Gopal Mahton and Another vs Emperor

Meredith, J.—The applicants have been convicted u/s 186, I.P.C. Gopal Mahton, an old man aged about 80, has been sentenced to pay a fine of Rs. 50, or in default to undergo rigorous imprisonment for one fortnight.

The other applicant, Mouji Mahton, has been sentenced to undergo rigorous imprisonment for a period of six weeks and to pay a fine of Rs. 50, or in default to suffer a further one month''s rigorous imprisonment. The concurrent findings of the Courts below are that the local collecting member of the chaukidari panchayat known as the assessor panch went armed with a warrant to realise arrears of chaukidari tax by attachment of the cattle of the petitioner, Gopal Mahton. The assessor panch attached two heads of cattle, but when he had gone a short distance, the petitioners and others came up and rescued them, Mouji, who was armed with a pharsa, threatening to assault the assessor panch and his man. Two points of law have been taken in this application in revision, first, that the assessor panch was not a public servant acting in the discharge of his public functions and, secondly, that the warrant was bad, and the petitioners accordingly could have committed no offence in resisting its execution.

I consider there is no substance in the first contention. Section 21, I.P.C., provides that the words "public servant" denota inter alia:

Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district.

An assessor panch making collections is certainly such an officer. Amongst the duties of the collecting member as prescribed in Rule 50 of the Chaukidari Manual are:

(a) To receive and collect the rate, and to grant receipts for the same, and (b) to keep and to be responsible for all papers, accounts, and records connected with the assessment and collection of the tax, and the administration of the Act generally.

The assessor panch in this case certainly was acting in the discharge of his public duties. Whether his action was legal or illegal is a different question. My attention has been drawn to the case in Lilla Singh v. Queen-Empress (95) 22 Cal. 286, where it was held that an amin measuring lands which he had no power to measure in batwara proceedings could not be said to be a public servant acting in discharge of his public functions.

That, however, was a case where the amin had gone altogether outside his proper sphere and the proper scope of his duties, and the case is quite different from the present one where the assessor panch was acting entirely in the exercise of his duties. I turn now to the second point. The Act which is applicable in the area to which this case relates is the Chaukidari Act, VI of 1870. u/s 27 of that Act, after a list of the persons who have failed to pay their tax for the quarter has been published:

The collecting member of the panchayat shall thereupon issue a writing in the form in Schedule A, signed by Mm, authorizing the chaukidar, or such other person as may be therein named, to levy, by the distraint and sale of a sufficient portion of the moveable property of such defaulters, the amount of their respective arrears together with sums equal to such arrears, respectively, by way of penalty.

The form prescribed in Schedule A is as follows:

On behalf of the panchayat of ( ) whereas the several persons named in the list at foot hereof have made default in payment to the said panchayat of the sums in the said list set opposit to their respective names, you are hereby authorized and required to levy by distress and sale of a sufficient portion of the moveable property of the said defaulters the said several sums set opposite to their respective names, together with additional sums by way of penalty respectively equal to the sums set forth.

Dated day of 18. (Sd.) R.B. Collecting Member. Name and des- Amount. When due. Penalty. cription. B.G. 1-0 1 Bysack 1-0 K.B. 0-2 1 " 0-2

The assessor panch in the present case used the proper form. He also took the orders of the sub-divisional officer in accordanee with the notes to Rule 77 of the Chaukidari Manual, before he acted. But in issuing the warrant he made several mistakes. In the first place, he signed the warrant not in the proper place for his signature, but lower down below the schedule showing the amounts to be realized. Secondly, he did not fill in the name of the person authorized to execute the warrant. That space in the form was left blank. Thirdly, he did not date the warrant. That space also was left blank. Having prepared this warrant, instead of making it over to the chaukidar or some other authorized person, he proceeded to execute it himself. It is contended that these were defects not merely of form, but of substance, and were sufficient to render the warrant illegal and it is well settled that resistance to an illegal warrant is no offence.

