Ram Singh v. Emperor Opposite Party.

Mohamad Noor, J.:— The petitioner Ram Singh has been convicted by the Sub-divisional Officer of Monghyr under Ss. 353 and 186, I.P.C Under the former section he has been sentenced to suffer three months' rigorous imprisonment and to pay a fine of Rs. 20 and under the latter to suffer three months' rigorous imprisonment and to pay a fine of Rs. 50. The two sentences of imprisonment are to run concurrently. The conviction and the sentence have been upheld by the Sessions Judge of Monghyr.

2. The case is an outcome of an incident which took place at Barhee in the District of Monghyr in connexion with the realization of the cost of additional police quartered in that village. It seems that one Dhanukhdhari Singh had defaulted in payment of the cost, and the District Magistrate issued a distress warrant for the realization of the amount due, i.e, Rs. 49-5-0, and entrusted it for execution to the Assessment Officer of Monghyr, the Assessment Officer being Mr. Rizvi a Deputy Magistrate. The warrant was returnable by 16th December, 1933. Mr. Rizvi endorsed that warrant to his clerk Maulvi Kamrui Hussain for execution. Maulvi Kamrul Hussain was unsuccessful in realizing the amount and reported the matter to Mr. Rizvi, saying that he could not find Dhanukdhari Singh at his home. Thereupon Mr. Rizvi made over the warrant for execution to his head clerk. No name is mentioned in the endorsement, but it is admitted that the head Rierk referred to is Yad Ali. Mr. Rizvi added to the endorsement that the would also go to execute the warrant of necessary. On 15th January Mr. Rizvi himself accompanied by, amongst others, Yad Ali, Mamrul Hussain, some police constables and chaukidars, went to the house of Dhanukdhari Singh to execute the warrant. Demands were made from Karu Singh, son of Dhanukdhari Singh, who said that he was unable to pay. What happened thereafter can best be given in the language of the learned Sessions Judge:

“The ehaukidar identified three cattle tethered in the sahan in front of the house of Dhanukhdhari as his, and Mr. Rizvi ordered these cattle to be attached and driven away. At that moment the appellant, whose house is shown on a police map (Ex. 3) as being a short distance away, entered the sahan and interposed between Mr. Rizvi and the cattle saying that Danukdhari was his uncle and that he would not allow the attachment to be made. Mr. Rizvi expostulated, but the appellant (Ram Singh) stood there in a defiant and menacing attitude and refused to move and then Mr. Rizyi ordered the constables to remove him, and a constable and a peon caught hold of him and moved him away. The appellant then flew into a temper, abused the witnesses and went away saying that he would return and teach them a lesson. Soon afterwards there, was a hulla, and the appellant was seen returning with a lathi followed by same other persons. The appellant then approached within 10 or 12 paces of the witnesses, and apprehending a breach of the peace, Mr. Rizvi called on the constables to remove him. The appellant and his companions then filed and disappeared, and meanwhile the cattle under attachment also disappeared.”

3. I must point out at the outset that the learned Sessions Judge is not correct in saying in his judgment that when the petitioner Ram Singh returned later with a lathi in his hand, his companions were also armed. In fact, there is clear evidence on the record that they were not armed. Yad Ali informed what had happened to the officer in charge of the outpost located at Barhee. Information to that effect was sent to the officer in charge of the police station at Lakhi sarai, who took up the case and sent up the petitioner for trial. There was a counter case lodged on behalf of the petitioner against Mr. Rizvi in which there was an allegation of assault by that officer. The complainant was entertained by the Sub-divisional Officer, but later on the proceedings were quashed on the ground that cognizance could not be taken of the complaint against Mr. Rizvi in the absence of sanction by the Local Government under Section 197 of the Cr PC, and that order was upheld by this Court.

