Bechu Mian vs Emperor

James, J.—A Sub-Inspector of Excise, who detected one Hira Dusadh in the act of committing an offence u/s 47 of the Bihar and Orissa Excise Act, attempted to arrest him, but he took refuge in the house of Bechu Mian. The Sub-Inspector called upon Bechu Mian to give up the man. Bechu Mian declined to do so; and he prevented the Excise Sub-Inspector from entering the house. Bechu Mian was accordingly prosecuted at the instance of the Sub-Inspector, and he was fined two hundred rupees u/s 216 of the Indian Penal Code on the charge of having harboured Hira Dusadh with the intention of preventing his lawful arrest On appeal the Sessions Judge of Muzaffarpur affirmed the findings of fact of the Magistrate; but he altered their application, changing the finding that the man was guilty of an offence u/s 225 of the Indian Penal Code, while he affirmed the sentence imposed by the Magistrate.

Mr. Safdar Imam on behalf of the petitioner argues in the first place that he has been prejudiced by this action of the lower Appellate Court, since he was placed on his defence to answer a charge u/s 216 and not to answer a charge u/s 225 of the Indian Penal Code of obstructing the arrest of Hira Dusadh. But the charge framed u/s 216 to the affect that Bechu Mian harboured and concealed Hira Dusadh with the intention of preventing his lawful arrest was practically the same as the charge of obstructing the arrest by preventing the Sub-Inspector from entering the house; and I do not consider that it can be held that the accused person has been in any way prejudiced by the fact that no formal charge u/s 225 of the Indian Penal Code was framed to the Court of the trying Magistrate.

Mr. Safdar Imam argues in the second place that the Sub-Inspector had no power to arrest Hira Dueadh. u/s 70 of the Excise Act any officer of the Excise Department may, subject to any restrictions prescribed by the Local Government by rule made u/s 89, arrest without warrant any person found committing an offence punishable u/s 47 of the Act. The only rules placing restrictions on the exercise of powers conferred by Section 70 of the Act are Rules 65 and 66 of the Government rules, providing that officer below the rank of a Sub-Inspector of the Excise Department may exercise the power of arrest without warrant in open places only. But Mr. Safdar Imam suggests that Sub-section (o) of Section 89 in some way relates back to Section 70. The sub-section provides that the Local Government may make rules prescribing restrictions in the application to Excise Officers of the provisions of the Criminal Procedure Code relating to powers of Police Officers which are referred to in Section 78(1) of the Excise Act. u/s 78 of the Act an Excise Officer specially empowered may, after recording and writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise the powers conferred upon a Police Officer in respect of cognizable offences by Sections 54 and 56 of the Criminal Procedure Code. But Section 78 has application in this case, since the Sub-Inspector was not, investigating an offence which he had reason to suspect had been committed, He actually detected the offence, which was committed before his eyes; and Section 70 of the Excise Act applied, so that he was entitled to arrest Hira Dusadh without warrant. Mr. Safdar Imam argued further that whatever view may be taken of the legality of the action of the Sub Inspector, the petitioner should not be held to have obstructed the arrest of Hira Dusadh, since he offered no physical resistance to the Sub Inspector. According to the evidence of the Sub-Inspector the petitioner threatened him in order to prevent him from making the arrest in the house; and this must certainly be treated as offering resistance and illegal obstruction to the lawful apprehension of Hira Dusadh. But the argument that the sentence is excessive in view of the fact that the Sub-Inspector so meekly respected the threats held out by the petitioner does, in my opinion, deserve some consideration. I consider that in the circumstances the Sub-Inspector ought to have compelled the petitioner to let him into the house; but instead of doing this he went straight to the Magistrate and complained of obstruction and it should be recognized that the obstruction offered was not such as to constitute a serious offence I consider that in the circumstances a fine of thirty rupees will be sufficient punishment for the petitioner. The finding of the lower Appellate Court is affirmed but the sentence is reduced to a fine of thirty rupees. The balance of the fine originally imposed, if paid, will be refunded.