Birdhi Chand Jaipuria vs Darbari Jayaswal and Others

Courtney-Terrell, C.J.—This is a petition for the revision of a decision of the Subdivisional Officer of Manbhum acquitting certain persona who were charged under Sections 186 and 147, I. P.C. It is rarely that this Court sets aside an acquittal by a Magistrate, but the circumstances of this case are somewhat unusual and call for such action on the part of this Court.

It would appear that there had been a suit between two parties of Marwaris which resulted in a decree in favour of the plaintiff for the payment of a sum of money by the defendants, and in execution of that decree a naib nazir of the District Judge''s Court went to Balarampur to execute a writ of attachment against the property of Chunilal Lahariwala and five other persons. He was accompanied by civil Court peons, by a pleader of the decree holder and by an individual named Madan Lal Jaipuria who is a grandson of one of the decree holders and who went with the naib nazir for the purposes of identification. The writ of attachment was in ordinary form and directed the naib nazir to attach and keep in his custody the moveable and immovable property of the judgment-debtors unless he should receive payment of the sum for which the decree was passed. The persons who have ultimately been accused in this case are firstly one Darbari Jayaswal who appears to be a servant of the judgment-debtor''s firm. Then there are a number of persons: Lakshmi Narayan, Mahabir Prasad Lahariwala and Jokhiram Lahariwala who appear to be members of the family, who constitute the defendant firm, and there is also one Aminuddin who was a servant.

When the naib nazir was taken by the pleader and Madan Lal Jaipuria to the place where the defendant firm carry on their business he was first taken to the house which was occupied by them and he there met a number of members of the firm including the actual judgment-debtors and read out and explained the writ of attachment and demanded the money which was payable. They replied that they had no money and told the naib nazir that he could do what he liked. Thereupon he went round to the main entrance of the house, but found the door of the courtyard locked and a large crowd of people armed with various weapons. Considering discretion to be the better part of valour he left a peon there with directions to see that nothing was removed from the house, and went to another place of business of the judgment-debtors hoping to have better fortune. He first visited a lac factory of the judgment debtors and here also he found a similar state of affairs. The doors were locked and an armed party was waiting for the reception of the officer. There again the nazir repeated his procedure. He left a peon to watch the factory and went on a second journey to a flour mill. There again the same procedure was repeated. He found an armed party and the place locked up. Then he went to a shop where miscellaneous articles were sold by the judgment-debtors and there again he found people posted.

By this time it dawned upon the naib nazir that the defendants intended to resist his efforts to execute the writ of attachment, a not unreasonable inference from what he found. He wired to the Subordinate Judge to give him police assistance and he also went round to the police station and asked for help there, and there is an entry in the station diary to that effect. As a matter of fact the writer head constable had already anticipated something of the kind because he had received information that the defendants were going to hire persons of violence and to offer resistance to the attachment.

The naib nazir after these adventures finally went to the guddi of the decree-holders and he found that the two principal judgment-debtors were there with a certain gentleman of the neighbourhood, and these persons re-assnred him and said that there would be no trouble in executing the attachment and asked him to proceed. Thereupon he went to the flour mill, broke the lock on the door, and went inside and with assistance he took up an iron chest which was found in the office and proceeded to take it away and to put it on to a lorry. In the meantime the persons accused returned to the place with a large crowd and said that they would not allow the chest to be taken away and they struck Madan Lal, the identifier, and threw stones. Madan Lal ran away and then the whole verandah was surrounded by men with lathis in their hands and the taxi in which Madan Lal was seeking to escape was subjected to a volley of stones and the hood was broken. The civil Court peons who had been posted at various places by the naib nazir naturally began to be frightened and then finally the naib nazir came away leaving the iron chest on the verandah of the flour mill. The consequence of all this was that the naib nazir submitted a report to the Subordinate Judge who ordered him to complain to the Court, cognizance was taken and these persons were made accused and charged with resisting a public officer in the discharge of his duty and also with rioting.