4. Coming to the facts of this case, the learned Sessions Judge has found the facts stated above to have been sufficiently proved. Several questions of law however have been raised before us by Mr. Baldeo Sahay in support of his re-revision application. They are these:

“(1) That the conviction under S. 186, I.P.C, is bad on the ground that there was no written complaint before a Magstnte as required by Section 195 of the Cr PC (2) That Yad Ali on whose information this case has been started was not performing any legal function when he is said to have been assaulted, inasmuch as the warrant of realization of the dues could not legally be delegated to him by Mr. Rizvi, (3) That the property sought to be attached was not the exclusive property of Dhanukdhari Singh but was a joint family property and therefore was not liable to be attached. Consequently neither Mr. Rizvi nor Yad Ali was performing a legal duty when they were engaged in attaching that property, (i) That what the petitioner is alleged to have done, namely interposing between Mr. Rizvi and the cattle, did not amount to resistance under S. 186, I.P.C (5), That the facts alleged do not constitute assault and the offence does not come under S. 353, I.P.C, as neither Mr. Rizvi nor Yad Ali whom the petitioner is said to have assaulted, was engaged in the performance of any legal duty on the grounds stated above. (6) That the learned Magistrate did not give the petitioner proper facility to have his case argued before him.”

5. So far as the last ground is concerned, it can be dismissed at once. It seems that when the petitioner wanted to have his cases transferred from the district of Monghyr the learned Chief Justice had ordered that the two cases be tried simultaneously. It was in consequence of this order that, after the case against the petitioner was closed, the learned Sub-divisional Officer summoned Mr. Rizvi and postponed the hearing of the arguments in the present case. Thereafter the proceedings against Mr. Rizvi were quashed on the ground of want of jurisdiction. The petitioner was called upon to argue this case and his applications for postponement on the 28th of June and third July were rejected. On the first day postponement was sought on the ground that the petitioner wanted to move the Sessions Judge against the order quashing the proceedings and on the second day on the ground that though the Sessions Judge was moved no order for stay in the present case could be obtained from him. I do not think the learned Sab-divisional Officer was in any way bound to adjourn the hearing of this case indefinitely waiting for the result of the steps taken by the petitioner in the counter-case. He had come to the con elusion that the counter-case could not proceed for want of jurisdiction, and so far as he was concerned that case had come to an end. Be that as it may, the petitioner was not in any way prejudiced on account of the refusal of the learned Magistrate to grant postponement. In fact, as the learned Government advocate has pointed out, the petitioner had the fullest opportunity of arguing on facts before the learned Sessions Judge. Coming to the objections which are directed against the conviction under S. 186, I.P.C, the learned Government advocate has, in my opinion, rightly conceded that the conviction under that section cannot stand. Section 195 of the Cr PC, clearly lays down that cognizance of an offence under S. 186, I.P.C, cannot be taken in the absence of a written complaint by the public officer concerned. The public officers concerned in this case were the District Magistrate who issued the warrant, Mr. Rizvi to whom the warrant was addressed and Yad Ali, assuming that Mr. Rizvi could endorse the warrant to him. There is no complaint either on behalf of the District Magistrate or Mr. Rizvi. No doubt, there was an information given by Yad Ali to the officer in charge of the outpost at Barhee, but it does not amount to a complaint within the meaning of S. 195. It is therefore not necessary to consider whether the act attributed to the petitioner amounts to an offence under S. 186, I.P.C, is bad and must be set aside.

6. Coming now to the conviction under S. 353, I.P.C, the first question raised by Mr. Baldeo Sahay is that the warrant addressed to Mr. Rizvi could not be entrusted for execution to Yad All. There seems to me to be some force in this contention. It is at any rate doubtful whether Mr. Rizvi could make over to his head clerk the warrant addressed to him. There is no provision for such delegation either in the Code or the rules framed by the Local Government under Section 386 of the Cr PC. The question is however of academic-interest in this case. Mr. Rizvi was himself present on the spot and the attachment to which the petitioner is said to have offered resistance was being carried out by him. Yad Ali and the other public servants who were there were assisting him in the execution of that warrant. If under the law the execution of the warrant could be delegated to Yad Ali, Yad Ali was there to execute the warrant. If, on the other hand, it could not be done, Mr. Rizvi, was there and was executing the warrant. The warrant was being legally executed either by Mr. Rizvi or by Yad Ali, or by both. In fact, both of them were present there and were taking part in executing it. I confess I have not been able to appreciate the contention of Mr. Baldeo Sahay in this connection. He argued that Yad Ali could not execute the warrant as it could not legally be entrusted to him, and Mr. Rizvi himself could no longer execute it as, though not legally empowered to do so, he had in fact made it over to Yad Ali. The argument is self destructive.

