GOVERNMENT OF BENGAL Vs. ALIMANDI

JUDGEMENT

(1.) In this case we have before us, first of all an appeal preferred by the Government against an order of acquittal passed by the Subdivisional Officer of Netrokona. That officer had before him a number of accused persons who were prosecuted out of the circumstances that arose when the nazir of the civil Court went with a large party of the auction-purchaser's men to give possession of certain land under Rule 95, Order 21, Civil P.C. It appears clear and it is accepted by the trying Magistrate that on 4 April 1931 the nazir with his peons and with these men of the auction-purchaser went in the morning to the land in question. The nazir allowed a substantial time for the employees of the auction-purchaser to come to terms with the judgment-debtors. After a while according to him after 2&frack12; hours he refused to wait any longer and told the judgment-debtors party to remove their women and chattels. The women and the chattel were removed from the huts. Thereupon, Alimuddin certainly and it may be others of the respondents also objected to the taking down of the huts. They objected apparently on the ground that the writ was only to give delivery of possession of the land and was not to give delivery of possession of the huts. There was however nothing in this objection and it was necessary to remove the huts in order to give delivery of possession of the land.

(2.) It is quite clear upon the evidence that the judgment-debtor's party which was a large party present on the land was given every opportunity to remove the huts themselves. They refused to do so and thereupon the nazir said that the decree-holder's people should remove the huts and they proceeded to take down the huts some of which were covered with corrugated iron sheets. When these people were removing Alimuddin's hut, Alimuddin gave orders and it is proved that each and every one of the accused before us except perhaps Darogali on the order of Alimuddin chased the nazir, his peons and the decree-holder's men with lathi, dao and other weapons and drove them from the place thereby not only committing assault but obstructing further processes of the Court. The nazir wrote his report the next day and it was filed on 7 April. This story and the complicity of each of the accused as stated above is clearly made out on the evidence and the evidence of the occurrence as I have endeavoured to describe it was satisfactory to the trying Magistrate. It may here be added that as regards the accused Darogali, it was proved that at the time when the party of the nazir was being driven from the site this accused set fire to one of the huts which contained some straw which was easily inflammable. It is quite clear that the idea was that by setting fire to one of these huts the accused would be able to make out that the nazir and his party had committed some excess in the course of the execution. The trying Magistrate was satisfied of this and he convicted this accused Darogali under Section 193, I.P.C., for fabricating false evidence and sentenced him.

(3.) As regards the other accused and also as regards Darogali on the other charges, however, the trying Magistrate arrived at the verdict of acquittal and the reasons which led him to that verdict, are these: He says that as regards one of the huts at least which was in the shape of a gable roofed hut some of the sheets of corrugated iron were bent and that the posts which supported the chal had not been properly and carefully dug out and uprooted but had been cut through two or three feet from the ground. He says that this was not done with any improper motive but it was a careless way of proceeding to demolish the hut. As he says that this was done with want of due care therefore under Section 52, I.P.C., he thinks the absence of sufficient care and attention means that the huts were not demolished in good faith. Thereupon he goes on further to say that the party of the nazir were committing mischief by carrying out this execution. That being so he further says that there was a right of private defence on the judgment-debtors party and, on the basis that there was a right of private defence on the judgment-debtor's part, the last step in his reasoning is that Section 99, I.P.C. did not in any way disentitle these accused persons from using force against the nazir and his people. Section 99 says there is no 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 public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law and that there is no 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 the direction of the public servant acting in good faith under colour of his office.