# BASUDEV HAZRA v. MATIAR RAHAMAN MANDAL

- **Citation:** [1971] 3 S.C.R. 478
- **Court:** Supreme Court of India
- **Decided:** 1971-01-21
- **Case number:** Criminal Appeal No. 171 of 1968
- **Bench:** P. Jaganmohan Reddy, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/basudev-hazra-v-matiar-rahaman-mandal-5167
- **Pages:** 5

## Headnote

Bengal Ferries Act; 1886, s. 24--Scope of-If lessee in respect of tofls
cmt be penalised even where he levies toll when person does not usev ferry
but river-bed-Or when he levies charge in excess of prescribed rate.
The appellant was a leaseholder in respect of tolls of a public feay
crossing the river Damodar. The respondent filed a complaint against
him alleging that the appellant used to realise illegally 20 np per cart from
the ·cultivators who used to drive their carts across the dry bed of the river.
After hearing .of the respondent's complaint on November 29, 1964 the
appellant realised double the amount of toll from the respondent.
The
appella::it was therea'fter convicted for offences under sections 23 and 24
of the Bengal Ferries Act, 1885.
In revision, the Additional Ses..ions
Judge recommended acquittal of the appellant in respect of his conviction
under both the provisions. As to the conviction under s: 24, according to
the Additional Sessions Judge, the collection of money from the people
using the river bed and not the ferry might amount to extortion under the
Indian Penal Code but it would not attract the provisions of s. 24.
Although the High Court accepted the recommend.ation with respect to the
acquittal under s. 23, it rejected the reference in respect of the conviction
under s. 24.
In the appeal to this Court by special leave, it was contended that the
realisation of 40 np per cart from those who did not use the ferry could
not as a matter of law fall within the mischief of s. 24.
·
HELD : dismissing the appeal.
A
B
c
D
E.
Section 24 of the Bengal Ferries Act does not speak of taking toll in
excess of the lawful limit only from those persons who use the ferry. This
F
Act was enacted for regulating ferries but that does not mean that an illegai demand under the pretext of claim by way of toll under \his Act, when
it is not legally claimable, was not intended by the legislature to be pre>-
hibited and made punishable by the language of s. 24. Demanding or
receiving more than lawful dues and unduly delaying persons, ·animals,
vehicles or things in crossing the river are both rendered ,penal and punishable. Whether the person from whom the amount is demanded or received
G
is under no obligation to pay anything by way of toll while crossing the
river bed or is bound by law only to pay 20 ps per cart as toll would thus
be immaterial when payment is demanded or received on the pretext that
it is due as toll when it is· legally not so due. [181 C-Fl
To exclude cases like the present from the operatioμ of s. 24 would
unduly restrict its effectiveness aq!f would indeed facilitate. illegal recoveries
prohibited by it.
To~ that extent it would defeat the ob1ect and purpose
H
which this section is intended to achieve. [182 Al

