1. The petitioners have been convicted under Sections 225B and 353, Penal Code, and sentenced to undergo rigorous imprisonment for six months each under Section 225B; no separate sentence has been passed under Section 353. The petitioner Anand Ballabh was a certificate-debtor in a certificate case. On 15-8-1951, the Nazir of Patna Collectorate, Chandra Sekhar Missir (P.W 1), accompanied by two peons, Moharnmad Maqbool (P.W 2) and Keshwar Prasad (P.W 4), went to him with a writ of attachment and also a warrant of arrest in connection with, the said certificate case. According to the prosecution, these persons reached the house of the petitioner Anand Ballabh at Belwarganj, near the Patna City Court, at 6.30 A.M, and showed and explained to him the processes which were also read by him. On his refusal to pay the-amount, mentioned in the warrant the Nazir asked the peons to arrest Anand Ballabh, and he was arrested. Anand Ballabh is then said to have sent for the other petitioner Yadvendra Ballabh, who is also known as Lakhi Babu. Lakhi Babu immediately arrived at the spot, and, as asked by Anand Ballabh, he assaulted the Nazir and the two peons. P.W 4 Keshwar Prasad was given a lathi blow, the badge of the other peon was snatched away, and the Nazir was pushed down. Anand Ballabh is said to have thus rescued himself from the custody of the peons; and he fled inside his house. The matter was reported to P.W 3 Mr. J.P Singh, Nazarat Deputy Collector, and, on his report the District Magistrate directed filing of a complaint.

2. The defence of the petitioners was that the whole prosecution case was a concoction, and that the petitioners had been falsely implicated. According to the defence, there was no occurrence of any kind. The validity of the processes was also challenged.

3. The court below, accepting the prosecution case and rejecting the defence of the petitioners, has affirmed the conviction and the sentence as passed by the trial court.

4. The points urged in this Court are:

1. That no notice having been served under Section 7 of the Bihar and Orissa Public Demands Recovery Act (4 of 1914), the issue of the warrant of arrest or of the attachment of property in execution of the certificate was without jurisdiction;

2. That no subsistence allowance having been deposited in court, the arrest of the petitioner Anand Ballabh in execution of the certificate was illegal and without jurisdiction, and

3. That the prosecution has failed to prove its case, and the court below has committed a grave error in holding that the prosecution version has been proved.

5. It appears that the certificate case was filed by the Collector of Gaya, and it was sent to the Collector of Patna for execution. Section 14 of the Bihar and Orissa Public Demands Recovery Act, (hereinafter to be referred as the Act) lays down that no step in execution of a certificate shall be taken until the period of thirty days has elapsed since the date of the service of the notice required by Sections 7 and 11, or, when a petition has been duly filed under Section 9, until such petition has been heard and determined. Section 7 requires a notice to be served upon the certificate-debtor in the prescribed manner. According to the prescribed manner, the notice under Section 7 is to be served upon the certificate-debtor intimating to him that a certificate for the realisation of the amount of money has been filed in the office of the Certificate Officer concerned, and that if the certificate-debtor denies liability, he should file an application within thirty days from the date of service of that notice denying his liability in whole or in part; and if he does not do so, or does not show sufficient cause why such certificate should not be executed, the certificate shall be executed under the provisions of the Act.

6. It prohibits alienation of immovable property or any part of it by sale, gift or otherwise. This notice under S. 7 of the Act gives jurisdiction to the Certificate Officer to execute the certificate. The proviso to S. 13, which refers to the transmission of certificate to any other Certificate Officer or to the Collector of any other district, lays down that it shall not be necessary to serve a second notice and copy under S. 7, that is to say, if once a notice under S. 7 has been served no other notice under that section is required to be served in case a certificate is transferred for execution to some other district.

7. The question in this case is whether a notice under S. 7, as required by law, had been served upon the certificate-debtor Anand Ballabh or not. The prosecution did not file any report of the peon showing service of notice under S. 7 or any order sheet mentioning the same fact. The learned Judge in the court below, however, says:

“The forwarding letter attached to the non-satisfaction decree in respect of the certificate clearly mentioned that notice under S. 7 had already been served and that no objection was filed within the time limit. I, therefore, find that it was not necessary to issue a fresh notice under S. 7.”

