DUKHAN SAHU Vs. EMPEROR

JUDGEMENT

(1.) The Lohardaga Municipality obtained a money decree against Jhalu Sahu for arrears of Municipal taxes and a writ of attachment was issued by the Court against the goods of Jhalu supposed to be in Jhalu's shop in Lohardaga. The peon went to the place indicated, accompanied by two employees of the Municipality who pointed out the shop and goods as being the property of Jhalu who was found present there. When the peon wished to attach the goods pointed out, the petitioner who is son of Jhalu said that the shop and the goods did not belong to Jhalu but to himself and he refused to permit the attachment to be made. The peon and the two employees of the Municipality have said that the petitioner threatened the peon with assault, thereby indicating that any further attempt to effect the attachment would be resisted by force. The peon gave up the attempt to execute the warrant on Dukhan, writing an endorsement on the writ to the effect that "The things are mine, I shall not allow them to be attached". The peon then returned the write to Court reporting the reason why it could not be executed and the Munsif laid a complaint against the petitioner in pursuance of Section 195, Criminal Procedure Code, for his prosecution for an offence under Section 186, Indian Penal Code. The petitioner was convicted and the con-viction has been affirmed on appeal.

(2.) The findings of the Courts below as to what happened at the, shop are findings of fact. The prosecution case as above outlined has been accepted. Neither the Magistrate nor the Judicial Commissioner on appeal has come to a definite finding as to whether the shop and the goods in it are the property of Jhalu or of the petitioner. It is argued that in the absence of a finding that the goods are the property of the person whose property the peon was authorized to seize, it cannot be held that the peon was acting in. the discharge of his public functions or that the petitioner was committing any offence in preventing him from effecting the attachment. It was suggested also that the act of the petitioner did not amount to an obstruction because physical force was not proved to have been used. I do not find any substance in this point. There was sufficient indication that force would have been used if the peon had persisted and that to my mind is quite enough to constitute obstruction. The other point, however, requires mare examination.

(3.) Mr. R.S. Chattarji for the petitioner has drawn my attention to a number of decisions in which convictions under Section 186 or similar sections have been set aside. These cases, the Advocate-General would explain as being cases in which either the warrant is bad or the instructions in the warrant are exceeding. He contends that where the warrant is a lawful warrant and the public Servant is acting within the instructions contained in the warrant, he is a public servant in the discharge of his public functions and resistance to him is criminal. If, however, he exceeds his instructions he has been in some cases regarded as not engaged in the discharge of his public functions, and in. such cases, it has been held that resistance to him is not an offence. There is a class of cases also where the authority under which a public servant is acting is found on examination not to extend to the doing of the act on which he was engaged. Here obstruction or resistance is not itself an offence but if the public servant at the time in good faith believed himself to be within his authority and was acting in good faith under colour of his officer though the act he did, may not be strictly justified by the law, then Section 99 gives him this much protection that there is no right of private defence against his act and a person who not only resists him but further commits an assault or causes hurt to him can be punished for so doing.