Patna High Court
Ramsaran Singh And Ors. vs State Of Bihar on 25 August, 1959
Equivalent citations: AIR1960PAT232, 1960CRILJ636, AIR 1960 PATNA 232, 1959 BLJR 671
ORDER R.K. Choudhary, J.
1. The petitioners in this case have been convicted under Sections 143, 353 and 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three months each under Section 143, but no separate sentence has been passed under the other two sections. The prosecution story, stated briefly, is as follows: Certain persons, including one Sarjug Rat, were standing trial before Mr. H.N. Khan, Magistrate First Class, Begusarai, Sarjug Rai was ordered to be released on bail of Rs. 1,000/- with two sureties of the like amount. Parmeshwari Rai, petitioner No. 2, and one Geeta Rai stood sureties for him, and both executed a bail bond on 1-1-1956. The bail bond was executed on the old form No. 42 of Schedule V of the Code of Criminal Procedure, which contained the words 'Qaisar-e-Hind' (King Emperor of India) as being the persons in whose favour the bond was being executed. Sarjug Rai did not appear in court, and the bailors, though asked, failed to produce him in Court. The bail bonds were, therefore, forfeited, and a notice was sent to petitioner No. 2. one of the bailors, under Section 514 of the Code of Criminal Procedure, to show cause why he should not pay the penalty. The petitioner showed cause, but that was not accepted by the Magistrate, and, on the failure of the petitioner to pay the amount, a distress warrant was issued which was endorsed in favour of the Assistant Sub-Inspector of Police, Dinanath Misir, by the officer in charge of Teghra police station. On 3-7-1957, this Assistant Sub-Inspector, along with a constable (P. W. 4). went to execute the distress warrant. Petitioner No. 2 was asked to pay the amount, but he refused to do so, and, thereupon, the Assistant Sub-Inspector attached his two cows, one calf, three goats and two kids.
When he proceeded towards the thana along with the attached cattle and came near a mango orchard, the petitioners are said to have arrived there and to have forcibly rescued the three goats and the two kids from his lawful custody. There was a hulla and some witnesses came there who saw the occurrence. The Assistant Sub-Inspector of police, thereafter, went with the remaining cattle to the thana where he gave a written report before the Sub-Inspector of Police, and a formal first information report was drawn up on its basis. After enquiry, a charge-sheet was submitted against the petitioners, who were put on trial under the sections noted above. The defence pleaded their innocence and denied the entire occurrence. The trial Court accepted the case of the prosecution and convicted and sentenced the petitioners as stated above, and the order of conviction and sentence passed by it was confirmed in appeal by the appellate Court. Being thus aggrieved, the petitioners have moved this court in revision.
2. The only point that has been raised in support of the application on behalf of the petitioners is that the distress warrant issued by the Court was illegal as the forfeiture of the bond itself Was illegal. It is submitted that the bond was executed in favour of Qaiser-e-Hind, and, as such, after India became a Republic, it could not be said to have been executed under the provisions of the Code of Criminal Procedure, and could not, therefore, be forfeited under Section 514 of that Code. The contention is that the bond in the present case was executed in favour of Qaise-e-Bind, that is, King Emperor of India; but, after India became a Republic, there is no King Emperor for India, and the bond executed in favour of King Emperor could not be forfeited to Government. It fs further contended that, as the bond could not be forfeited to Government, the distress warrant issued for the realisation of the penalty was absolutely without jurisdiction and illegal, and that the petitioner had a right, in self-defence to protect their cattle from being attached in pursuance of the illegal distress warrant. This point was not taken in either of the Courts below. Since, however, it is a pure question of law, it can very well be raised even for the first time in the High Court in revision.
3. I have looked into the bond, which is OH the record, and it is in favour of Qaiser-e-Hind. Counsel for the State also has not challenged the existence of the bond in favour of Qaiser-e-Hind' Schedule V of the Code of Criminal Procedure gives the form of the bond which was to be executed under Section 499 of the Code for the attendance of the accused persons. Sub-section (1) of that section states that before any person is released on bail or released on his own bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and. when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police-officer or Court, as the case may be. Form No. 42 of Schedule V is in two parts.
