Chunder Coomar Sen and Others vs Queen-Empress

The Petitioners have been convicted, one of them under secs. 353 and 147, I.P.C. and the others of abetment of an offence under sec. 353, that is, of assaulting or using criminal force to the Complainant, a Nazir, in the execution of his duty as such, with the intention of preventing or deterring him from discharging his duty. The case for the prosecution is that the Nazir was executing a warrant for the attachment of certain property belonging to Tafazzul Ahmed in satisfaction of a certificate under the Public Demands Recovery Act for costs in certain proceedings. In the first instance, the attachment proceeded quietly but, after a little while, a man who was the mokhtar of the debtor appeared and required to see the warrant of attachment. He then declared that this warrant was an illegal warrant which could not be properly executed and instigated the debtor and others forcibly to resist the execution. Thereupon the Nazir was assaulted and he ran away to the Settlement Officer by whom the warrant had been issued. Objections were raised in the trial in the lower Court as well as before us, and it was upon this point that a Rule was granted, on the ground that the warrant was not a legal one and, therefore, the conviction for forcibly resisting its execution could not be sustained. It is very unfortunate that, after the lengthy proceedings that have been held, we should find at this stage of the ease that the warrant has neither been produced in the lower Court nor has secondary evidence been given, after proper steps taken to produce the original had failed, to show its contents. We have only on the record another warrant issued on the failure of the first warrant, but there is nothing to show that the contents of the two warrants were the same nor is there anything to show what the contents of the first warrant were, to whom it was addressed or for what period it was current. It is impossible, therefore, to say how far it was a valid warrant. The lower Court seem to have held that that warrant was for the attachment of whatever property the Nazir, the officer executing it, might find on search as belonging to the judgment-debtor. The area of the search is not described and, if it were a valid warrant, it would be competent to the Nazir to seize any property that, he believed, belonged to the judgment-debtor at any place within the jurisdiction of the Court issuing it. It seems unnecessary to point out the serious objections that there would be to allowing such a warrant to be regarded as a valid warrant. It is different from the form prescribed by the Code of Civil Procedure, Ex. IV, No. 136, for warrants of the description, inasmuch as it does not fix any responsibility on any person for the attachment of any moveable property which may be found not to belong to the judgment-debtor whereas the terms of the form, as given in the Code, are express in this respect. In the absence, therefore, of any evidence as to the terms of the warrant either by the production of the original or in the form of secondary evidence, it is impossible for us to hold that the conviction is good and can be sustained. One of the Petitioners has been convicted of rioting and, in respect of that conviction, it is only necessary to say that the charge does not declare what was the common object of the assembly by which the riot was committed. It is impossible, therefore, to say that this Petitioner has been properly convicted of that offence. The Rule is made absolute. The conviction and sentence will be set aside in respect of all the Petitioners and the fine, if paid, will be refunded.