8. The forwarding letter spoken of by the learned Judge is also not on the record of this case, and, even if it were there, it could not have possibly proved the service of notice under S. 7 as the forwarding letter could not be substituted for the primary or secondary evidence of the service of notice under that section. In my opinion, there is no material on the record to hold that a notice under S. 7 had already been served upon the certificate-debtor.

9. The other question which arises is whether in a proceeding for prosecution for escaping from lawful custody the burden was upon the prosecution to show that a notice under S. 7 had been served, or whether the burden was upon the defence to show that the notice under S. 7 had not been served. As the notice is the starting point of jurisdiction of the executing officer, the non-service of notice under that section would take away the entire jurisdiction of the officer to execute the certificate. As this point was not taken specifically in the written statement, it may be that the prosecution did not bring on record any material to show that the notice under S. 7 had in fact been served. That may be so, but in my judgment, in a case like this it is for the prosecution to show that the court or the officer concerned, who issued the warrant of arrest, had the jurisdiction to do so and it is not for the defence to prove the negative. In the absence of any material on record, I must hold that it has not been proved in this case that a notice under S. 7 of the Act had been served upon the certificate-debtor Anand Ballabh.

10. The second contention on behalf of the petitioners also appears to be not without force. Section 47 of the Act runs as follows:

“The rules in Schedule II shall have effect as if enacted in the body of this Act, until altered or annulled in accordance with the provisions of this part.”

11. Rule 54(1) of Schedule II runs as follows:

“When a certificate has been signed either in accordance with the provisions of section 4, or on a requisition made under section 5, no certificate-debtor shall be arrested in execution of the certificate unless and until the certificate-holder pays into court such sum as the Certificate officer thinks sufficient for the subsistence of the certificate-debtor from the time of his arrest until he can be brought before the Certificate-officer.”

12. Section 4 of the Act says that when the certificate-officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed form, stating that the demand is due and shall cause the certificate to be filed in his office. Section 5 refers to public demand payable to any person other than the Collector. ‘Certificate-holder’ means the Government or person in whose favour a certificate has been filed under this Act, and includes any person whose name is substituted or added as creditor by the Certificate-officer. It is clear, therefore, that, in the present case, without deposit of the subsistence allowance into court, the certificate-debtor could not have been, in law, arrested.

13. The learned Judge in the court below has disposed of this point in the following manner:

“no objection on this score has been specifically taken in the grounds of appeal. Moreover, in my opinion, the non-compliance with the provision (of) rule 54 would be at best an irregularity and it would not affect the legality of warrant of arrest.”

14. I, however, do not take the same view as the learned Judge has taken. Rule 54 specifically says that

“no certificate-debtor shall be arrested in execution of the certificate unless and until the certificate-holder pays into court….for the subsistence of the certificate-debtor……….”

15. The Certificate-Officer had issued a warrant of arrest against the certificate-debtor, and, in my judgment, he should have known that rule 54, which had the effect like any other rule as if it was enacted in the body of this Act, in clearest possible terms, prohibited the arrest of the certificate-debtor until and unless subsistence allowance for him had been deposited in court. If no certificate-debtor could be arrested without his subsistence allowance having been deposited in court, the arrest of the petitioner Anand Ballabh in pursuance of the warrant of arrest was, in my opinion, unwarranted & without jurisdiction; and it was not a mere irregularity as the learned Judge in the court below has said. The procedure prescribed for the issue of warrant of arrest must the strictly construed as it affects the liberty of the subject. There being no material on the record to show that subsistence allowance had in fact been deposited in court, the arrest of the certificate-debtor Anand Ballabh was, in my opinion illegal. The Legislature was quite precise in using the language which it did in R. 54, and I hold that it was mandatory for the certificate-holder to deposit the subsistence allowance for the certificate-debtor before he could be arrested.

