Dukhan Sahu vs Emperor on 20 August, 1937

Patna High Court
Dukhan Sahu vs Emperor on 20 August, 1937
Equivalent citations: 172 Ind Cas 168
Author: Rowland
Bench: Rowland


Rowland, J.

1. The Lohardaga Municipality obtained a money decree against Jhalu Sahu for arrears of Municipal taxes and a writ of attachment was issued by the Court against the goods of Jhalu supposed to be in Jhalu’s shop in Lohardaga. The peon went to the place indicated, accompanied by two employees of the Municipality who pointed out the shop and goods as being the property of Jhalu who was found present there. When the peon wished to attach the goods pointed out, the petitioner who is son of Jhalu said that the shop and the goods did not belong to Jhalu but to himself and he refused to permit the attachment to be made. The peon and the two employees of the Municipality have said that the petitioner threatened the peon with assault, thereby indicating that any further attempt to effect the attachment would be resisted by force. The peon gave up the attempt to execute the warrant on Dukhan, writing an endorsement on the writ to the effect that “The things are mine, I shall not allow them to be attached”. The peon then returned the write to Court reporting the reason why it could not be executed and the Munsif laid a complaint against the petitioner in pursuance of Section 195, Criminal Procedure Code, for his prosecution for an offence under Section 186, Indian Penal Code. The petitioner was convicted and the con-viction has been affirmed on appeal.

2. The findings of the Courts below as to what happened at the, shop are findings of fact. The prosecution case as above outlined has been accepted. Neither the Magistrate nor the Judicial Commissioner on appeal has come to a definite finding as to whether the shop and the goods in it are the property of Jhalu or of the petitioner. It is argued that in the absence of a finding that the goods are the property of the person whose property the peon was authorized to seize, it cannot be held that the peon was acting in. the discharge of his public functions or that the petitioner was committing any offence in preventing him from effecting the attachment. It was suggested also that the act of the petitioner did not amount to an obstruction because physical force was not proved to have been used. I do not find any substance in this point. There was sufficient indication that force would have been used if the peon had persisted and that to my mind is quite enough to constitute obstruction. The other point, however, requires mare examination.

3. Mr. R.S. Chattarji for the petitioner has drawn my attention to a number of decisions in which convictions under Section 186 or similar sections have been set aside. These cases, the Advocate-General would explain as being cases in which either the warrant is bad or the instructions in the warrant are exceeding. He contends that where the warrant is a lawful warrant and the public Servant is acting within the instructions contained in the warrant, he is a public servant in the discharge of his public functions and resistance to him is criminal. If, however, he exceeds his instructions he has been in some cases regarded as not engaged in the discharge of his public functions, and in. such cases, it has been held that resistance to him is not an offence. There is a class of cases also where the authority under which a public servant is acting is found on examination not to extend to the doing of the act on which he was engaged. Here obstruction or resistance is not itself an offence but if the public servant at the time in good faith believed himself to be within his authority and was acting in good faith under colour of his officer though the act he did, may not be strictly justified by the law, then Section 99 gives him this much protection that there is no right of private defence against his act and a person who not only resists him but further commits an assault or causes hurt to him can be punished for so doing.