## Text

478
BASUDEV HAZRA
v.
MATIAR RAHAMAN MANDAL
January 21, 1971
[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]
Bengal Ferries Act; 1886, s. 24--Scope of-If lessee in respect of tofls
cmt be penalised even where he levies toll when person does not usev ferry
but river-bed-Or when he levies charge in excess of prescribed rate.
The appellant was a leaseholder in respect of tolls of a public feay
crossing the river Damodar. The respondent filed a complaint against
him alleging that the appellant used to realise illegally 20 np per cart from
the ·cultivators who used to drive their carts across the dry bed of the river.
After hearing .of the respondent's complaint on November 29, 1964 the
appellant realised double the amount of toll from the respondent.
The
appella::it was therea'fter convicted for offences under sections 23 and 24
of the Bengal Ferries Act, 1885.
In revision, the Additional Ses..ions
Judge recommended acquittal of the appellant in respect of his conviction
under both the provisions. As to the conviction under s: 24, according to
the Additional Sessions Judge, the collection of money from the people
using the river bed and not the ferry might amount to extortion under the
Indian Penal Code but it would not attract the provisions of s. 24.
Although the High Court accepted the recommend.ation with respect to the
acquittal under s. 23, it rejected the reference in respect of the conviction
under s. 24.
In the appeal to this Court by special leave, it was contended that the
realisation of 40 np per cart from those who did not use the ferry could
not as a matter of law fall within the mischief of s. 24.
·
HELD : dismissing the appeal.
A
B
c
D
E.
Section 24 of the Bengal Ferries Act does not speak of taking toll in
excess of the lawful limit only from those persons who use the ferry. This
F
Act was enacted for regulating ferries but that does not mean that an illegai demand under the pretext of claim by way of toll under \his Act, when
it is not legally claimable, was not intended by the legislature to be pre>-
hibited and made punishable by the language of s. 24. Demanding or
receiving more than lawful dues and unduly delaying persons, ·animals,
vehicles or things in crossing the river are both rendered ,penal and punishable. Whether the person from whom the amount is demanded or received
G
is under no obligation to pay anything by way of toll while crossing the
river bed or is bound by law only to pay 20 ps per cart as toll would thus
be immaterial when payment is demanded or received on the pretext that
it is due as toll when it is· legally not so due. [181 C-Fl
To exclude cases like the present from the operatioμ of s. 24 would
unduly restrict its effectiveness aq!f would indeed facilitate. illegal recoveries
prohibited by it.
To~ that extent it would defeat the ob1ect and purpose
H
which this section is intended to achieve. [182 Al
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
171 of 1968.
••
A
B. HAZRA v. M. R. MANDAL (Dua, J.)
479
Appeal by special leave from the judgment and order dated
September 13, 1967 of the Calcutta High Court in Criminal
Refere,nce No. 36 of. 1967.
D. N. Mukherjee, for the appellant.
B
The respondent did not appear.
The Judgment of the Court was delivered by
Dua, J.
The appellant, Basudev Hazra, was a leaseholder in
respect of tolls of the public ferry at Sadar Ghat on the outskirts
of Burdwan town for crossing the river Daroodar. This lease was
for a period of three years (August 14, 1963 to August 13, 1966):
C
Ex. 2.
On November 30, 1964 Matiar Rahman Manda! filed a
complaint against the appellant in the court of the Sadar Sub-Divisional Officer (Judicial), Burdwan alleging that the appellant used
to realise illegally 20 nP. per cart from the cultivators who used
to drive their carts across the dry bed of the river. The matter was
reported to the S.D.0. who directed an enquiry.
This infuriated
D
the appellant. On November 29, 1964 the appellant realised double
the amount of toll and on protesl and refusal by the complainant
he was threatened with violence by the appellant.
The Magistrate trying the appellant for offences under ss. 23
and 24 of the Bengal Ferries Act, I of 1885 convincted him of
both the olfences. The appellant was sentenced to a fine of
E
Rs. I 0/- under s. 23 and to fine of Rs. 20/- under s. 24 : in default of payment of fine in the former- case he was to undergo simple imprisonment for ten days and in the lattei: for 20 days.
On the appellant challenging his conviction on revision in the
Court of the Sessioos Judge, the Additional Sessions Judge, BurdF
wan made a roference to the High Court recommending the appellant's acquittal. It was observed by the Additional Sessions Judge
in his reference that accordiing to the appellant's defence the complainant's party were in fact usin~ the landing stage and the path
constructed and repaired by him and, therefore, they were liable
to pay the usual toll tax_. After reproducing s. 24 he adaect :
G
H
" ... the complainant's case as it appears from the
petition of complaint and also from the evidence of the
rhree witnesses examined on the point, is that they do
not take advantage of any of the facilities provided by
the lessee and that the lessee demanded toll from them
even though they were using their own path. The defence as I have a~ady stated, was that the pathway and
the landing stage belonged to the lessee and that, therofore, he was entitled to collect toll. Forgetting the de~
fence for the moment, it seems to me that no conviction
480
SUPREME COURT REPORTS
[1971] 3 S.C.R
11/s 24 can be sustained on the case of the complainant
as it is."
According to him the collection of mol).ey from the people using
their own pathway might amount to extortion but it would not
attract s. 24. We need not refer to the recommendation with respect to the appellant's conviction under s. 23 as this was accepted
by the High Court and there is no appeal against acquittal under
that section.
The High Court accepted the recommendation with respect to
A
B
the conviction under s. 23 and acquitted the. appellant of
that
offence. In regard 'to the conviction under s. 24 the High Court