16. Reliance has been placed in this Court, as was done in the court below, on the case of — ‘Puna Mahton v. King-Emperor*’, AIR 1932 Pat 315 (A), and the court below was of the opinion that this case was on all fours with the present one. That was a case in which, under O. 21, R. 37 of the CPC, the Court had issued a warrant of arrest as also a notice calling upon the judgment-debtor to appear before the court on the date specified in the notice and to show cause why he should not be committed to civil prison. Under O. 21, R. 37, it was discretionary with the court either to issue a warrant of arrest or to issue a notice calling upon the judgment-debtor to show cause why he should not be committed to the civil prison. The judgment itself recites that it was not contended in that case that the court had no jurisdiction to issue a warrant of arrest and it is not contended that the warrant of arrest was defective in form; nor that peons in executing the warrant did anything more than the duties imposed upon them by the warrant, nor that they acted otherwise than in good faith.”

17. That case, therefore, upon the judgment itself, was not a case where there was initial want of jurisdiction or at least that was not the contention. At another place the judgment makes the following observation:

“The duty of an officer who goes to carry out the orders of the court is limited to seeing that the orders are, on the face of them, within the power of the court and that they exhibit no defect in form.”

18. In my opinion, this case is distinguishable on the ground that there was no contention that the warrant had been issued by a court which had no jurisdiction to issue the same. Section 99, Penal Code, which was brought in aid by the learned Counsel and which had been referred to in the abovementioned case, speaks of absence of right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, “though that act may not be strictly justifiable by law.” The words underlined by me, (here in “???”) in my opinion, do indicate that if there is some irregularity in the exercise of jurisdiction by the public servant, then there is no right of private defence if he is acting in good faith under colour of his office. The words ‘strictly justifiable by law’ show that the section does not contemplate a case of initial want of jurisdiction. If there was no jurisdiction to issue the warrant of arrest or to make arrest, S. 99, Penal Code, cannot be of any help to the public servant. If any authority is needed, it is amply provided in the case of — ‘Bisu Haidar v. Probhat Chunder, 6 Cal L.J 127 (B). Referring to Mr. Mayne's Commentary on Criminal Law, S. 225, their Lordships made the following observation:

“In Mr. Mayne's Commentary on Criminal Law, section 225, it is stated that the words ‘not strictly justifiable by law’ seem to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction, to cases where the official has done wrongly what he might have done rightly, not to cases where the act could not possibly have been done rightly.”

19. In my opinion, in the absence of proof of notice under S. 7 of the Act as also in the absence of any proof, under R. 54, Sch. II, that subsistence allowance for the certificate-debtor had been deposited in court, the issue of the warrant of arrest and the arrest were without jurisdiction. It cannot be emphasised too strongly that in these matters the procedure laid down for the arrest of a certificate-debtor must be strictly and carefully observed. The liberty of the subject must not be trifled with, and every certificate-debtor has a right to require that the court ordering his arrest should observe to the letter the law as laid down in the Act.

20. The third point involves consideration of facts. Usually the High Court is averse to consider question of facts upon an application in revision, but, in suitable cases, it is not only right but it is the duty of the Court, if the ends of justice require, to go into facts. The defence case is that the whole thing is a concoction, and there was no such occurrence. The defence, however, has adduced no evidence, and it was not bound to do so; but they are certainly entitled to submit that the present prosecution case should be judged by the same standard as is employed in judging other prosecution cases in which public servants are not involved. The learned Judge was entitled to hold that there was no delay in filing the complaint after orders were given by the District Magistrate of Patna although the complaint could have been filed within a few minutes of the occurrence as the Sub-divisional Officer's court was close to the place of occurrence. I cannot possibly interfere with the view the court below has taken in this regard, but there are other matters which do require a more serious consideration than has been given by the court below. (His Lordship considered the evidence and proceeded). On the whole, I am of the opinion that the prosecution case has not been proved beyond reasonable doubt. In the circumstances, I must allow the application, set aside the conviction and sentence of the petitioners and acquit them of the charges levelled against them.

B/R.G.D

21. Application allowed.