The first part is to be executed by the accused himself, and the second part is to be executed by the surety or sureties. Before India became a Republic, the above bond, as the form then stood, was to be executed in favour of the Empress of India. It appears that the same form was used in the present case even after India became a Republic. It is contended that, as the bond was executed in favour of Qaiser-e-Hind, and not Government, and, as there is no King Emperor in India now, it had no legal force and was absolutely invalid so as to be acted upon. Section 514 of the Code of Criminal Procedure deals with forfeiture of a bond, and it says, in sub-s, (1), that whenever it is proved to the satisfaction of tho Court by which a bond under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited the court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.
Thus a bond which could be forfeited under this section was a bond taken under the provisions of the Code of Criminal Procedure. After India became a Republic, the above form No. 42 was amended by the Adaptation of Laws Order, 1950, and a plain reading of Clause (4) of that Order shows that whenever the words "Crown"
"Her Majesty" and "His Majesty" appear, the word "Government" had to be substituted in the existing Central of Provincial laws mentioned in the first schedule of the Order, which includes the Code of Criminal Procedure. It has, therefore, been urged that the bond executed in favour of Qaiser-e-Hind was not a bond in favour of the Government and could not be treated as such even under the Adaptation of Laws Order. The point though technical, is a substantial one, and cannot but be given effect to.
4. Considering the provisions of the Code of Criminal Procedure as they stood before as well as after India became a Republic, there is no room for doubt that a bond executed in favour of Qaiser-e-Hind is not a bond in favour of the Government under the provisions of the Code of Criminal Procedure, and cannot, therefore, be forfeited under Section 514 of that Code. The forfeiture in this case, therefore, was illegal, and, consequently, the distress warrant issued by the Magistrate for enforcing the forfeiture was also illegal. It was beyond the jurisdiction of the Magistrate either to forfeit the bond or to issue the distress warrant for realisation of the penalty.
5. The above view gains support from a decision of the Allahabad High Court in Bhairon Lal Ramadhin v. State, AIR 1956 All 123 and a decision of the Supreme Court in State of Uttar Pradesh v. Mohammed Sayeed, (S) AIR 1957 SC 587. In the Allahabad case the bond executed by the surety was in favour of King Emperor on the old printed form, though it was executed after the commencement of the Constitution and the coming into force of the Adaptation of Laws Order, 1950-It was held that, after India became a Republic, there is no King Emperor so far as India is concerned, and there is no point in executing a bond in favour of the King Emperor, and that, where a bond is by mistake executed in favour of King Emperor on the old form, the bond cannot be forfeited to Government. In the Supreme Court case also, the bond by the surety under Section 499 of the Code of Criminal Procedure, undertaking to produce the accused before the Court, was executed in favour of King Emperor Qaiser-e-Hind, and it was held that by that bond the surety had not bound himself either to the government of the Union of India or that of the State to have his bond forfeited on his failure to produce the accused before the Court, and that he was entitled to say that nq order of forfeiture could be passed against him with respect to a bond which was not one under the Code and which was unknown to the law as contained in the Code at the time of its execution.
6. It was contended on behalf of the petitioners that the attachment of the cattle in pursuance of an illegal distress warrant was itself illegal, and they were perfectly entitled to rescue the cattle in their right of private defence under Section 97 of the Indian Pena! Code. That section lays down. that every person has a right, subject to the restrictions contained in Section 99, to defend the property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal tresspass. It is manifest from the above section that, if the case of the petitioners does not fall within the restrictions contained in Section 99 of the Code, they had a right of private defence of the cattle which were being taken away against their consent under the authority of an illegal distress warrant.
It has now to be seen whether their case fulls within any of the. restrictions contained in Section 99 or not. There are various restrictions laid down in that section, but the restriction with which I am concerned in the present case is the first one, which says that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. In this case it is submitted on behalf of the State that, notwithstanding the illegality of the distress warrant, the assistant Sub-Inspector of Police, a public servant, was acting in good faith under colour of his office, and there was no apprehension of death or of grievous hurt or an attempt to cause death or grievous hurt, and therefore, the right of private defence to rescue the cattle was not available to the petitioners. The section, however, has given protection to the public servant while acting in good faith only in cases where the act may not be strictly justifiable by law. The expression "strictly justifiable by law", has been purposely used for not bringing in cases of absolute want of jurisdiction under the purview of the protection afforded by the section. This expression has been interpreted in several cases to point to cases where there is "excess of jurisdiction" as distinct from a "complete absence of jurisdiction".
