Patna High Court
Badri Gope And Ors. vs Emperor on 27 October, 1925
Equivalent citations: 93IND. CAS.146
JUDGMENT Adami, J.
1. The facts of this case are very simple. A decree having been passed against Badri Gope, a writ of attachment was drawn up and made over to the Civil Court peon, Lalji Misser, who on December, 3rd 1924, went to Gobindpur where Badri lives, together with the identifier, Ramcharan Tanti. Badri Gope was away from home when they arrived at his house, but his mother was there. The peon attached a bullock and a calf and proceeded to take them to Monghyr in company with the identifier and a servant of the decree-holder.
2. When the party had proceeded and reached a well, situated three miles along the road- from Jamalpur to Monghyr, the petitioner, Badri, with the two other petitioners came running up and obstructed the party. The writ was shown to them, but in spite of this, they assaulted the identifier and rescued the cattle. They were prosecuted under Section 186, Indian Penal Code, found guilty under that section and sentenced to rigorous imprisonment for one month each. Their defence was a total denial of the attachment and of the occurrence.
3. When the case came up for trial it was found that not only had a careless mistake been made in dating the writ but also that the writ did not bear the seal of the Court, as required by the provisions of Order XXI, Rule 24 (2).
4. On appeal the learned Sessions Judge upheld the conviction and sentence, distinguishing the present case from the cases relied on by the appellants; Khidir Bux v. Emperor 49 Ind. Cas. 171 : 3 P.L.J. 636 : 20 Cr.L.J. 139. and Sheikh Naseer v. Emperor 5 Ind. Cas. 409 : 37 C. 122 : 14 C.W.N. 282 : 11 Cr. L. J. 128. on the ground that here there was no resistance to attachment but a rescue a considerable time after the attachment, so that no right of private defence arose. He held that a technical defect in the warrant could not give the appellants the right forcibly to rescue property of which they had lost possession.
5. Now the provisions of Order XXI, Rule 24 49 Ind. Cas. 171 : 3 P.L.J. 636 : 20 Cr. L. J. 139. are mandatory and an attachment made under a writ which does not bear the seal of the Court, as required by that rule, is an invalid and illegal attachment as has been held by Mullick and Thornhill, JJ., in the case of Khidir Bux v. Emperor 49 Ind. Cas. 171 : 3 P.L.J. 636 : 20 Cr. L.J. 139. The defect is not a mere technical one, the presence of the seal of the Court to give authority to the writ is an obviously imperative safeguard.
6. The writ being thus invalid and the attachment illegal, if resistance had been made to its execution at the time the cattle were being attached, there can, I think, be no question that the petitioner, Badri, would be held to be free from liability for his action as long as no excessive force was used, Khidir Bux v. Emperor 49 Ind. Cas. 171 : 3 P.L.J. 636 : 20 Cr. L.J. 139. Sheikh Naseer v. Emperor 5 Ind. Cas. 409 : 37 C. 122 : 14 C.W.N. 282 : 11 Cr. L.J. 128. Arjun Sure v. Emperor 44 Ind. Cas. 737 : 3 P.L.J. 106 : 19 Cr. L.J. 385. Mohini Mohan Banerji v. Emperor 36 Ind. Cas. 871 : 1 P.L.J. 550 : 18 Cr.L.J. 39 : 3 P.L.W. 64. Debi Singh v. Queen-Empress 28 C. 399 : 5 C.W.N. 413. and Tanuk Lal Mandar v. Emperor 60 Ind. Cas. 334 : 1 P.L.T. 654 : (1920) Pat. 285 : 22 Cr. L. J. 222
7. The question to be decided here is whether, when an illegal attachment has been made in the absence of the judgment-debtor and the property has been taken into possession by the Civil Court peon and has been in his possession for some time, the judgment-debtor commits an offence when he obstructs the peon and takes back his property. The learned Sessions Judge has held that in such circumstances no right of private defence of property still exists.
8. The learned Assistant Government Advocate follows the same line of argument. He contends that, in attaching the cattle under a writ which he believed to be valid, the Civil Court peon was not committing an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which was an attempt to commit any of those offences, and, therefore, the bright of private defence of property, as described and denned in Section 97 of the Indian Penal Code, did not subsist, and he further contends that, even if ordinarily there would be such right of private defence, the provisions of Section 99 of the same Code would prevent the petitioners pleading that right because the peon was acting in good faith under colour of his office, though owing to the defect in the writ his action may not have been strictly justifiable by law. He explains that the effect of Section 99 was not taken into consideration in the cases on which the petitioners rely.
9. In the case of Bisu Haldar v. Emperor 11 C.W.N. 836 : 6 Cr. L.J. 38. Stephen and Cox, JJ., and in that of Moinuddin v. Emperor 61 Ind. Cas. 794 : 2 P.L.T. 455 : 22 Cr. L.J. 442. Jwala Prasad, J., did consider the effect of the words "not strictly justifiable by law" and held that where the warrant is altogether invalid and illegal the words will not take away the right of private defence.
10. In the present case the question of private defence of property hardly arises. The petitioner came upon the peon taking his cattle along the road and claimed them. The peon showed him a writ which was of no force because it bore no seal of the Court, (though probably Badri did not notice this). The peon not being able to justify his possession of the cattle, the petitioner committed no offence in taking them. There was no assault on the peon, who gave up the cattle when he saw the identifier being assaulted. It was fortunate for the petitioners that the writ proved to be an invalid one, they can have had no knowledge of this, but in their defence they were entitled to rely on its invalidity.
11. The cases of R. v. Boyle 7 Cox O.C. 428. R. v. Williams (1800) 2 C. & K. 1001, and R. v. Knight (1909) 73 J.P. 15 : 25 T.L.R. 87, show that under the law of England the petitioners would not, in the circumstances of this case, be held liable to punishment.
12. As to the effect of Section 99 of the Indian Penal Code a clear explanation, has been given by Sir John Edge, C. J., and Burkitt, J., in the case of Queen-Empress v. Dalip 18 A. 246 : A.W.N. (1896) 48 : 8 Ind. Deo (N.S.) 871, If in the present case the petitioners had assaulted or caused grievous hurt to the peon, under Section 99 they would not have been, able to plead the right of private defence of property as a justification, because the peon was acting in good faith under colour of his office, though his attachment of the cattle may not have been justifiable by law.
13. After careful consideration I am of opinion that, in the circumstances of this case, the conviction of the petitioners under Section 186 should not be upheld, and I would set aside the conviction and sentences and acquit them.
Bucknill, J.
14. I agree.