Bajrang Marwari and Others vs Durga Prasad Sao

Rowland, J.—The facts out of which this appeal arises are that a rent suit was instituted by Durga Prasad Sao, on 6th November 1935, claiming house rent of a shop from Nathmal, one of the petitioners, and another person and applied to the Munsif on 8th November 1935, for attachment before judgment of moveables in the shop of the defendants. The Munsif ordered notice to issue to the defendants, and it was returned by the peon as having been served on them. Subsequently, however, the Munsif has come to a finding that this process was suppressed. The Munsif accepting the return of service at its face value, ordered the issue of an ad interim attachment before judgment in pursuance of which on 13th November 1935 the plaintiff and a civil Court peon went to the shop of the defendants in Jharia and began removing goods of the defendants. The peon wanted to take the goods away and bring them to the Court at Dhanbad.

The accused persons, according to the peon''s report, abused him and the identifier and snatched away the goods saying "we will not allow you to take away the goods." The peon submitted his return of service on the following morning before the nazir. The plaintiff Durga applied to the Munsif requesting him to order the prosecution of the persons named in the peon''s report u/s 183,1.P.C. Mean, while Nathmal, defendant, appeared on the 14th November, and showed a cause against the order for attachment before judgment. On 7th December 1935, the Munsif discharged the interim order of attachment holding that the plaintiff''s allegation that the defendants were about to close their shop and abscond was utterly unfounded and malicious. The Munsif after considering the cause shown by Nathmal and others against their prosecution u/s 183, declined to order any proceedings to be taken. Durga Prasad thereupon presented to the District Judge a petition described as an appeal u/s 476-B, Criminal P. C, and entertained by the District Judge as such. I have to point out that no such appeal lay to the District Judge. The section gives an appeal against the refusal of a Subordinate Court to make a complaint u/s 476. Section 476 is the section giving a Court power to make a complaint of an offence referred to in Section 195(1), Clause (b) or (c). These are clauses which require the complaint of a Court for the institution of proceedings for offences under certain sections of the Penal Code, when committed in relation to a proceeding in a Court. But the alleged offence which we are now considering is an offence u/s 183,1. P. C, which is not referred to in Section 476, Criminal P.C. The requisite for a prosecution u/s 183 is laid down in Section 195, Clause (a), Criminal P. C, and is that there should be a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate, that is to say, the peon was under the Code competent to file a complaint, failing which it could have been filed by a public servant to whom the peon is subordinate.

So the first question that arises is whether the peon was subordinate to the Munsif. Such a question was considered in Thakur Prasad and Another Vs. Emperor, . Macpherson, J., held that the process-serving staff were not under the rules then in force subordinate to the individual Courts issuing process for service by them. I may mention that the position has since been altered by an amendment of Rule 24, at p. 16, Vol. I of the High Court''s General Rules and Circular Orders (Civil), but at the time of the proceedings that we are dealing with, this amendment had not been made and the state of the law was, as pointed out by Macpherson, J. in the decision cited. Therefore, in the first place, the application to the Munsif was one that he had no jurisdiction to entertain. In the second place, the appeal to the District Judge was one that he had no jurisdiction to entertain from there. An appeal has been presented to this Court purporting to be an appeal u/s 476-B, and I feel doubt whether any appeal lies to this Court under that section. There is, however, sufficient revisional jurisdiction to empower this Court to set aside an order passed without Jurisdiction in cases in which such interference is called for; and I do so. It is urged for the Crown and as against the interference of this Court that the District Judge being a public servant to whom the peon is subordinate had an independent power of his own u/s 195(1)(a) of the Code to make a complaint, and that if a District Judge makes a complaint under that provision, the order is an administrative one. That may be; but the District Judge in the present case purports to act as a Court. He says:

This Court will make a complaint u/s 476-B, Criminal P. C, which the subordinate Court might have made u/s 476.

