Patna High Court
Mewa Lal And Ors. vs Emperor on 7 August, 1917
Equivalent citations: 44IND. CAS.41, AIR 1918 PATNA 197
JUDGMENT Mullick, J.
1. On the 14th of June last a lady named Dulhin Jagat Rup Kuer died in Mouza Lowahi.
2. It appears that an application was made to the Sub-Divisional Magistrate of Sitamarhi by Musammat Gulab Kuer claiming the house and the moveable and immoveable properties of the lady. In consequence of that application the Sub-Divisional Magistrate went to Lowahi and recorded proceedings under Section 145 of the Criminal Procedure Code calling upon Musammat Genda Kuer, first party, Musammat Gulab Kuer, second party, and four other persons described as the third party, to appear before him on the 1st July to support their respective claims to the immoveable properties. At the same time the learned Sub-Divisional Magistrate attached the house under the provisions of Section 145 and appointed a gentleman, named Mr. Everett, who was the Manager of Musammat Dulhin Jagat Rup Kuer, as Receiver. On the 16th of June, Mr. Everett appears to have sent a telegram to the Sub-Divisional Magistrate making certain complaints against the servants of Musammat Dulhin Genda Kuer, the first party. That telegram is not on the record, but it is alleged that the complaint was that the servants of Musammat Dulhin. Genda Kuer were attempting to loot the properties of the deceased lady. Thereupon the Sub-Divisional Magistrate passed the following order on the Sub-Inspector of Police:
Mr. Everett informs me that peon and amlas have been sent to Lawahi by Babu Sarjug Prasad. Go to Lawahi and turn them out and report their names to me. You will obtain Mr. Everett's signature on this paper in token of this having been done to his satisfaction and return this paper to me by to-morrow.
3. On the 48th of June the Sub-Inspector of Police proceeded to Lawahi and was unsuccessful in inducing the servants of Musammat Dulhin Genda Kuer to leave the premises and he submitted the following report to the Sub-Divisional Magistrate: Sir, I proceeded to Lawahi immediately on receipt of the order with the constables available in the Police Station. Babu Brijbihari Singh, who was present here with his peons, did not obey the orders and wrote down a note of disobedience which I herewith attach. I recommend for their prosecution under Section 188, Indian Penal Code, and submit a separate report.
4. The note of disobedience is to the following effect:
The Magistrate's order to withdraw has been read over to me to day the 18th June, 1917, at 10-30 a. m. at Lawahi, which I refuse to obey till the proper attachment of the property is done and list prepared.
5. On the Sub-Inspector's report the Sub-Divisional Magistrate himself proceeded to the house of Musammat Dulhin Jagat Rup Kuer on the 19th of June, 1917, and finding the seven petitioners, who appear to be servants of Musammat Dulhin Ganda Kuer, on the premises he arrested them of his own motion and took proceedings for their prosecution under Section 448 of the Indian Penal Code. He held a summary trial on the spot and after examining three witnesses for the prosecution convicted the petitioners under Section 448, Indian Penal Code, and sentenced them to rigorous imprisonment for one month each.
6. An application was made to the Sessions Judge against these convictions and sentences but without success. The petitioners have accordingly come to this Court. Now the first question that arises is whether the appointment of the Receiver was a legal appointment in this case. Under Section 145, Criminal Procedure Code, as amended, a Magistrate has in cases of emergency the power to attach the subject in dispute, but it does not appear that he has any power at that stage to appoint a Receiver. There is authority for the proposition that he cannot appoint a Receiver except under Section 146 Srinivasa Pillay v. Sathayappa Pillay 14 Ind. Cas. 759 : 13 Cr.L.J. 295 and the reason for this is quite clear. Where the Magistrate finds that nobody is in possession or that the evidence is so conflicting that it is impossible to find who is in possession, the Magistrate is empowered to attach and to appoint a Receiver, who will take physical possession of the property; but that state of affairs does not exist before the enquiry has been made. When a Magistrate takes proceedings under Section 145 the object of the law is that he shall confirm the party in actual possession. He is certainly not competent to dispossess such a party by appointing a Receiver, and the order of attachment which the law empowers him to make has no greater force than any Civil Court attachment, the effect of which is generally to restrain alienations. The allegation is that Musammat Dulhin Genda Kuer had immediately after the death of Musammat Dulhin Jagat Rup Kuer proceeded to the house and performed the sradh ceremony, but of this we have no evidence before us. It is an undisputed fact, however, that her servants were in possession of at least one outhouse at the time when the Magistrate made his order of attachment and that Mr. Everett was not competent at that stage of the proceedings to eject them. Therefore, unless they committed any Criminal act after that date, it does not appear that there was any ground for proceeding against them. The Magistrate in his explanation suggests that there was a fear that the petitioners would loot the house. It does not appear from Mr. Everett's evidence or indeed from any other evidence on the record that this was the case. When the Sub-Inspector of Police appeared on the scene on the 18th of June, the conduct of Brijbihari Singh was no doubt contumacious, but I am unable to say upon the evidence before us that either he or his subordinates were guilty of any Criminal offence. He stated that he would not vacate the outhouse until a proper attachment had been made and until a list of the property had been prepared.
