Non-Co-operators would not allow him to be released on bail. Meanwhile the Non-Co-operators had recruited a large mob, the evidence is that it numbered 5,000 at first and was later reinforced by a detachment of 2,000 headed by one Chittaranjan Guha. Not deterred, the Police nevertheless forwarded Mogal Jan in custody to the Giridih Magistrate''s Court which was then holding morning sittings in consequence of the heat. The mob followed and entered the Court compound and some made their way to the court room. The Sub-Divisional Magistrate Babu Bhawani Prasad finding that Mogal Jan was not willing to give bail suggested that he should enter into recognizances, but even this proposal was not accepted owing to the intervention of some Non-Co-operators. It was then ordered that Mogal Jan should be kept in custody pending his trial, and a force consisting of one Inspector, two Sub-Inspectors, one Head Constable and five constables was deputed to take Mogal Jan to the Sub-jail which is 200 or 300 yards from the Court house. But progress through the mob was slow and the journey occupied 10 or 15 minutes. Before the Jail was reached a part of the mob numbering about 1000 rushed to the jail gate and demanded that either Mogal Jan should be released or that they themselves should be permitted to go to Jail with him. The warders naturally resisted this demand, and when the escort arrived with Mogal Jan, the Police Officers also insisted that Mogal Jan should be lodged in jail and that no member of the mob should be allowed to enter. Thereupon a violent fusillade of bricks and other missiles began, and both Warders and Police were injured Mogal Jan was hurried into the Warders'' barracks where the escort and the warders also took shelter. After about an hour, finding that the mob showed no inclination to disperse, the Inspector took off Mogal Jan''s handcuffs and set him free but this had no effect.

Next an attempt was made to break through the mob a Treasury Head Constable named Wali Muhammad, who was armed with an unloaded rifle, succeeded in doing so by fixing bayonet and charging; but the remaining members of the escort were driven back again into the barracks. At this point the Sub-Divisional Magistrate accompanied by a Deputy Magistrate and Sub-Deputy Magistrate reached the Jail gate and attempted to pacify the rioters who for some unaccountable reason were complaining that two of their number had been killed by the Police and that their bodies were being concealed within the Jail. The Sub-Divisional Magistrate thereupon took the petitioner, who appeared to be one of the leaders, and one Satis Babu inside the Jail and showed them that the allegation was utterly false. But the rioters were not satisfied and stone throwing continued. Finally at the Sub-Divisional Magistrate''s suggestion a second search was agreed upon and three men alleged to be colliery coolies were taken round the jail and upon their informing the rioters that no dead bodies were being concealed in the jail, the rioters moved off; but, as has already been stated, on their way one group attacked the Giridih Thana and injured a Sub-Inspector.

All the doors and windows of the barracks and the gate of the jail are reported to have been damaged and all the members of the police force and some warders were hurt by brickbats or stones. Guder Tewari the orderly peon had no less than 12 injuries which were caused by lathi blows and brickbats and having regard to the size of the mob it is certainly fortunate that there was no loss of life or arson or forcible rescue of prisoners. The wicked cry that two men had been killed by the Police was clearly the scheme of some malicious mind and was admirably suited to incite a rabble of ignorant colliery coolies to every imaginable excess; it is the merest chance that it did not succeed.

Nevertheless such as it was the occurrence was sufficiently serious.

From the facts thus narrated I think it is clear that the common object of the unlawful assembly at the Pachamba outpost and at the Giridih Thana on the night of the 24th April and on the morning of the 25th April both at the Giridih Thana and the Sub-Divisional Court house was to overawe the public servants who were charged with the custody of Mogal Jan by show of criminal force. It was clearly the intention of the assembly to obtain Mogal Jan''s release without any of the formalities required by the law. At the jail the same common intention was manifest. It is clear that the intention of the thousand men, who first ran to the jail gates, was to overawe the jail staff in the exercise of their lawful powers. They were determined that Mogal Jan should not be detained in jail; the throwing of brickbats began when the Police declined to let them have their own way.

There can, therefore, be no doubt that the offence of rioting was complete, and the only question is what part the petitioner Gadadhar took in the riot.