4. The class of cases in which warrants were found defective can be illustrated from Jogenra Nath v. Hiralal Chandra 51 C 902 : 83 Ind. Cas. 481 : AIR 1924 Cal. 959 : 26 Cr.LJ 2 : 39 CLT 452, similarly Emperor. v. Tohfa 55 A 985 : 146 Ind. Cas. 183 : (1933) ALJ 952 : AIR 1933 All. 759 : 6 RA 272 : 34 Cr.LJ 1211 : (1933) Cr. Cas. 1324, and Badri Gope v. Emperor 7 PLT 30 : 93 Ind. Cas. 146 : AIR 1926 Pat. 237 : 27 Cr.LJ 418 : 5 Pat 216. Then again cases in which the warrant was in order but the officer executing it went beyond the instructions and the authority by doing something that the warrant had not directed him to do, may be found in Chepa Mahton v. Emperor 11 PLT 31 : 113 Ind. Cas. 578 : AIR 1928 Pat. 550 : 30 Cr.LJ 175, and Nagarmal Marwari v. Emperor 11 Pat 493 : 139 Ind. Cas. 834 : AIR 1932 Pat 279 : (1932) Cr. Cas 723 : 33 Cr.LJ 883 : 13 PLT 689 : Ind. Rul. (1932) Pat. 257. In the former of these cases an officer had been entrusted with the execution of a search warrant directing him to search in a particular place. The officer in fact searched in other places and it was held that resistance to him and escape from his custody was not an offence. In Nagarmal Marwari v. Emperor 11 Pat 493 : 139 Ind. Cas. 834 : AIR 1932 Pat 279 : (1932) Cr. Cas 723 : 33 Cr.LJ 883 : 13 PLT 689 : Ind. Rul. (1932) Pat. 257, the warrant was a Civil Court attachment and the property of the judgment-debtor was found to have been placed in godown belonging to a third party. The bailiffs sealed the whole of that godown which contained not only goods belonging to the judgment-debtor but the property of other persons. It was held that resistance to him was not an offence because they had exceeded what they had been directed by the warrant to do. Where, however, the warrant is in order and the officer does not go beyond fulfilment of the instructions given to him in the writ, then a resistance to the public servant is the offence punishable under the section that we are considering. It was so held in Birdhi Chand Jaipuria v. Darbari Jayaswal 13 PLT 480 : 142 Ind. Cas. 144 : AIR 1932 Pat. 276 : 34 Cr.LJ 263 : Ind. Rul. (1933) Pat. 122. Courtney-Terrell, C.J. said in that decision that:

If a public officer does no more than act upon the official instructions he has received and if those official instructions are not of such a kind as to be obviously and patently illegal, then he acts properly in carrying out such orders and resistance to a public officer carrying out orders which upon the face of them are not open to objection and are in proper form is an offence against the statute.

5. The trial Court in that case had passed an order of acquittal and his Lordship observed as regards the trial Court’s duty:

He should have treated the argument very summarily and merely looked at the warrant of attachment and seen whether the officer was doing something which was not contained in the writ of attachment which would have justified reasonable resistance.

6. In Special Bench case in Ram Singh v. Emperor 16 PLT 295 : 155 Ind. Cas. 421 : AIR 1935 Pat. 214 : (1935) Cr. Cas. 577 : 36 Cr.LJ 714 : 7 RP 580 (S.B.), the, facts were somewhat similar but unfortunately the decision is not directly in point on the question whether a conviction under Section 186 can be had because in the particular case it was found that there had been no complaint of the offence under a. 186, which was necessary under Section 195, Criminal Procedure Code, before cognizance could be taken of, of the offence. But there was also a conviction senders. 353, Indian Penal Code, and the question whether the public servant concerned was acting in the discharge of his public functions was examined. Apparently the warrant was for attachment of property of one Dhanukdhari Singh and the Chaukidar who went as identifier, pointed out certain cattle as the property of Dhanukdhari. At a later stage it was said that the property was not Dhanuk-dhari’s own property but the joint family property of himself and others and ought not to have been and could not be attached. What the Court said was:

When an officer is entrusted with a warrant to attach the property of certain persons, his first duty is to ascertain by all means possible what property belongs to that person which is liable to be attached. Having satisfied himself that certain property belongs to that individual, it is his duty to attach that property unless some objection is raised which raises in his mind a reasonable doubt that the property does not belong to the person against whom the warrant has been issued.

7. In the present case, it is true that Dukhan did at the time prefer the objection that the property sought to be attached was his own but the peon had the statements of two Municipal employees that the shop was Jhalu’s and the peon in fact found Jhalu present at the shop. I do not feel any doubt that the peon in good faith regarded the property as that of Jhalu and it was, therefore, his duty to make the attachment and the petitioner in obstructing him from doing so committed the offence of which the Courts below have found him guilty. I would, therefore, dismiss the application and discharge the Rule.

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