IBRAHIM MAHALDAR Vs. FATECHAND SARAOGI AND ORS.

JUDGEMENT

(1.) THIS is an appeal on behalf of the complainant against an order of acquittal passed by the Magistrate. The respondents were all prosecuted under Section 26 of the Northern India Ferries Act. The case set out in the complaint is that the complainant is the lessee of Kharupatia Bhuragaon Perry for five years from 1957 to 1982 at Rs. 57,500/ -. The complainant is the Mahaldar of the said ferry, Fatechand Saraogi respondent No. 1 is a businessman of Kharupatia and the other respondents are boat -men. The respondents other than Fatechand Saraogi were plying their boats in the prohibited area of the complainant's ferry. The case was instituted against them which was compromised. Thereafter the complainant states that they were plying their boats without paying the toils and without the permission of the Mahaldar within the Jurisdiction of the complainant's Kharupetia Bhuragaon. Parghat. On the date of occurrence they refused to pay the tolls for carrying goods in the private boats from the prohibited area. They plied their boats to the Steamer Ghat at a distance of two miles. The charge against the respondent No. 1 is that he instigated these persons not to pay the tolls and to carry his goods without payment of any tolls. The Magistrate acquitted all the respondents.

(2.) MR . Goswami who appears for the appellants, has strenuously contended that the notification has the force of law and it was the duty of the Magistrate to send for the notification End satisfy himself as to what was the actual limit of the ferry. We do not think that without the notification the Magistrate could have come to any correct conclusion as to whether the accused were plying their boats within the prohibited limits or not. If the prosecution had asked for time to produce the notification, the Magistrate in our opinion would have granted him time. But in the absence of any such request it cannot be said that the Magistrate has gone wrong in holding that in the absence of such a notification it was not possible to hold that the accused have plied their boats within the prohibited limits.

(3.) APART from that, we are also of opinion that no offence has been committed by the respondents under Section 26 of the Northern India Ferries Act (hereinafter called 'the Act'). Section 26 of the Act reads as follows: