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  • Mohamad Noor
  • Rowland, JJ.
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  • Mohamad Noor
  • Rowland, JJ.
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Smart Summary

Structured Summary of the Opinion — Mohamad Noor, J.

Factual and Procedural Background

The petitioners were tried before a First Class Magistrate at Gaya and convicted under Section 143, Indian Penal Code (I.P.C.), and also under Section 342, I.P.C. For the Section 143 conviction the trial court sentenced each petitioner to three months' rigorous imprisonment and a fine of Rs. 15, with a further one month's rigorous imprisonment in default of payment of the fine; no separate sentence was imposed for the Section 342 conviction. On appeal the Sessions Judge upheld the conviction under Section 143 and the sentences but set aside the conviction under Section 342. The proceedings were thereafter referred to a Division Bench of this Court because a question of law was considered to arise.

The prosecution's factual case, as stated in the opinion, was that four warrants of attachment were taken out by landlords against the judgment-debtors; on 9 November 1937 four Civil Court peons and two landlords' men attached about 30 head of cattle belonging to the judgment-debtors. While further attachment was in progress, the petitioners (constituting a majority of the judgment-debtors), with others and armed with lathis, rescued the cattle, chased the two landlords' men and the identifiers until those persons took shelter in their kachahri. It was alleged that the mob chained the kachahri door from outside and restrained the peons for some time. A person named Dalip Narain Singh later arrived, reasoned with the mob, and two identifiers (Somnarain Singh and Bansidhar Narain Singh) were permitted to leave the kachahri. The learned Magistrate found the occurrence proved and convicted; the Sessions Judge accepted the main occurrence but disbelieved the shutting up of the identifiers in the kachahri and accordingly set aside conviction under Section 342.

Legal Issues Presented

  1. Whether prosecution and conviction for offences (such as unlawful assembly, rioting or other cognate offences) committed in the course of resisting execution of court processes require the prior sanction of the civil court which issued the warrants, and whether absence of such sanction renders the prosecution or conviction illegal.
  2. Whether the fact that the Civil Court which issued the warrant of attachment took no steps on the report of the peons permits an inference that the peons' report did not disclose any offence and therefore the criminal case is false.

Arguments of the Parties

Petitioners' Arguments

  • Main contention: The prosecution required the sanction of the Civil Court which issued the warrants of attachment and, in the absence of such sanction, the prosecution and resulting conviction were illegal.
  • Related contention: Once an unlawful assembly formed with the object of resisting execution of a writ actually offers resistance, the members cannot be prosecuted even for the offence of unlawful assembly or rioting without the sanction of the issuing Court.
  • Second distinct contention: Because the Civil Court which issued the warrants reportedly took no steps based on the peons' report, it should be inferred that the peons' report did not disclose the commission of any offence and that the criminal case is therefore false.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
47 All 114 Authority involving a conviction under Section 173 (an offence said to require sanction) where no sanction existed; the decision emphasized that taking cognizance of an offence requiring sanction without such sanction was impermissible. The Court found the cited judgment inapplicable to the present facts: it did not support petitioners' contention because it concerned a direct conviction under an offence that required sanction (and the magistrate's attempt to evade Section 195 Cr PC), whereas the present case involved distinct offences some of which do not require sanction.
55 Mad 343 Case where a private complaint was held to disclose an offence (Section 193) that required sanction; conviction was set aside for want of sanction. The Court observed that this decision was not analogous: in that case the very offence for which the accused were convicted was one requiring sanction. Here, by contrast, the offences prosecuted (e.g., unlawful assembly/rioting) were independent offences not necessarily requiring the sanction of the civil court that issued the warrant.
31 Mad 433 Decision addressing a similar argument — that prosecution of offences arising during execution of court processes required prior sanction — and holding that a distinct offence (hurt under Section 323) could be proceeded with notwithstanding absence of sanction for the related process-resistance. The Court cited this case to support the view that when an independent offence (e.g., hurt) is committed in the course of resisting process, lack of sanction for the process-related offence does not bar prosecution for the independent offence that does not require sanction.
AIR 1924 All 2964 (Stuart, J.) Principle that when a complainant combines a complaint which requires sanction under Section 195 of the Criminal Procedure Code with a complaint which does not require sanction, the court should investigate the latter while refusing to entertain the former. The Court relied on this observation to support the position that the Magistrate and police are competent to take cognizance and proceed with offences that do not require sanction even if, in the same incident, some other offences would require sanction.

