EMPEROR Vs. AHMAD HUSAIN KHAN

JUDGEMENT

(1.) IN dealing with this reference I do not propose to discuss the question now pending before a Bench of this Court, as to whether a citation issued under Section 147 of the Land Revenue Act is a "summons, notice or order." within the meaning of Secs.172,173 and 174 of the INdian Penal Code. For the purpose of this case I will assume that it is, and will confine myself to the question directly raised in the reference, which is whether the accused, to whom a citation was issued under Section 147 of the Land Revenue Act (III of 1901), has been rightly convicted of an offence under Section 173 of the INdian Penal Code, having regard to the facts found. The answer to this question depends on whether (the accused, by declining to accept the citation or by refusing to sign the duplicate citation, can be said to have prevented the serving of the citation on himself. Secs.195 and 196 of Act III of 1901 enact that a summons or notice may be served by tendering or delivering a copy to the person to whom the summon or notice is directed. IN the case of The Queen V/s. Punamalai Nadan (1882) I.L.R. 5 Mad. 199 it was ruled that neither the refusal to receive a summons nor the refusal to sign the duplicate was an offence under Section 173 of the INdian Penal Code, the reason given by Kernan and Kindersley, JJ., for taking this view being that the words "prevents the serving on himself" in Section 173 of the INdian Penal Code cannot be held applicable in a case where the summons is tendered and refused, inasmuch as tendering is in itself good service. With this view I agree. The foot-note to the report of the case mentioned shows that INnes and Kindebsley, JJ., had previously held that a refusal to receive a summons, by throwing it down after it had been presented was not punishable under Section 173 of the INdian Penal Code. It has also been ruled that a refusal to sign a receipt for a summons, i.e., refusal to sign and return the duplicate, was not an act which prevented the service of the summons. This view, with which I agree, was taken in the following cases: Reg. V/s. Kalya bin Fakir (1868) 5 Bom. H.C. Rep. Cr.C. 34 IN the matter of Bhoobuneshwar Datt (1877) I.L.R. 3 Calc. 621; Queen Empress V/s. Hira Lal Weekly Notes 1883 p. 222; (where Section 172 appears to have been inadvertently printed for Section 173) and Queen-Empress V/s. Krishna Gobinda Das (1892) I.L.R. 20 Calc. 358.

(2.) AS regards the rules made by the Board of Revenue to regulate the service of summonses and notices I agree with the learned Sessions Judge that they cannot add to or override the provisions of Secs.195 and 196 of the Land Revenue Act; nor do they attempt to do so. They are for the guidance of the serving officer, and do no more than point out how he should proceed when serving summonses or notices. They do not profess to declare what constitutes good and sufficient service in law. For the reasons given I accept the recommendation of the learned Sessions Judge of Shahjahanpur and set aside the conviction and sentence passed upon Ahmad Husain Khan and acquit him and I direct that the fine if paid, be refunded to him.