Gurucharan Mahto and Another vs Emperor

Das, J.—The petitioners have been convicted u/s 352, Penal Code, and they have been sentenced to rigorous imprisonment for two months each. It appears that 28 persons were originally put on trial, of whom only 9 were convicted by the trial Magistrate of various offences. These 9 persona appealed to the learned Sessions Judge, and on appeal 7 of them were acquitted. Only the two petitioners were convicted u/s 352, Penal Code. The charges against the petitioners were under Sections 147, 379 and 353, Penal Code. The facts shortly stated are the following:

Mahabir Mahto and seven other persons were wanted in a case under Sections 143, 380 and 342, Penal Code. It was stated that they were absconding and on 22-5-1945 the learned Sub-Divisional Magistrate had directed the issue of processes under Sections 87 and 88, Criminal P.C., against these persons. On 31-5-1945 Mahabir and two other persons surrendered in Court, and the learned Sub-Divisional Magistrate ordered their release on bail. They were released on bail of Rs. 500 each. Then on 8-6-1945 an Assistant Sub-Inspector of Police along with certain other chaukidars and dafadars went to the house of Mahabir Mahto and wanted to attach certain moveable properties. Mahabir''s father, Sukan, as well as his brother, Gurucharan, one of the petitioners before me, objected to the attachment of the properties by the Assistant Sub-Inspector of Police. They resisted the seizure of the goods and this led to an assault in which, it is said, the petitioners hit a constable called Baldeva Singh.

The learned Sessions Judge has come to the following findings: he has, firstly, found that the police party had no right to make the attachment on 8-6-1945 inasmuch as the person against whom the process u/s 88, Criminal P.C., had been issued had already surrendered in Court on 31-5-1945 and had been released on bail; he has further found that the Assistant Sub-Inspector of Police, who headed the police party, was not acting in good faith, because he knew the process of attachment had been superseded by the subsequent events which had occurred, namely, the surrender of Mahabir in Court and his release on bail; he has also found that the process of attachment was defective in other respects. On these findings the learned Sessions Judge has acquitted the accused persons of the charges under Sections 147, 379 and 353, Penal Code. He has, however, convicted the two petitioners of the offence u/s 352, Penal Code, relying mainly on a decision of the Allahabad High Court in Emperor Vs. Shib Lal, .

It is contended before me on behalf of the petitioners that on the findings arrived at by the learned Sessions Judge, their conviction u/s 352, Penal Code, is bad in law. In my opinion, this contention is correct and should be upheld. Once it is found that the police party had no right to seize the moveable goods of Mahabir Mahto and that they were not acting in good faith under colour of their office, the protection afforded by Section 99, Penal Code, disappears. If that protection disappears, then Guru Charan, brother of Mahabir, and Sukan, his father, were entitled to resist the seizure of their goods. It may be noted here that Guru Charan, Sukan and Mahabir were joint. Even if the process of attachment were otherwise valid and in force, property belonging to the joint family of Guru Charan Mahabir and Sukan could not be seized in execution of that process. This case, however, stands on a much better footing in view of the findings of the learned Sessions Judge. The process of attachment was not subsisting at the time and the police party had no right to seize the property of any one of the three persons--Guru Charan, Mahabir and Sukan. As I have stated above, these three persons had therefore every right to resist the unlawful seizure of their goods. If the police party persisted in the unlawful seizure, these persons could use minimum force to prevent such unlawful seizure of their goods. The same view has been expressed in a decision of this Court in Gopi Mahto v. Emperor AIR 1932 Pat. 66.

For the reasons given above the conviction of the petitioners must be held to be bad. The application is allowed and the conviction and sentence passed against the two petitioners are set aside. The petitioners will now be discharged from bail.