That order, as it stands is an order which the District Judge as a Court had no jurisdiction to pass, and I am not prepared to say that he did in fact pass it in any other capacity, that is to say, in the capacity of a public servant to whom the peon was subordinate. The merits have been placed before me, and I may point out, in the event of the District Judge being disposed to take up the matter afresh in his administrative and non-judicial capacity, some points which he would do well to consider before taking action. The first is that in considering whether a prosecution is to be ordered or not, it is desirable to have regard to the interests of public justice rather than to the gratification of private spite. Regard may also be had to the question whether the prayer for prosecution is a maneuver to obtain an undue advantage by embarrassing the defence in a pending civil proceeding. Under this head the learned District Judge will no doubt remember the Munsif''s finding that the application for attachment before judgment was mala fide as well as the finding that the plaintiff had managed to get an interim order through the Court by fraudulent suppression of the preliminary notice so that on the day the petitioners who are still only defendants and net judgment-debtors were taken by surprise. Another point which might well be( considered is whether there is evidence of any criminal act against each individual person against whom it is proposed to take proceedings; and with reference to the general question whether there is a prima facie case at all, it may be examined whether the peon was in fact following a lawful procedure. It seems to have been taken for granted in the Courts below that the ordinary procedure for a Court''s officer who is deputed to make an attachment of moveable property is to remove the property from the place where he finds it and to bring it to the Court from which the warrant has issued. That is not the direction in the warrant. The warrant dated 13th November 1935, directed the peon:

to attach the following properties of the said defendants and keep the same under safe and secure custody until the further order of the Court ... and to return the warrant on or before 3rd December 1935.

There is no order in the warrant to bring the goods to the Court. The procedure to be followed by a Court''s officer executing a warrant is in Rules 43 and 43-A, Order 21 as framed by the Patna High Court under its rule-making powers. (The rules may be found in Mulla''s Code of Civil Procedure, Edn. 10, Appx. 8, at p. 1513.) Rule 43 provides that moveable property other than agricultural produce is to be attached by actual seizure and the attaching officer shall be responsible for the due custody thereof. The rule does not say that he is to keep it anywhere else but where he finds it. Rule 43-A directs the attaching officer in suitable cases to keep the attached property in the village or locality. He may keep it in his own custody in any suitable place provided by the judgment-debtor, or in his absence by any adult member of his family who is present on his own premises or elsewhere. For instance, if the judgment-debtor has an almirah, goods may be put in the almirah, the peon sealing or locking it. Failing this the attached property may be kept in the custody of a respectable surety. It is only when, in the opinion of the attaching officer, the attached property could not be kept in the village or locality through lack of suitable place or satisfactory surety etc. that the attaching officer is to remove the property to the Court at the decree-holder''s expense. If the decree-holder fails to provide the necessary funds, the attachment will be withdrawn. These rules are supplemented by Rule 7, at p. 31, Vol. I, of the High Court''s General Rules and Circular Orders and the rules regarding process fees, etc., at p. 120 and following of the same volume. In the table annexed to Rule 1, in Article 3(b) at p. 121 provision is made in the case of issue of process of attachment of property by actual seizure for a daily fee for each man necessary to ensure the safe custody of property attached when such a man is actually in possession. What this contemplates is that the Court''s bailiff enters on the premises where the attached property is to be found and remains there holding the property against any unlawful removal; for each day that he is to be detained so holding the property, a fee is payable. In this connexion the District Judge may refer to Note 2 at p. 122. Ordinarily the party taking out an attachment is expected to deposit not less than 15 days'' fee of the officer who is to be in possession of the property.

Now turning back to Rule 7, at p. 31 (as amended in 1933), it is to be noticed that the officer is to be furnished with a certificate stating the period for which the fee has been paid and is to give notice thereof to the judgment-debtor or other person at whose instance he remains in possession at the place of attachment. It is not until that period has expired that the officer is to remove the property from the premises; and even so the judgment-debtor has the option of depositing before the expiry of that period the further fee as required by para. 2, Note 1 to Rule 1, at p. 122, in which case the property will continue to remain at the place where it is. Therefore should the District Judge feel at all disposed still to pursue the matter, it will be for him to consider whether the peon was acting within his lawful authority in seeking to remove the property without giving the defendants any option of having it kept in the peon''s custody at the place where was.