Court's Reasoning and Analysis

The Court examined the petitioners' central contention that prosecution required sanction from the Civil Court which issued the warrants. It found no authority supporting the general proposition that absence of sanction for one offence (the one connected to the execution of civil process) prevents prosecution for other independent offences committed in the same transaction that do not require sanction.

The Court analysed the statutory and doctrinal distinctions among related offences using the facts of the case as illustrations:

  • An assemblage of five or more persons with the common object of resisting by force or show of force the execution of legal processes constitutes an unlawful assembly (liable under Section 143) whether or not resistance is actually offered.
  • If force is used by any member of such an assembly, the participants may be liable under Section 147 (rioting).
  • If actual resistance to process is offered, a separate offence of resisting the process of law, punishable under Section 186, may be committed.
  • These are distinct offences: membership of an unlawful assembly and resisting process are separate offences even if they occur in the same sequence of events.

Relying on these distinctions, the Court held that the legal requirement of sanction is offence-specific: where the law requires sanction for prosecution of a particular offence, that sanction must be obtained to prosecute that specific offence; but this requirement does not extend to other, independent offences that arise in the same transaction and do not themselves require sanction. The opinion stressed that it would be impermissible to construe the sanction requirement so broadly as to render magistracy or police powerless to proceed against those offences not covered by the sanction requirement.

The Court considered the authorities cited by petitioners and concluded they were either inapposite (47 All 114 and 55 Mad 343) or supportive of the opposite view (31 Mad 433 and AIR 1924 All 2964). The Court further illustrated the unworkability of petitioners' position by example: if an offender resisting process commits murder or similar offences, it would be absurd to hold that police or magistracy cannot take cognizance of those offences simply because they occurred while resisting court process.

Addressing the second contention (that the Civil Court's inaction upon the peons' report implied the report disclosed no offence), the Court noted that the report was not before it. The petitioners could have asked the trial Magistrate to call for the reports and confront the peons with them, but they did not do so. The Court rejected the inference urged by petitioners for two reasons: (1) it is not permissible to presume the peons' evidence in court was inconsistent with their reports when the reports were not produced; (2) the omission of the Civil Court or its officer (the Munsif) to take steps under Section 476 CrPC does not bar the complainant from seeking criminal redress for offences that do not require the Civil Court's sanction. The Court observed that the Civil Court, on being apprised of criminal proceedings, may have refrained from action for reasons not before the Court (for example, thinking the criminal offence did not require its sanction).

Finally, the Court addressed the contention that the sentence was excessive and rejected it. The Court characterised defiance of processes of law as a serious offence that harms the administration of justice and is rightly punished; given how the offence was committed, the Court found the sentence adequate and arguably lenient.

Holding and Implications

Holding: The application was rejected. The petitioners are ordered to surrender to their bail and serve out the unexpired portion of their sentences.

Implications:

  • Direct effect: The conviction under Section 143, I.P.C., and the sentences as maintained by the Sessions Judge stand; the petitioners must complete the unexpired portions of their sentences.
  • On legal principle: The Court affirmed that prosecution for offences which do not require prior sanction may proceed even if, during the same transaction, other offences are committed that would require sanction. The absence of action by the Civil Court on its peons' report does not automatically render the criminal case false; evidential documents not placed before the criminal court cannot be the basis for such a presumption.
  • No new precedent was announced beyond the reasoning applied to the facts; the decision applies the cited authorities to reject the petitioners' contentions and uphold the Magistrate's conviction and sentence as sustained by the Sessions Judge (subject to the setting aside of the Section 342 conviction by the Sessions Judge as noted in the factual summary).

Order recorded in the opinion: "Application rejected." The opinion records concurrence by Rowland, J., and the formal notation "10. Application rejected."

