EMPEROR Vs. TOHFA

JUDGEMENT

(1.) Tohfa and his two sons, Harbans and Chandar were convicted by a Magistrate of the Meerut district on a charge under Section 186, Indian Penal Code. On appeal they were acquitted by the Sessions Judge. This is an appeal on behalf of the Local Government against their acquittal. The facts of the case are not in dispute. One Abdulla sued Tohfa in the Munsif's Court at Ghaziabad on the basis of a pronote. He filed his suit on 10 February, and on 13 February, he applied to the Court for attachment before judgment under Order 38, Rule 5. The Munsif allowed the application in the following terms: Let notice go to the defendant to show cause why the application be not allowed. Interim attachment meanwhile. Let B. Onkar Nath. vakil do the work of attachment.

(2.) Accordingly on 10 February, B. Onkar Nath went to Tohfa's village accompanied by the plaintiff in the suit and his pairokars. Tohfa and his sons came out of the house armed with lathis. They adopted an offensive attitute and said that they would never allow the attachment to be made and that they would break the head of anyone who should point out the property. At the same time they removed three head of cattle. The Commissioner apprehending that an assault might be committed thereupon retired; but when he had gone a short distance, he heard cries and, on looking round, he saw that one of the plaintiff's men had actually been assaulted by Chandar. The learned Sessions Judge has disagreed with the Magistrate and has acquitted the three respondents on the ground that for a conviction under Section 186, Indian Penal Code, it must be shown that there was "physical" obstruction. He has relied on three rulings. The first is a Single Judge ruling of the Lahore High Court: Mt. Darkan V/s. Emperor A.I.R. 1928 Lah. 827. But the facts of that case were quite different from the facts of the case before us. All that happened in that case was that a woman against whom a warrant of attachment had been issued abused the process server and said that she would mot allow him to attach her cattle. There is nothing to show that her attitude was such as to give rise to an apprehension of assault; nor docs the judgment show that she actually stood in the way of the process-server in order to bar his advance and prevent him carrying out his duty.

(3.) The next case is a Single Judge case of this Court, Emperor V/s. Aijaz Hasain (1916) 38 All 506. That was a case under Section 225(b), Indian Penal Code. All that was proved in it was that the person whose arrest was being sought said to the process server: "Take me if you can to the tahsil; I won t go." The Court remarked in its judgment that: something more than evasion of arrest or a mere assertion by the person sought to be arrested that he would not like to be arrested or that a fight would be the result of such arrest is required.