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WIJESINHA v. BA BAH AMY.P. C.. Tatujalla, 15,665.
Unlawful assembly—Penal Code, s. 141—Party in possession <•/ land—Parlyattempting to turn out the party in possession—Right of parly in pos-session to assemble persons and prevent by force removal of crop.
A party in possession of a land has a right to prevent by force a partyattempting to oust him, or remote by force the crop raised by him.
Hence, persons assembled with deadly weapons to resist ouster, orprevent theremoval of – the crop, cannot be charged withbeing
"members of an unlawful assembly, under section 141 of the PenalCode.
HE accused in this case, twelve in number, were found guiltyunder section 141 of the Penal Code of being members of
an unlawful assembly,- armed with deadly weapons, and attempt-ing to enforce their supposed right to the produce of the chenain question. It appeared that the Assistant Government Agentof Tangalla had directed the Mudaliyar of East Giruwa pattuand a Forest Ranger to proceed to the land where the twelfthaccused was carrying on chena cultivation and seize the crop ofkurakkan there harvested as belonging to the Crown; that asthese officers were measuring the kurakkan with the consent ofthe cultivators, the second and twelfth accused bade the latter tocease measuring, as the land belonged to the twelfth accused;that they and the other accused came with guns and katties andthreatened the Government officers to kill them on the spotif they did not retire; and that in conseqence they had toretifte. It was claimed on behalf of the Government that thekurakkan attempted to be seized was grown by felling a Crownforest in the neighbourhood of lands belonging to some of theaccused.
The Magistrate found the twelfth accused to be the chiefclaimant, and the first-, second and twelfth to be the ringleadersof the unlawful assembly. He sentenced each of them to a fineof Rs. 50 and .ordered them to enter into a recognizance to keepthe peace for six months. The other accused were called upon toexecute similar Bonds.
Bawa, for appellants.—The charge does not specify the com-mon object, and there is no evidence that any of the accused,save the first, second, and twelfth accused, had common inten-tion. They had a right to defend the crop raised by them on aland which they claimed as their own. The Government officerswere the aggressors. They claimed a right to the land, but it
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has been held in India that where one party was in possessionand the other party was attempting to turn them out, the partyin possession was protected by section 104 of the Indian Code,corresponding to section 97 of our Code. (He Tulsi Singh, citedin Starling, p. 160). The action of the accused in the presentcase was lawful.
Our. adv. unit.
1st May, 1901. Moncrkiff, J.—
The accused in this case were charged in the Police Court ofTangalla with being members of an unlawful assembly within themeaning of section 141 of the Penal Code.
The first, second, and twelfth accused were, upon conviction,fined Bs. 50 each, and called upon to execute bonds for Bs. 100 tokeep the peace for six months, and in default of payment toundergo two months’ rigorous imprisonment.
The twelfth accused had in some way come into possession ofKolakahawala chena and put it into the hands of cultivators.That being so, the Forest Banger of the district discovered whathe calls a flaw in the claim of the accused, and “ identified ” theland. Certain discussions thereupon took place, and it was wellunderstood that the Assistant Government Agent claimed the landfor Government, while the accused stood upon his claim. TheForest Banger says that “ the Assistant Government Agent had“ himself held a careful inquiry on the spot, and had given them“ the chance of settling the matter.”
On the 29th January, 1901, the. Mudaliyar B. B. Wijesinha ,andthe Forest Banger repaired to the spot. They were accompaniedby the Village Arachchi of Paraganpalata. the Peace Officer olKudagalawa, and a Forest Guard. They were proceeding on theorder of the Assistant Government Agent to seize and divide thekurakkan, when they were interrupted by the accused. Thecultivators, who admitted they were put there by the accused,were assured by the Forest Banger that the land' belonged to theCrown, and made no objection, being satisfied no doubt so long asthey received their share of the produce.
The charge against the accused was that on this occasion (the29th January, 1901) they “ were members of an unlawful assem-” bly, armed with deadly weapons; and that they did by a show“ of criminal force attempt to enforce their supposed right to the“ produce of the chena ” (Criminal Procedure Code, section 141).
Mr. Bawa’s argument for the appellants seems to resolve itselfinto two points. He contended that both the charge and proofwere defective, because there was neither allegation nor proof ofthe common object of the assembly. I think the common object
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is sufficiently stated; that is, to enforce their supposed right tothe produce of the chena by a show of criminal force (PenalCode, 138 a). I think also that, subject to the point I am about tonotice, the charge was made out. Tt is true that, although theForest Banger disclaimed the intention of ordering the cultivatorsto measure or interfere with the produce of the chena. he statesthat he had gone to the spot, under orders, for the purpose ofseizing and dividing the kurakkan. But it appears to me that,if he and his party had not behaved with moderation, and if theMudaliyar with four or live other headmen had not quieted theaccused, a violent encounter would have taken place.
As to Mr. Bawa's second point, he referred to a passage inStarling's Indian Criminal Law (7th ed., 1897, p. 160), for thepurpose of showing that the action of the accused was lawful.
1 do not find that the authorities there cited are quite in point,but they seem to imply that, although persons may not lawfullyassemble to enforce a right or supposed right vi et armis, theymay do so to defend a right which they possess and enjoy. Thequestion then is—was the possession of the accused such as torender lawful their assembling to prevent the removal of theircrop by the Forest Banger?
The question of possession was not carefully regarded at thetrial. The Magistrate says he considered it irrelevant to inquirewhether the Crown or the accused is entitled to the land and crop.But I gather that, in some way and at some date undisclosed, thetwelfth accused came into possession of the chena and put it intothe .hands of cultivators. The cultivators raised a crop and wereengaged in reaping it when this incident occurred. Some timeago, however, but apparently after this accused had put cultivatorson the land, the Forest Ranger found a “ flaw ” in the claim andhe and those who were with him undoubtedly intended to take theowner's share of the produce, provided they were not preventedby the demonstration of the accused. I gather that from thecircumstances, and the accused were entitled to infer it becausethe Forest Ranger would say no more beforehand than that hehad his instructions. His instructions seem to have been to takethe owner’s share of the produce if the cultivators made noobjection—but the accused did not know that, and I can onlyconjecture.
The question, then, stands thus. The Forest Ranger knows thatthe twelfth accused is in possession of the chena. and. as appearson page 15 of the evidence, that his cultivators have raised a crop.He find, as he says, a flaw in the accused’s claim, and tells himso. He asserts in a vague way that the Assistant Government
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Agent gave the accused a chance of settling the matter, but hetakes no step until the crop is reaped, when he conies forward andshows an intention to carry off (with the consent- of the culti-vators) the owner’s share of th,e crop. Was the accused entitledto offer forcible resistance under such circumstances. He wasin possession, wrongfully it may possibly be. by his cultivators,who explained their position to the Forest Banger on the 29thJanuary. I think he must have known it before. He, the twelfthaccused, had been told that his claim was bad, and that the Crownclaimed the chena. The merits of the dispute are not before me.rTrnow nothing about them, and I am not to assume that thepossession of the twelfth accused was a mere encroachment, orthat the dispute was not bond fide. As the twelfth accused was inpossession, and there was a dispute,—bond fide for all I know,—Ithink that the accuseds were entitled to prevent by force theremoval of the crop, and that the conviction of the appellants wasbad and should be quashed.
WIJESINHA v. BABAHAMY