7. Now the essence of an offence under Section 448 is that there should be an intention to insult, annoy or intimidate the owner of the property or such person as was acting on behalf of the owner. Even assuming that Mr. Everett had been duly appointed to act on behalf of the owner, it does not appear from the conduct of the petitioners that they in any way interfered with his possession or with due performance of his duties. It is stated by the Sub-Inspector of Police in the enclosure to his report of the 18th of June that the petitioners were armed with lathis, but it appears from Mr. Everett's evidence that the lathis were in the kutchery and that the petitioners did not show any intention of using them. On the contrary the conduct of the petitioners was, in my opinion, quite consistent with the plea that they acted in good faith and with the sole object of preventing rival claimants from carrying away any moveable property from the house. From Mr. Everett's evidence it is clear that the house was not securely locked and it is in evidence that the learned Sub-Divisional Magistrate on the 18th of June found a sum of Rs. 20,000 in cash which he carried away to the local treasury.
8. In these circumstances I think that the plea of bona fides has been made out and that as the petitioners were there merely for the purpose of guarding the property or assisting Mr. Everett in guarding the property, no offence under Section 448 has been made out.
9. Then as regards procedure, I agree that the trial was irregular. The learned Sub-Divisional Magistrate, inspite of the protests of the accused, tried the case at the house of the deceased lady without giving the petitioners the opportunity of being represented by legal practitioners or calling defence witnesses. The learned Sub-Divisional Magistrate was certainly competent to arrest the accused and to put them on their trial. But in my opinion he exercised his jurisdiction with material irregularity in holding the trial at a place where the accused were totally incapable of making a' proper defence. It does not appear that there was any particular reason why the accused could not either have been taken forthwith to the learned Sub-Divisional Magistrate's headquarters or enlarged on bail and tried in accordance with law after being accorded the assistance which they required.
10. An objection has been taken by Mr. Manuk as to the jurisdiction of the learned Magistrate to try the case himself. It is urged that he acted under Section 190 (c) of the Code of Criminal Procedure and that he was not competent to hold the trial himself.
11. Now although the Magistrate's reason for going to the place of occurrence on the 19th of June was in the first instance prompted by the telegram received from Mr. Everett on the 16th June, I think the report of the Sub-Inspector of Police of the 18th June may be taken to be a report stating facts which constitute the offence of Criminal house-trespass. It is true that the Sub-Inspector of Police himself asked for a prosecution under Section 188, Indian Penal Code, only, but the learned Magistrate was competent on the perusal of the report to put the accused on trial for an offence under Section 448, Indian Penal Code, if that offence was disclosed upon the facts alleged in the report. Therefore, so far as this ground of objection is concerned, I do not think the learned Counsel for the petitioners has made out his case, but upon the substantial part of his case I agree with him and hold that the convictions and sentences were illegal and should be set aside. The petitioners will be discharged from their bail.
Jwala Prasad, J.