Show full summary ...

    Sheo Ahir And Others v. Emperor

    Mohamad Noor, J.:— The petitioners were convicted by a First Class Magistrate of Gaya under Sec. 143, I.P.C, and were sentenced to three months' rigorous imprisonment and a fine of Rs. 15 each; in default of payment of fine they were to undergo another one month's rigorous imprisonment. They were also convicted under S. 342, I.P.C, but no separate sentence was passed in respect of this offence. On appeal the learned Sessions Judge has upheld the conviction under S. 143, I.P.C, has maintained the sentences but has set aside the conviction under S. 342, I.P.C

    2. The prosecution case shortly stated is that the landlords of the petitioners who had obtained four decrees against them, took out four warrants for attachment of their moveable properties. The petitioners formed the majority of the judgment-debtors. On 9th November 1937, four Civil Court peons along with two landlords' men went to the village to effect the attachment. They attached about 30 head of cattle of the judgment-debtors and were proceeding to attach more when the petitioners along with others came armed with lathis, rescued the cattle and chased the two land, lords' men, the identifiers, till they took shelter in their kachahri. It was alleged that the mob chained the door of the kachahri from outside and also restrained the peons for some time. One Dalip Narain Singh heard about the occurrence, came to the village, reasoned with the mob and then the two identifiers, Somnarain Singh and Bansidhar Narain Singh, were allowed to come out of the kachahri. The learned Magistrate found the occurrence to be entirely proved and convicted and sentenced the petitioners as stated above. The learned Sessions Judge, though he held the main occurrence to be true, has not believed the shutting up of the identifiers in the kachahri, and therefore has set aside the conviction under S. 342, I.P.C The case was at first placed before a learned Judge of this Court, who, thinking that a question of law arose which required consideration, has referred the case to a Division Bench.

    3. The main argument of the learned advocate for the petitioners is that the case required sanction of the Court which issued the warrants of attachment, and without the sanction the prosecution and the conviction were illegal. I find no authority in support of the proposition urged by the learned advocate. If there is an assemblage of five or more men with the common object of resisting by force or show of force the execution of processes of law every one of them is guilty of being a member of an unlawful assembly whether resistance is offered or not. If force is used by any member of the assembly, each one of them becomes liable for rioting under Sec. 147. But if actual resistance is offered, a separate offence of resistance of the process of law punishable under Sec. 186, I.P.C, is committed. Being member of an unlawful assembly and resisting the process of law are two separate offences though they may be committed in the course of the same transaction. If in course of one transaction a number of offences are committed some requiring sanction for prosecution of some authority or the other and others not requiring such sanction, it is not necessary that the prosecution of those offences which do not require such sanction should depend upon the obtaining of the sanction for prosecution for those offences which required such sanction. The law requires that for the prosecution of a particular offence sanction of the Court should be obtained; but it does not say that if in course of the commission of an offence, which requires sanction for prosecution other offences are committed, the magistracy or the police are helpless in proceeding to prosecute the offender for these latter offences, unless the Court sanctions the prosecution of the former. Take, for instance, a case in which in the course of resistance of process of law the offender commits murder or other cognate offences, can it be said that the police or the magistracy are incompetent to take cognizance of these offences, simply because they were committed while resisting the process of law?

    4. The learned advocate for the petitioners has argued that as long as there is an unlawful assembly with the object of resisting by force the execution of a writ but no resistance is offered, the police or the magistracy is competent to prosecute the members of the assembly for being members of an unlawful assembly, but once the members of the assembly do actually resist the writ of the Court, the offenders cannot be prosecuted even for the offence of the unlawful assembly or rioting without the sanction of the Court. The argument is untenable and the learned advocate has not been able to place before us any authority in support of his contention. He relied upon the decision in 47 All 114.1 The judgment of the Court is a very short one and commences at about the middle of p. 117 and ends at the top of p. 118. It has absolutely no application to the facts of this case and does not in the least support the contention of the learned advocate. In this case the conviction of the accused was under S. 173, I.P.C This is one of those Sections for which sanction is necessary before a Magistrate can take cognizance of it. There was however no sanction. The learned Magistrate who convicted the accused in his explanation, stated that he took cognizance not of the offence punishable under S. 173, I.P.C, but one punishable under S. 225-B, I.P.C, and having once taken cognizance, he punished the offender under Sec. 173, I.P.C His point of view seems to have been that the prohibition of the law was against taking cognizance and not against conviction. The learned Judge of the Allahabad High Court pointed out that this was not permissible and no device could be adopted to evade the clear words of Section 195 of the Cr PC. It is clear that this case has absolutely no application.

    5. We have found a case, 55 Mad 343,2 which at first sight may appear to support the contention of the learned advocate, but in fact it does not. There a private party complained before a Magistrate of an offence which was obviously punishable under S. 193, I.P.C, but he showed the offence to come within Secs. 467 and 109, I.P.C Their Lordships of the Madras High Court held that the offence was really one under S. 193, I.P.C, and as such required sanction, and therefore they set aside the conviction as being without jurisdiction for want of sanction. Here also it was not a case of any independent offence committed while committing an offence for which sanction is needed. The very offence for which the accused was convicted, was held by the Court to be coming under Sec. 193, Penal Code.

    6. Apart from the considerations which I have set out on the meaning of the law, the view which we are inclined to take is supported by observations in some decided cases. In 31 Mad 433 a man was assaulted when trying under the orders of an amin to open the door of the judgment-debtors house. The argument advanced before their Lordships of the Madras High Court was exactly the same which has been advanced before us by the learned advocate for the petitioners. But it was held that as hurt was an offence for which a separate charge was permissible under S. 323, I.P.C, it was immaterial that there was no sanction and that the complaint was ordered to be proceeded with. In AIR 1924 All 2964 Stuart, J. observed as follows:

    The law on the subject is this. No complaint, the institution of which requires sanction under Section 195 of the Cr PC, can be entertained unless that sanction exists. But when a complainant combines such a complaint with a complaint which does not require sanction, the Court must investigate the complaint which does not require sanction while refusing to investigate the complaint which requires it.

    7. In this case also, the Magistrate was ordered to proceed with the complaint. Therefore, on the whole, I have no hesitation in holding that there is no substance in the contention of the learned advocate. The second contention of the learned advocate was that as the Civil Court which issued the warrant of attachment took no steps on the report of the peons, we should infer that the peon's report did not disclose the commission of any offence; and there, fore the case must be false. I am unable to accept this contention for more reasons than one. First of all, the report is not before us. If the petitioners had any reason to believe that the reports of the peons who were examined as witnesses in this case and who supported the version of the complainant were not according to their evidence in Court, it was open to them to ask the trying Magistrate to send for the reports and to confront the peons with them. This was not done. It cannot be presumed that the evidence of the peons was inconsistent with their reports. Secondly, because the learned Munsif for some reason or other which is not before us did not think it fit to take steps under Section 476 of the Cr PC, for the disobedience of his warrant, there is no reason why the complainant should be debarred from getting his redress in a Criminal Court for offences for which the sanction of the Court was not necessary. The occurrence is said to have taken place on 9th November 1937, and the complainant in this case was examined on oath on 11th November 1937. It may be that the Civil Court having been apprised that a criminal case in connexion with the same incident was pending before a Magistrate, did not think it fit to take action under Section 476 of the Cr PC, thinking that the offence did not require the sanction of the Civil Court.

    8. Finally it was urged that the sentence was severe. I do not think so. I look upon the defiance of the processes of law as a serious offence, as they hamper the administration of justice. If allowed to be committed with impunity, the prestige of the Court is lost.

    9. In my opinion in view of the manner in which the offence, as found by both the Courts, was committed, the sentence is not only adequate but, in my opinion, somewhat lenient. The application is rejected. The petitioners should surrender to their bail and serve out the unexpired portion of their sentences.

    Rowland, J.:— I agree.

    B.D/R.K

    10. Application rejected.

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    Comments

    Sheo Ahir And Others v. Emperor
    (Jul 29, 1938)