7. The leading case on the point is a Bench decision of the Calcutta High Court in Bisu Haldar v. Probhat Chunder, 6 Cal LJ 127. In that case what happened was that the husband of a woman commenced proceedings before a Magistrate under Section 100 of the Code of Criminal Procedure alleging that his wife had gone to the house of her father with certain property of his. On that complaint, the Magistrate issued a warrant, but the terms of the warrant, that was actually issued, appeared to be those as could be in warrant issued under Section 96 of the Code for the production of a document or thing, and not for the production of a human being. When the police, armed with the warrant, went to the house of the petitioners to take the woman, they resisted the police from doing so.
It was held that the issue of the warrant was wholly illegal and the warrant must be treated as a nullity, and that the petitioners were justified in doing what they did, and the convictions were illegal. While interpreting the expression "strictly justifiable by law" used in Section 99 of the Indian Penal Code, their Lordships referred to Mr. Mayne's Commentary on Criminal Law, Section 225, wherein it is stated that the words "not strictly justifiable by law" seem to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction, to cases where the official has done wrongly what he might have done rightly, not to cases where the act could not possibly have been done rightly. The authority of this case has been accepted by this Court in Moinuddin v.
Emperor, AIR 1921 Pat 415. In that case, on the petition of one Hari Ram, to which one Mussammat Osiman was not a party, the Magistrate directed the police to see that Hari Ram's party may be allowed to go to the land and cut the crop. Mussammat Osiman and her men prevented the cutting and removal of the crop, and they were, therefore, convicted of rioting under Section 147 of the Indian Penal Code.
This court held that the order passed by the Magistrate purported to be under Section 144 of the Code of Criminal Procedure which did not authorise him to pass the order directing the police to see that a particular party goes over the land and cuts the crops, and that such an order was ultra vires and could not give any lawful authority to the police to allow that party to cut and remove the crop from the land. It was further held that Mussammat Osiman and her men were justified in Preventing the cutting and removal of the crop and there was a clear right of private defence of property available to them. In another case of this court in Jograj Mahto v. Emperor, AIR 1940 Pat 696, a Bench of this Court held that the word "strictly" has been deliberately inserted by the legislature to show that Section 99 was not intended to apply to cases where the act was wholly unjustified and that it does not extend to cases where there is a complete want of, jurisdiction. On the authorities discussed above, it is, therefore, manifest that the attachment of the cattle by the Assistant Sub-Inspector of Police on the basis of an illegal distress warrant was absolutely unjustified and without jurisdiction and the petitioners had a right of private defence under Section 97 of the Indian Penal Code to protect their cattle, and they could not, therefore, be convicted for rescuing them from the custody of the police. The order of conviction, therefore, is illegal and must be set aside.
8. Then remains the question with respect to the two cows and one calf which the Assistant Sub-Inspector of Police had succeeded in taking away to the police station. Admittedly they belong to petitioner No. 2, and the attachment of the same has been held to be illegal, and the petitioners are being acquitted. 'Counsel for the petitioners has, therefore, urged that an order should be made directing the District Magistrate to make over the said two cows and one calf to petitioner No. 2 under Section 517 of the Code of Criminal Procedure. Sub-section (1) of that section says that when an enquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any (property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. Under Clause
(d) of Section 423(1) of the Code of Criminal Procedure, the Appellate Court is competent to make any amendment or any consequential or incidental order that may be just or proper. The order directing the disposal of property is a consequential order within the meaning of Section 423(1)(d) and, therefore, the Appellate Court is entitled to pass an order for delivery of a property under Section 517 of the Code of Criminal Procedure. Since the High Court in revision possesses all the powers of an Appellate Court, the High Court also can, in revision, pass an order under the above section. A direction, therefore, may be given to the District Magistrate for delivering the cattle mentioned above to petitioner No. 2.
9. The result, therefore, is that the application succeeds, the order of conviction and sentence passed on the petitioners is set aside and they are acquitted of all the charges levelled against them.
The petitioners will now be discharged from their bail bonds. The District Magistrate is directed to deliver the two cows and one calf noted above to petitioner No. 2.