It has been laid down by this Court in Mohini Mohan v. Emperor AIR 1916 Pat.272, that in order to support a conviction for resistance to a public servant in discharge of his duty, the warrant must be a lawful one and the person who executes-the warrant must be clothed with lawful authority under the warrant to execute it. It is no offence to resist the execution of a bad warrant or to obstruct the execution of a warrant by a person to whom it is not directed. It was further laid down that a warrant of execution which does not bear a date on or before which it should be executed, is not a good warrant.

Prima facie, therefore, it would appear that this warrant was a bad one, and that a conviction for resisting its execution could not be sustained. There is, however, a section of the Chaukidari Act which is relied on by the Crown to cure the defects to which I have referred. This is Section 34 and it was doubtless enacted by the Legislature because of the fact that the persons whose duty it is to operate the Chaukidari Act in the villages are not trained permanent officials. The material portion of Section 34 runs as follows:

No distress levied by virtue of this Act shall be deemed unlawful...on account of any defect or want of form in any list, assessment, notice, summons, power, writing, inventory or other proceeding relating thereto...but all persons aggrieved by such irregularity may recover full satisfaction for any special damage sustained by them, in any Court of competent jurisdiction, subject to the provisions of Section 63 of this Act.

On the basis of this section it is argued that a suit for damages might or might not lie, but in any case forcible resistance to the execution of an irregular warrant would not be justified. It has further been argued for the Crown that Section 27, Chaukidari Act, is only meant to prescribe the procedure which is to be followed by the collecting member if he does not act personally. With that I cannot agree. The collecting member whether he acts personally, or through some one else authorized by him, must act strictly in accordance with law and with the rules legally prescribed. Amongst the duties of the panchayat laid down in Section 45 of the Rules is (1) "to conduct the assessment and collection of the chaukidari tax according to law and rule." The use of the words "according to law and rule" is to be noted. The assessor panch must act strictly in accordance with law and rule. Section 27 is mandatory, and prescribes the procedure which must be followed in realizing arrears by warrant. It affords no scope for the contention that an assessor panch, if he chooses to act himself instead of authorizing some one else, can act arbitrarily, or irregularly. Unless Section 34 is held to be wide enough to cover a warrant bearing the defects found in this case, the convictions clearly cannot be sustained.

A section like Section 34, must be construed very strictly and narrowly, as to a certain extent it detracts from the fundamental right of the subject to protection from any act of the executive authorities, which is not entirely lawful and regular, or is in any way arbitrary. Construing this section in the way I have indicated, it appears to me that the words "any defect in the power or writing" must be read with the words "want of form," and must therefore be taken as covering only formal defects. Now it appears to me that the fact that the signature of the assessor panch is placed wrongly at the bottom of the form instead of in the place provided for the purpose is only a formal defect, and would be covered by Section 34.

Similarly, it may be that the omission of any date in the proper place is also a formal defect. I find that in the column for showing when the amount fell due two dates have been entered, 23rd November 1939, and 20th December 1939. It is contended that 23rd November was meant for the date of issue of the warrant", and 20th December was meant as the returnable date. That may possibly be so, and if it is the case, then on the whole I would hold that this defect though serious, came just within the scope of Section 84.

With regard, however, to the complete omission of any authorization to any one to execute the warrant, I find myself quite unable to hold that this is a formal defect such as can be remedied by Section 34, in the view I take of that section. It may be that it would have been within the power of the assessor panch to authorize himself to execute the warrant, by filling in his own name; for Section 27 says that either "the chaukidar, or such other person as may be therein named" may be authorized to execute the warrant.

In this case, however, the assessor panch authorized neither himself nor any one else. The warrant in fact was directed to no one, and authorized no one. To my mind, in such circumstances, it was a warrant wholly without any legal force, and the defect was not one to which Section 34 can have any application.

The petitioners, as the Courts below have pointed out, may be illiterate and may not have known anything about the defect in the warrant. That will not prevent them from taking advantage of the defect once it is proved to exist. They resisted a warrant which was illegal and without force. The resistance therefore constituted no offence. The incident amounted at the most to threats on their part. No one was struck or hurt.

In the circumstances I am not prepared to sustain the convictions.

The application will be allowed, the convictions will be set aside, and the petitioners acquitted. The petitioner Mouji Mahton must be discharged from his bail, and the orders upon both petitioners for payment of fine are cancelled.