Jangli Mian and Others vs Emperor

Das, J.—The four petitioners have been found guilty u/s 7, Bihar Village Collective Responsibility Act, 1943. They were originally sentenced to a fine of Rs. 25 each, or in default simple imprisonment for a period of 15 days each. This sentence was reduced in appeal to a fine of Rs. 2 each, or in default simple imprisonment for a period of four days each. The application raises an important question of interpretation of the provisions of Section 5, Bihar Village Collective Responsibility Act, 1948, and the small fine imposed by the Court of appeal below is no indication of the importance of the question raised. The main contention which has been raised on behalf of the four petitioners is that they have not violated any direction given u/s 5(b) of the Act, and, therefore, they are not liable to punishment u/s 7 of the Act.

In order to appreciate the point raised on behalf of the petitioners it is necessary to state the facts very briefly. It appears that in December 1948 the Deputy Commissioner of Singhbhum had passed an order u/s 8, Bihar Village Collective Responsibility Act, 1948. By this order he had directed that the inhabitants of village Geoelkera Bazar shall be responsible for guarding and protecting from destruction, damage, interruption or obstruction the railway line and telegraphs and communications within the village and from mile post 214 to 215 of the B.N. railway main line. Section 8 of the Act empowers the District Magistrate by order to impose collective responsibility on the inhabitants of any particular area. This section merely imposes a collective responsibility on all the inhabitants of that area. By another order passed on the same date, u/s 4 of the Act, the Depty Commissioner of Singhbhum had appointed one Madhu Prasad as the headman for the aforesaid village. Then, on the same date, there is a third order by the Deputy Commissioner regarding the interpretation of which the parties have been at variance. This third order of the Deputy Commissioner purports to be an order u/s 5 of the Act. It reads as follows:

Under Section 5, Bihar Village Collective Responsibility Act, 1943, Madhu Prasad is required to provide 36 patrollers from the inhabitants of the above village for patrolling at night. One patrol is to consist of four men and one patrol is to be on duty at one time; the night patrolling is to be shared by three such patrols of four men each for 3 1/2 to 4 hours at a time.

The prosecution case is that in pursuance of the aforesaid order of the Deputy Commissioner the village headman Madhu Prasad had fixed a roster of duties to be performed by some of the members of the village patrol. Admittedly, the petitioners were members of the village patrol. They did not, however, perform the duties, as shown in the roster prepared by the village headman, on 25th June 1944, between the hours 11 P.M. and 2 A.M. It is admitted that the petitioners did perform the protective duties imposed on them according to a chart prepared by themselves, but not according to the roster of duties prepared by the village headman.

Therefore, the main question is if the petitioners are liable u/s 7 of the Act for failure to perform protective duties as required by the village headman. The contention on behalf of the petitioners is that they are liable u/s 7 of the Act, only if they violate a direction given u/s 5(b) of the Act. The District Magistrate not having given any direction u/s 5(b) of the Act regarding the respective duties of the members of the village patrol, the petitioners are not liable for punishment u/s 7 off the Act.

In my opinion, the contention raised on behalf of the petitioners is correct and should be accepted. Section 5(b) of the Act has to be read with Section 7. Section 7 clearly and specifically refers to a direction given under Clause (b) of Section 5. It is the failure to discharge any protective duty imposed by a direction u/s 5(b) which is made punishable u/s 7 of the Act. Section 5(b) reads as follows:

A village headman and the members of the village patrols provided by him shall perform such protective duties and other duties connected with protective duties and at such places and times and for such periods and subject to such supervision and control as the District Magistrate may direct.

It is clear that the expression "as the Distriot Magistrate may direct," controls the expressions which precede, namely, "such protective duties and other duties connected with protective duties and at such places and times and for such periods," etc. Section 5(b), as I read it, requires that the District Magistrate shall direct what protective duties or other connected duties the village headman or members of the village patrols will perform. The section further requires that the District Magistrate shall direct the places, times and periods at which or for which the duties shall be performed. The section, no doubt, gives the District Magistrate power to give directions as to supervision and control. Supervision and control do not, however, mean that the District Magistrate can delegate to another authority duties which have to be performed by him.

There is a separate provision, namely, Section 2(c) of the Act, which says that the expression "District Magistrate" in the Act includes "any officer whom the District Magistrate may authorise to discharge the functions of the District Magistrate under that provision." In the particular case under our consideration there is no order of authorisation by the District Magistrate by virtue of which, the village headman could perform the duties given to the District Magistrate by Section 5(b) of the Act.

I am, therefore, of the view that under the provisions of Section 5(b) of the Act, it was for the District Magistrate to fix the places, times, periods, etc., at which and during which the members of the village patrols were to perform their protective duties or other duties connected with protective duties. A direction given by a village headman without any authorisation by the District Magistrate will not be legally valid, and there is no provision in the Act which penalises the failure to carry out a direction given by the village headman.

Learned Counsel for the Crown has contended before us that the third order of the Deputy Commissioner, to which I have already made a reference above, should be construed as an order both under Clauses (a) and (b) of Section 5 of the Act. It is further contended that if so construed, the failure of the petitioners to comply with the direction given by the village headman would be tantamount to a failure to comply with the direction of the District Magistrate, and would, therefore, be punishable u/s 7 of the Act. The short answer to these contentions is that the third order of the Deputy Commissioner contains no direction to the village headman to fix the roster of duties for the members of the village patrol. The first part of this order of the Deputy Commissioner merely requires the village headman to provide 36 patrollers. Obviously, this part of the order is under Clause (a) of Section 5 of the Act. The second part of the order of the Deputy Commissioner no doubt mentions that one patrol is to consist of four men and the night patrolling is to be shared by three patrols of four men each for 3 1/2 to 4 hours at a time. This part of the order cannot, however, be stretched against the petitioners to mean that it authorises the village headman to fix the duties of the village patrol without any direction from the District Magistrate. I am unable to hold that the order of the District Magistrate referred to above, even if it should be construed as an order under Clause (b) of Section 5, gives the village headman the right to fix the places, times, periods, etc., at which protective duties have to be performed by the members of the village patrol. The net result, therefore, is that in this case there was no direction by the District Magistrate fixing the respective duties of the members of the village patrol. It follows, therefore, that the petitioners cannot be held liable u/s 7 of the Act.

It has been rightly pointed out by learned Counsel for the petitioners that to leave the fixing of duties to the village headman may be attended with great risk and danger to the inhabitants of a particular village. The village headman may have his own enemies in the village, and he may easily use his power to the disadvantage and inconvenience of his enemies. Section 5(b) of the Act clearly imposes on the District Magistrate the obligation of fixing the respective duties of the village headman as well as of the members of the village patrols. The District Magistrate may, no doubt, arrange for whatever supervision or control he considers necessary. But he must himself fix unless he legally authorises somebody else the respective duties of the village headman and the members of the village patrol, and he must also fix the places, times, periods, etc., as required by Clause (b) of Section 5 of the Act. This not having been done in the case under our consideration, one can hardly blame the villagers, if they performed their duties according to a chart prepared by themselves. I do not think the village headman can impose his own chart on the villagers without a direction from the District Magistrate as required by Clause (b) of Section 5 of the Act.

For the reasons given above, I would allow this application, and set aside the conviction and sentences passed against the petitioners. The fine, if paid, should be refunded to the petitioners.

Ray, J.

I agree.