Jairam Sahu and Others vs Emperor

Ross, J.—Petitioners Nos. 1 to 3 have been sentenced on appeal to two months'' rigorous imprisonment each u/s 353 of the Indian Penal Code, and petitioners Nos. 4 to 6 to six weeks under the same Section. The case for the prosecution was that, on the.20th June 1922, a market was being held at Pathalgaiha, and that the petitioners Nos. 1 to 3 with other shop-keepers were keeping a stall jointly. The Sub-Inspector of Gidhour Police Station appeared with a warrant for the realisation of Income Tax from petitioner No. 1. Petitioners Nos. 2 and 3 were present and the Sub-Inspector attached a bag of money which was lying in front of them in execution of the warrant. The petitioners Nos. 2 and 3 protested that it was their money and that the Sub-Inspector had no right to take it. A disturbance followed and the Police Officer and the party accompanying him retired; a mob collected and chased them, but no personal injury was inflicted. The defence was that the warrant was illegal and that in executing it the Sub-Inspector could not be said to be a ''public servant'' executing his duty as such. It was further urged on behalf of the accused that the petitioners Nos. 2 and 3 were sepa, rate from petitioner NJ, I, and that, even if the warrant was good, the Sub-Inspector was not entitled to take their money. The warrant is a distress warrant issued by the Income Tax Collector on the 3rd April 1922. It is in the old form and purports to be u/s 26 of Act VII of 1918. The new Act (XI of 1922) came into force on the 1st April, and the corresponding section is Section 46. That section describes the mode of removing Income Tax. The Collector may on receipt of a certificate from the Income Tax Officer recover the amount specified therein as if it were an arrear of land revenue, and n areas notified by the Commissioner arrears may also be recovered by any process enforceable for the recovery of an arrear of any Municipal tax or Local rate. This latter provision corresponds to Section 36(4) of the old Act, except that there the local Government is the authority in place of the Commissioner. In Mazumdar''s "Commentary on the Law of Income Tax" published in 1922, it is stated that no order, had been issued by the lieutenant-Governor of Bihar and Orissa in Council u/s 36(4) and it was intended that the Collector should recover arrears by his own agency and not by the Muicipality. No orders passed by the Commissioner u/s 46, Clauses (3) and (4), have been produced, and it would appeal that this arrear of Income Tax should have been recovered as if it had been an arrear of land revenue. But even supposing that a d stress warrant could legally be issued, the Collector had, in my opinion, no authority to issue it to an Officer of the Police and the Police Officer executing such a warrant could not be said to be acting in execution of his duty as a Police Officer. On this ground, therefore, the charge u/s 353 must fail.

There is a defect in the judgment in this case, in that no finding has been come to as no whether petitioners Nos. 2 and 3 were separate from petitoner No. 1 against whom the warrant was issued. It appears from the judgment of the Judicial Commissioner that one of the prosecution witnesses had agreed with the defence evidence on this point; and if it was a fact that the money belonged to the petitioners Nos. 2 and 3 and that they were separate from petition No. 1, then, clearly, the seizure of the money was illegal. The petitioners could not be vonvicted without a finding on this part of the case. On both these grounds, therefore, 1st aside the conviction and sentence passed on the petitioners and direct that they be acquitted and released from bail.