His case is that he was trying to pacify the mob; that while the question of Mogal Jan''s bail was being considered, he came out of the Court room and addressed the mob from under a Pipal tree in the compound on the principles of Non-Co-Operation without violence" and impressed upon his audience the teachings of Mahatma Gandhi; that he did not move from the tree till the Sub-Divisional Magistrate came out; that it was at the Sub-Divisional Magistrate''s request that he accompanied him to the jail; that there he tried to stop the stone throwing but without success, and that after assisting in the first search of the jail, he with the permission of Maulavi Reza Karim, Deputy Magistrate left the place and went home.

Now the Sub-Divisional Magistrate who heard the case in the first instance has made a very careful examination of the evidence produced against each of the 26 prisoners placed before him, and no one can say that at least in the case of the petitioners father Bansidhar Marwari and of Chittaranjan Guba and the Vakil Jainarayan, he has shown any disposition to take a harsh or biassed view in favour of the prosecution. He has acquitted these prisoners because upon the evidence he thought it possible that either they were not present among the rioters outside the jail or that they were honestly trying to put a stop to the riot; but in the case of the petitioner Gadadhar, he has come to the deliberate conclusion that his defence cannot be accepted.

It is quite clear that Gadadhar''s story that he accompanied the Sub-Divisional Magistrate to the jail is false. It is true that he was seen haranguing the mob under the pipal tree and that he was then preaching non-violence; but his subsequent conduct shows that he was in favour of and was prepared for violence; for he followed the mob as soon as a rush was made at the jail gate and when the Police arrived with Mogal Jan he was at the gate trying to get it opened: further when the Sub-Divisional Officer arrived he was still in the same place and was actually taken to be a leader. Chittaranjan''s conduct gives some support to his plea that, though at the last moment, he did try to stop the riot; but in the case of Gadadhar there is nothing at all-to show that he did anything at the jail before the arrival of the Sub-Divisional Magistrate to stop the attack or that he even showed his disapproval of it. There is evidence that after the stone throwing had begun, he was seen standing behind one of the warders for shelter, but that circumstance does not indicate that he did not approve of the stoning of Government Officers or of the wrecking of Government buildings. The finding of both the lower courts is that while the stone throwing was going on he shared the common object of the unlawful assembly; he in fact wished that either Mogal Jan should be set free or that the warders should be compelled to open the jail gates. With these findings I agree and the petitioner''s conviction is in my opinion correct.

Mr. Gour Chandra Pal who appears before me on behalf of the petitioner while admitting that in view of the course adopted by his senior before the Divisional Bench, it is not open to him to argue that the conviction is incorrect, has referred to the evidence in order to show that the offence was at best a technical one and that it merits but a nominal sentence. At his request I have read through the whole record but I regret I cannot share his view.

The petitioner was a member of the mobs which gathered before the Pachamba Outpost, the Giridith Thana and the Court House. What was his object except to make the administration of the law impossible? Oh ! he says, "that was a technical offence; I may have been wrong but I never intended violence." But what about the 5,000 or 7,000 men who were assembled in the Court compound and most of whom were rough ignorant men? In my opinion it is an insult to petitioner''s education and intelligence to hold that he for a moment expected that they would be content with a mere demonstration or with a recital of the teachings of the Mahatma Gandhi The petitioner may not have had the courage to engage in violence himself but he wanted violence just as much as those who without any provocation whatever destroyed Government property and attacked Government servants in the execution of their duty.

I take into account the fact that the petitioner is a young man who had just entered the legal profession and that he is a person of some social position and fully-realising the ruin which a sentence of rigorous imprisonment will bring upon him, I feel the responsibility that rests upon me. But after the most careful consideration I have come to the conclusion that the petitioner''s guilt is certainly not less than that of those who were sentenced with him and that a mere fine will be a wholly inadequate punishment for an offence showing such complete and open contempt for law and order. It is no fault of his that the riot though sufficiently serious did not culminate in a catastrophe.

I think therefore that the sentence of one year''s rigorous imprisonment must be affirmed.

The only suggestion which I can make is that the petitioner should throw himself on the mercy of the local Government. Perhaps someday when satisfied that conditions in the locality have improved and that the petitioner''s assurances of future good conduct can be accepted, the Local Government will think fit to exercise the prerogative which the law confers. For the petitioner''s sake I think I may without impropriety venture to express the hope that that time may cane soon.