Mr. H. Grant vs Emperor

This an application to quash proceedings u/s 150 of the Indian Penal Code, which have been instituted by the District Magistrate of Bhagalpore against Mr. Grant one of the proprietors of the Luttipore Concern. The application has been made on three grounds:

(1) that the proceedings are not bona fide, (2) that on the face of the charge sheet and on admitted facts the ingredients necessary for a prosecution u/s 150 of the Indian Penal Code are not present, and (13) that the charge sheet as submitted to the Magistrate is such that he could not, under the law, take cognizance.

It appears that in the Luttipore Zamindary there are a number of Diara villages which are subject to the action of the rive Ganges and, it is said, that under the terms of the kobuliyats which are taken by the proprietors from tenants, the arrangement is that the tenants do not pay rent on diluviated lands, the rights of tenancy are extinguished and when the lands reform (fee proprietors have an unrestricted right of settlement. Amongst these Diara villages is one named Sonbarsa. This village diluviated many years ago to the extent of some 400 bighas, which in the year 1918, reformed. There were apparently many applicants for settlement and when the settlement was made, it is said that the disappointed tenants began to create disturbances. The result was that proceedings u/s 107 were instituted and in the beginning of the year 1920, 19 persons were bound down to keep the peace for a year. This however, did not settle the matter and there were in the course of the next ten or eleven months, ten criminal proceedings, which seem to have ended in convictions. The proprietors, however, were not satisfied and they made several applications to the authorities for Police aid. These were not granted. Mr. H. Grant, thinking he was aggrieved, on the 20th of January engaged 40 Gurkhas from the Depot at Lucknow. This action, he says, was necessary for the protection of his properties, the persons of his servants and tenants and for maintaining possession. These Gurkhas same down from Lucknow and, on the morning of the 2nd February, 27 of them accompanied by tenants and Zemindary servants, crossed the river to the Diara for the purpose, it is said, of watching the crops. They were met, however, by a large body of persons, a fight ensued, twenty Gurkhas were killed and the remaining Gurkhas and the Zemindary servants fled.

Proceedings were started against both contending parties in respect of this occurrence and on the 14th February the proceedings, with which we are now concerned, was instituted by a formal first information made by the Sub-Inspector of the Thana in which the occurrence took place. This shortly is the history of the case and, in my opinion, the facts disclosed absolutely nothing which would indicate that prosecution is not perfectly bona fide one.

Next it has been contended by Mr. Manuk on behalf of the petitioner, that the charge sheet which was sent up after the investigation in this case, and the admitted facts do not contain the ingredients for a prosecution of Mr. H. Grant u/s 150 of the Indian Penal Code. With this contention I am unable to agree. It is clearly stated in the charge sheet that Mr. H. Grant engaged or hired the services of 40 Gurkhas from the Lucknow Depot who joined or became members of an unlawful assembly which led to the commission of offences under Sections 302, 148, and 379 of the Indian Penal Code, and that the charge against Mr. H. Grant u/s 150 of the Indian Penal Code has been proved and satisfactorily established by the witnesses who were named by the Police. This is clearly a charge u/s 150 of the Indian Penal Code. Mr. Manuk, however, contends that at the time this first information was submitted the Magistrate had before him another charge sheet, namely, the charge sheet in a case u/s 143 which had been sent up by the Police against some of the party with which it is said, the Gurkhas were at the time of occurrence on the 2nd of February, In the first information which was laid in that case the Gurkhas, who had not bean killed, were named as accused, but these Gurkhas were not sent up for trial as the case against them had not been satisfactorily established and Mr. Manuk contends that this being so, there is no substance in the case against Mr. H. Grant, because unless the Gurkhas are members of the unlawful assembly, he cannot be said to have engaged or hired the services of the Gurkhas from Lucknow to join or to become members of an unlawful assembly. He, further, contends that the unlawful assembly for which hiring is done must be an unlawful assembly formed or forming and that the circumstances of this case do not comply with this view of the law.

With regard to the first of these contentions, the mere facts, that the Police did not consider that the Gurkhas could be successfully prosecuted u/s 145, Indian Penal Code, by no means shows that they took no part in th]e occurrence. Moreover, 20 Gurkhas were killed and there is nothing to show what part they took in the occurrence. This contention, therefore, failed.

As to the second contention, its successor otherwise depends on the interpretation of Section 150 of the Indian Penal Code. The interpretation of this section is not free from difficulty and without having the whole facts before us, it is impossible to say whether they will constitute an offence under this section or not.

The last contention of Mr. Manuk is that on the charge sheet as submitted the Magistrate could not, under the law, take cognizance, because it does not show exactly what each of the witnesses named in the charge sheet will prove. I can find no provision of the law which requires that the Magistrate before taking cognizance should know exactly what each of the witnesses named in the charge sheet will prove; nor can I find any authority for such a proposition. The charge sheet alleges that a certain offence will be established by the evidence of certain witnesses and, in my opinion, this is sufficient to enable the Magistrate to take cognizance.

I would accordingly dismiss the application.

Ross, J.

I agree.