When the case came before the sub-divisional officer he first of all spent some months in taking evidence. It is an astounding fact that this case was allowed to drag on for I think seven months, adjournments being asked for from time to time and acceded to by the subdivisional officer. I must say in justice to him that he has most commendably kept an admirable order-sheet in which the whole of the details of the various hearings and adjournments are entered up in a way which permits of their very easy comprehension and I may say moreover, if it is any satisfaction to the subdivisional officer, that he has the admirable quality of being a most excellent penman for the entries which he made are beautifully legible. Nevertheless the numerous adjournments are really inexcusable. I have almost given up in despair protesting against the ridiculous delays that take place in petty criminal cases before Magistrates and any observations I have to make upon this subject I feel sure will fall upon deaf ears. A case which might easonably take 20 minutes before a competent Magistrate is allowed by means of adjournments to drag on for months. However, ultimately the case reached a stage when the Magistrate felt that he might safely listen to the arguments of legal advisers and it appears that there was propounded to the Magistrate on behalf of the accused persons an argument of a somewhat curious character. Astonishing to say this argument seems to have found favour with the Magistrate, and without waiting to consider whether the evidence proved the complicity of the various persons accused in the offence with which they were charged he decided that the accused could not be convicted of either of the charges by reason of this point of law which was urged on their behalf.

The supposed point of law was to this effect: that the rules as to attachment provided that when immovable property is seized the attaching officer should give an opportunity first of all for the value of the attached property to be ascertained and then should give an opportunity to the persons whose property it is to have the property kept in safe custody rather than to remove it into the officer''s own custody. As a matter of fact the writ of attachment is perfectly clear upon the face of it. The directions are to the officer that he is to seize the property and keep it in his custody, and whether or not there exist any rules such as are spoken of and which are said to have been derived from the practice in Calcutta I am not concerned to inquire. The Magistrate however was unable to find on the evidence that the naib nazir had gone through the formality of asking the persons present when he seized the chest whether they wished to avail themselves of this procedure or not. He therefore came to the conclusion that the removal of the iron chest without the offer of the procedure described deprived the nazir of any justification, and in fact deprived him of any jurisdiction. He apparently did not see the simple and obvious point that the naib nazir had a warrant addressed to him which it was his duty to obey, and it was not the duty of the naib nazir to question the form of the directions which he received, and the law is and I should have thought it an elementary proposition, that if a public officer does no more than act upon the official instructions he has received, and if those official instructions are not of such a kind as to be obviously and patently illegal, then he acts properly in carrying out such orders and, resistance to a public officer carrying out orders which upon the face of them are not open to objection and are in proper form is an offence against the statute.

The subdivisional officer seems to have been completely misled by the argument and although he has devoted much anxiety and care in an attempt to look up all the authorities and statutes which he thought might have a bearing upon the matter he has got into a hopeless and unnecessary tangle. He should have treated the argument very summarily and merely looked at the warrant of attachment and seen whether the officer was doing something which was not contained in the writ of attachment which would have justified reasonable resistance and only such reasonable resistance as was necessary for the purpose of resisting an unlawful act. In this case not only was there no unlawful act on the part of the naib nazir, but in any case the resistance offered was entirely out of proportion and unnecessary for the purpose of preventing him from carrying out his duty. I feel it my duty therefore to set aside, in the particular circumstances of this case, the acquittal. I shall remand this case to the subdivisional officer who tried it. It will not be necessary for him to take any further evidence inasmuch as all the evidence which is relevant has already been taken. He will then proceed ignoring the plea of an alleged right of lawful resistance, to estimate according to law the evidence and to decide whether or not the individuals who have been accused are guilty of the offences imputed to them, and he should remember that an offence of this kind of resistance to an officer of the Court is a serious offence and must be dealt with as such.

I may add that not only does the record of the case show wholly unnecessary delays in dealing with the matter, but the cross-examination of the witnesses and the examination-in-chief seem to have been prolonged to an extraordinary length and in future the Magistrate would be well advised to take a firm line with persons who waste the time of the Court by asking unnecessary questions. I therefore remit this case to the Magistrate to be dealt with according to law.