MAHABIR SAH Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have all six of them been convicted of an offence under Section 206, Indian Penal Code, and sentenced to two months rigorous imprisonment each.

(2.) Two of them, Ramrekha and Chanderdeo, have also been convicted of an offence under Section 186, Indian Penal Code, and fined Rs. 25 each with one month's further imprisonment in default. This was in connexion with the attachment of a sugarcane crop growing on 9 plots of land in three different places adjoining one another in execution of a decree obtained against the principal petitioners Mahabir Sah and Narsing Sah. Gokhul Thakur, a civil Court peon, was sent out to execute the warrants of attachment under Order 21, Rule 30, Civil P.C., (in Form No. 8 of Appendix E in Schedule 1 of the Code). As the judgment-debtors refused to pay, he attached the crops on 25 December 1938, and remained on the scene to "hold" them as directed in the writs. On 1 January the petitioners Ramrekha and Chandradeo, sipahis of the judgment-debtors, began to cut the crops in spite of the peon's protests. The peon made a report to the Munsif, as a result of which a constable was deputed to help the peon. In spite of remonstrances by the peon and the constable, the petitioners went on with the cutting of the crops till 6th January, and removed the crops too. For this offence they were charged under Section 206. The charge under Section 186 was framed in respect of obstruction voluntarily offered to the civil Court peon "in the discharge of his public function" in watching the attached crops. It is difficult to see why the petitioners were charged with an offence under Section 206 and how they were found guilty of it. The section runs: Whoever fraudulently removes, conceals... and property... intending thereby to prevent that property... from being taken in execution of a decree... shall be punished with imprisonment of either description, etc....

(3.) This clearly makes fraudulent removal or concealment a matter of the essence of the offence. But the prosecution story is that the petitioners forcibly cut the crops and removed them in spite of the remonstrances of the peon and the constable; and there is no trace of any fraudulent removal or concealment in it. This escaped the notice of the Magistrate who tried the case and also of the Magistrate who heard the appeal. The conviction under this section must plainly be set aside. The charge under Section 206 was also carelessly framed and tried in respect of the dates, which were repeated in the charge under Section 186, namely "between the day of 1 September and day of 6 September 1939." How these dates came to be mentioned is also difficult to understand, for the warrants of attachment were only issued in December and the story is that the peon was obstructed in January 1939, from the 1 to the 6th, and nothing of any importance that could have happened between 1 and 6 September, was mentioned at the trial.