12. I agree to the order proposed by my learned brother that the convictions in this case should be set aside. The petitioners cannot possibly be said to be guilty under Section 448, for the simple reason that it has not been shown from the evidence on the record that there was any intention on their part to intimidate, insult or annoy any person in possession of the property. This is an essential ingredient for an offence under Section 448. The whole case against the petitioners is due to their refusal to obey the order of the Sub-Divisional Magistrate conveyed to them by the Sub-Inspector of Police on the 18th of June 1917. Babu Brij Bihari Singh, the Manager of Musammat Dulhin Genda Kuer, who is said to have been acting as the head of the petitioners at that time, refused to obey the order upon the ground that he would remain upon the premises till the proper attachment of the property had been done and a list prepared." This shows the intention of Babu Brij Bihari Singh and his men. The house in question belonged to Musammat Dulhin Jagat Rup Kuer who died on the 14th of June, that is, only four days before the order of the Sub-Divisional Magistrate was passed upon the petitioners to leave the premises. She was possessed of large property, moveable and immoveable, as the proceeding under Section 145 shows. The house itself is said to have contained very valuable property, so much so that when the list was made by the Court of Wards a large sum of money was found in the house, which was removed to the Sitamarhi Sub-Treasury. Musammat Dulhin Genda Kuer, on whose behalf Babu Brij Behari Singh and the petitioners were acting, treated this property as belonging to her adopted son. On the 15th of June when the Sub-Divisional Magistrate arrived on the spot the only thing that was done was to put some seals here and there, but the proper inventory of the properties was not made and the custody of all moveable property in the house was not taken. The decision of the learned District Judge under the Curators Act (Act XIX of 1841) disposing of the claim of the contending parties to the properties of Musammat Dulhin Jagat Rup Kuer shows that the adopted boy of Musammat Genda Kuer was held to be the rightful owner of the estate left by the deceased lady, and that he was in rightful possession of the property. This subsequent event I have mentioned only with a view to show what must have been the intention of the petitioners at the time when they refused to obey the order of the Sub-Divisional Magistrate. The petitioners refused clearly and boldly, what the Sub-Inspector says sternly, to obey the order of the Sub Divisional Magistrate, because Brij Bihari Singh was at that time conscious of his possession and was fully aware of the danger of leaving the property as it was; and because in the interest of his mistress and the rightful owner of the property he thought he was entitled to remain on the premises and to guard the properties from being removed by the rival claimants or by strangers or from any charge of misappropriation. The petitioners were also interested in a proper list being made of the properties so that no possible charge of theft or misappropriation be brought against them, for just two or three days before the petitioners with their mistress had been in the house after the death of the Musammat Dulhin Jugat Rup Kuer. All that has been proved in the evidence in this case is that the petitioners were in an outhouse of the premises and that they had some lathis in that room. This is consistent with the conduct of persons intent on guarding the properties supposed to belong to them. There is no charge made against them by any of the witnesses, even by Mr. Everett, that the petitioners ever attempted to use violence or ever attempted to force themselves into the house or to remove or touch any of the properties in the house. If we are to judge the intentions of the petitioners by their overt acts, there is only one inference, that the petitioners believed themselves and were acting bona fide in order to guard the properties. This is sufficient to dispose of the present application of the petitioners. Section 448 is not at all applicable to this case. I have no doubt in my mind as to the impropriety of the order passed by the Magistrate under Section 145 at that stage, still more uncalled-for was the order of attachment and the appointment of the Receiver at that stage. If the Magistrate thought, and I think that he had reason to think, that there was likelihood of a breach of the peace among the rival claimants to the property of Musummat Dulhin Jagat Rup Kuer, the proper and effective action was under Section 144 of the Criminal Procedure Code made to give the Magistrate time to take necessary measures under Section 107 or 145 of the Criminal Procedure Code. The order under Section 144 would have all the desired effect of preventing a breach of the peace and of preventing the property being interfered with or removed by any of the rival claimants. Mr. Everett, as has been clearly shown by my learned brother, was not the properly constituted Receiver under that Act. He had no right to dispossess or to turn out a person who was in possession of the house. In the present case some of the servants of Musammat Dulhin Genda Kuer were in one of the outhouses before the proceedings under Section 145 were instituted. What would have been the effect of the order under Section 145 passed on the spot attaching the property and appointing a Receiver thereof if Musummat Dulhin Genda Kuer had herself been on the premises? Probably the Receiver armed with that order would have, as he had done in this case, attempted to turn out the lady from the premises. This is to illustrate how premature was the action of the Sub-Divisional Magistrate in appointing a Receiver at that stage. A Receiver is appointed only when the Magistrate is unable to decide which of the parties is in possession and has a right to remain in possession, and considers it necessary that the property should vest in some person appointed by the Court under Section 146. During the pendency of Section 145 proceedings the Magistrate can attach the property the subject-matter of dispute, but there is no provision in Section 145 for the appointment of a Receiver consequent upon attachment, as in Section 146. As said by my learned brother, an attachment under Section 145 may have the same effect as an attachment under the Civil Procedure Code. It may possibly amount to some-thing more than that, that is to say, after attachment the Magistrate may take steps for proper care and custody of the property and prevent the removal of the property by any of the rival claimants or strangers. In the present case the petitioners were not trying to remove, or in any way interfere with, the properties attached but were simply guarding them.
13. For all these reasons I agree that the convictions and sentences should be set aside and. the petitioners discharged from their bail.