7. The next point urged is that the property sought to be attached was joint family property, and not the exclusive property of Dhanukdhari Singh and therefore its attachment was illegal. A reference is made to a Full Bench decision of this Court in 1932 Pat 292(1). In my opinion, the facts of that case have absolutely no application to the present case. In that case the question was whether the joint family property could be attached in execution of a warrant for the realization of fine imposed on a member of the family. It is obvious that under Section 386 of the Cr PC, and the rules made thereunder only the property of the offender can be seized, and not of any other person. In this case the warrant was not for the realization of fine imposed on any individual but for the realization of cost of the additional police quartered in a particular village which was apportioned on the inhabitants of that village. The law regarding realization of cost is laid down in Sections 15 and 16 of the Police Act of 1861. S. 15, after authorizing the Local Government to quarter additional police in a particular area, provides, in sub-Cl. (4) as follows:

“The Magistrate of the District, after such inquiry as he may deem necessary, shall apportion such cost among the inhabitants who are, as aforesaid, liable to bear the same and who shall not have been exempted under the next succeeding sub-section. Such apportionment shall be made according to the Magistrate's judgment of the respective means within such area of such inhabitants.”

8. Section 16 provides the mode of realization of cost and says:

“All moneys payable under Ss. 13, 14, 15 and 15-A shall be recoverable by the Magistrate of the district in the manner provided by Ssections 386 and 387 of the Cr PC 1882, for the recovery of fines, or be suit in any competent Court.”

9. The money may therefore be realized as a fine, but it is not a fine. Under S. 15 the cost has to be apportioned on the inhabitants of the area concerned, except on those who may be specifically exempted by the Local Government. In this case it is in evidence of Karu Singh, son of Dhanukdhari Singh, himself that the cost was assessed on his family. He says “our family was assessed to tax.” It is clear therefore that the tax by which he means the cost of the Additional Police was assessed not on Dhanukdhari Singh individually but on the entire family. Therefore, the entire family was the defaulter; and the warrant for realization was issued against Dhanukdhari Singh not in his individual capacity but in his capacity as head of the family which was assessed to that, cost and the family property was liable to be seized. Apart from this, so far as, the facts of the present case are concerned, the question whether or not the joint family property can he attached is again of no importance. In this case it; is in evidence that when Mr. Rivzi and his companions demanded money from Karu Singh, son of Dhanukdhari Singh, and he did not pay the amount, the chaukidar pointed out the cattle as the property of Dhanukdhari Singh. There is nothing on the record to show that at any time any objection was raised, or any claim was made, that the cattle were not the property of Dhanukdhari Singh.

10. 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 along to the person against whom the warrant has been issued. No objection was raised in this case. The chaukidar had pointed out the cattle as the property of Dhanukdhari Singh, and therefore Mr. Rizvi was performing a legal duty when he was proceeding to attach those cattle. The next question to be considered is whether the reappearance of the petitioner on the scene with a lathi in his hand and coming up to a distance of about 12 paces where the officers were, amounted to an offence of assault. As has been urged by the learned Government Advocate, whether a particular act amounts or does not amount to an assault depends upon the circumstances of each particular case. A particular act may not amount to an assault in one case, but the same act taken along with the other surrounding circumstances may amount to an assault in another case. In this case we have it that when the petitioner interposed between Mr. Rizvi and the cattle he was removed under the orders of Mr. Rizvi, and he then indulged in the use of abusive language and thereafter went away threatening that he would return and teach them a lesson. Soon afterwards he did come back armed with a lathi. He had his companions also, though, as I have said, they were not armed. He came sufficiently close I to the officers to raise in their minds a reasonable apprehension that actual fores was likely to be used. In the circumstances I think the petitioner's act comes within the definition of assault.

11. Now comes the question of sentence. In my opinion a sentence of imprisonment is not called for in this case. It seems that when the petitioner was removed by the constables, perhaps he lost his temper and his subsequent reappear in on the scene was in the heat of the moment. He soon realized the situation and ran away from the spot.

12. No violence or force was used by him. Under the circumstances, I think a sentence of fine will meet the ends of justice. While maintaining the conviction under S. 353, I.P.C, I would set aside the sentence of imprisonment and sentence him to pay a fine of Rs. 50 including the fine imposed upon him by the Magistrate under this section; in default; of payment of the fine he will suffer rigorous imprisonment for 15 days. The conviction and the sentence under S. 186, I.P.C, are set aside.

13. James, J.:— I agree.

14. Agarwala, J.:— I agree.

15. Order accordingly.