c
observed that the trial Magistrate had found (i) that the appellant
had .been realising toll charges in excess of the scheduled /rate of
20 ps. per cart and also realising such charges from persons who
did not use the ferry an~ (ii) that though the complainant had not
availed of the ferry and had taken the cart over the sandy bed of
the river 40 ps. per cart were realised from him. These findings
of fact were held not ope,n to re-examination on revision. The High
D
Court added that realisation of 40 ps. fell within the mischief of
s. 24 which forbids every lessee from realising more than lawful
toll even in cases in which he is entitled to demand ferry charges.
Repelling the argument that the present was a case of extortion
and itrdid not fall withi~ the purview of s. 24 the 8:igh Court, after
refem g to the c_omplamant's case, observed that 1t was a case of
E
illega' realisation of toll in excess, when the appellant was not
entitled to realise it at all and not a case of extortion under the_
Indian Penal Code. The amount had been illegally demanded as
a toll and that als_o in excess of permissible rate.
The reference
with rt>spect to s. 24 was, as observed earlier, rejected.
The appellant has secured special leave to appeal under Art.
136 of the Constitution and his counsel Mr. D. N. Mukherjee has
stremmsly contended that the realisation of 40 ps. per cart from
those who do not use the ferry can not as a matter of law fall within
the misdhief of s. 24 of the Bengal Ferries Act. His contention in
essence is that unless someone actually uses a ferry no charges
realised from him for permitting him to cross the river, even if
the demand is made by way of toll, can attract the provisions of
s. 24. The contention though prima facie somewhat attractive does
not stand scrutiny. Section 24 reads as under :
"Penalty for taking unauthorised tolls, and for causing delay:
Every such lessee or other person as aforesaid asking
or taking more than the lawful toll, or without due cause
F
G
H
A
B
c
D
B. HAZRA v. M, R. MANDAL (Dua,/.)
481
delaying any person, animal, vehicle or other thing,
shall be punished with tine which may extend to one hundred rupees."
It is obvious that this section does not speak. of taking toll in excess of the lawful limit only from those persons who use the ferry.
This Act was enacted f:Jr regulating ferries but that does not mean
that an illegal demand. μnder the pretext of ch1im by way of toll
under this Act when it is not legally claimable was not intended
by the legislature to be prohibited and made punishable by the
language of s. 24, Shri Mukherjee drew our attention to s. 5 of
the Act in which "ferry'' is defined to include a bridge of boats,
pontoons or rafts, a swing-bridge, a flying bridge, a temporary
bridge and a landing stage. According to him, t'his definition suggests that it is only when a ferry is used and excessive charges rea-.
lised that s. 24 would be attracted. l'he sublllission is difficult to
accept. This definition which is not exh;mstive does not seem to
us to control or otherwise to throw helpful light in the interpretation of s. 24. This section seems to have been designed in effect
to protect the persons crossing the river against harassment and
abuse of the privileged position which the lessee or other person
authorised to collect the tolls of a public ferry occupies under the
statute in the matter of control over the passage or pathway for
crossing, fording or ferrying across the river.
Demanding or receiving more than lawful dues and unduly delaying persons, aniE
mals, vehicles or things in crossing the river are both rendered
penal and punishable. Whether the person from whom the amount
is demanded or received is under no obligation to pay anythiilg
by way of toll while crossing the river bed or is bound by law only
to pay 20 ps. per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll
when it is legally not so due.
In either case s. 24 would seem
F to be altrackd : this construction would serve to suppress the mischief at which this section appears to be aimed.
The question
whether or not the appellant's case falls within !!he mischief of
extortion as defined under the Indian Penal Code is not strictly
relevant to the point arising in the controversy because if the apG
H
pellant's case is covered by s. 24 of the Act then he is liable to be
punished thereunder.
His liability to be prosecuted under the
Indian Penal Code cannot by itself in law exclude the applicability
of s. 24 to his case. The Additional Sessions Judge was, in our
opinion. not quite right in observing that the defence that the accused was entitled to claim the toll may be ignored, because defence of an accused {>Crson can legitimately he taken into consideration while assessing the value of the evidence and judging the
guilt or innocence of the accused. The Jppellanfs defence in this
case would clearly tend to support the complainant's case that the
amount received was demanded as toll which was an unlawful
SUPREME COURT REPORTS
[1971) 3 S.C.R.
.demand. To eX(:lude cases like the present from the operation of
s. 24 would unduly restrict its effectiveness and would indeed faci-
.litate illegal recoveries prohibited by it. . To that extent it would
.defeat the object and purpose wllich this section is intended to
achieve.
When the appellant's counsel took us through !be evidence we found that the appellant had also delayed the prosection
witnesses without due cause in crossing the river in violation of B.
A
B
24. It is, however, unnecessary to pursue this aspect. Finally it
may b~ pointed out that Art. 136 of the Constitution does not
confer a right of appeal on a part!y. It only confers a discretionary
power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from
'illegality or from misapprehension or mistake in reading evidence c
or frQm ignoring, excluding or illegally admitting material evidence.
The present case suffers from no such infirmity.
The appeal accordingly fails and is dismissed.
R.K.P.S.
Appeal dismissed.
L107 S.n ClfP)/ 71-2500-13-5· 72-GIPF.
J
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