EMPEROR Vs. SAKHARAM RAWAJI PAWAR

JUDGEMENT

(1.) IN this case the accused applies in revision against his conviction by the First Class Magistrate of Rahuri under Section 183 of the INdian Penal Code, the conviction having been upheld by the Sessions Judge of Ahmednagar, Section 183 provides that whoever offers any resistance to the taking of any property by the lawful authority of any public servant, knowing or having reason to believe that he is such public servant, shall be punished as therein provided. So that, in order to bring the section into operation, there must be resistance to the taking of property by the lawful authority of a public servant. The facts are that a man named Baban owned certain land in respect of which he was in arrear with "his irrigation dues. He had sold the sugar-cane grown in that land to a man named Raichand, who had employed the accused to crush the sugar, and the jaggery was being removed in two carts, when it was attached by the Talati in respect of the irrigation dues in arrear. The accused subsequently removed the carts from the custody of the Talati, and took them away, but no act of violence is alleged. Under Section 57 of the Bombay Irrigation Act, 1879 (Bom. VII of 1879) it is provided that any instalment of irrigation dues not paid on the due date shall be recoverable according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. The section of the Land Revenue Code under which the seizure of these carts is sought to be justified is Section 154, which provides that the Collector may cause the defaulter's moveable property to be distrained and sold.

(2.) TWO objections are taken to the conviction, one technical, and one on the merits. The technical objection is that it is not proved that the Talati was a public servant. The Talati put in an authority from the Mamlatdar authorising him to seize the crops of Baban, that authority being Ex. 1c. But it was not proved that the Mamlatdar had power to give that authority to the Talati. Under the Bombay Land Revenue Code it is the Collector who has the power to enforce payment of land revenue in arrears, and the Mamlatdar can only act by showing that the Collector has delegated to him the particular power in question. That was laid down by this Court in Gangaram Hatiram v. Dinkar Ganesh (1913) I. L. R. 37 Bom. 542 : s. c. 15 Bom. L. R. 665. In this case there is no evidence on the record to show that the Collector had delegated his authority to act under Section 154 to the Mamlatdar. The Assistant Government Pleader says that this point was not taken in the lower Court, and ought not to be taken now, but it is plainly open in revision for an accused person to say that on the face of the record the prosecution has not: proved their case. It is not for the defence to point out to the prosecution any missing link in their chain of proof. The omission to prove the authority of the Mamlatdar is, in my opinion, fatal to the conviction.