Mahabir Sah and Others vs Emperor

Dhavle, J.—The petitioners have all six of them been convicted of an offence u/s 206, Penal Code, and sentenced to two months rigorous imprisonment each.

Two of them, Ramrekha and Chanderdeo, have also been convicted of an offence u/s 186, Penal Code, and fined Rs. 25 each with one month''s further imprisonment in default. This was in connexion with the attachment of a sugarcane crop growing on 9 plots of land in three different places adjoining one another in execution of a decree obtained against the principal petitioners Mahabir Sah and Narsing Sah. Gokhul Thakur, a civil Court peon, was sent out to execute the warrants of attachment under Order 21, Rule 30, Civil P.C., (in Form No. 8 of Appendix E in Schedule 1 of the Code). As the judgment-debtors refused to pay, he attached the crops on 25th December 1938, and remained on the scene to "hold" them as directed in the writs. On 1st January the petitioners Ramrekha and Chandradeo, sipahis of the judgment-debtors, began to cut the crops in spite of the peon''s protests. The peon made a report to the Munsif, as a result of which a constable was deputed to help the peon. In spite of remonstrances by the peon and the constable, the petitioners went on with the cutting of the crops till 6th January, and removed the crops too. For this offence they were charged u/s 206. The charge u/s 186 was framed in respect of obstruction voluntarily offered to the civil Court peon "in the discharge of his public function" in watching the attached crops. It is difficult to see why the petitioners were charged with an offence u/s 206 and how they were found guilty of it. The section runs:

Whoever fraudulently removes, conceals... and property... intending thereby to prevent that property... from being taken in execution of a decree... shall be punished with imprisonment of either description, etc....

This clearly makes fraudulent removal or concealment a matter of the essence of the offence. But the prosecution story is that the petitioners forcibly cut the crops and removed them in spite of the remonstrances of the peon and the constable; and there is no trace of any fraudulent removal or concealment in it. This escaped the notice of the Magistrate who tried the case and also of the Magistrate who heard the appeal. The conviction under this section must plainly be set aside. The charge u/s 206 was also carelessly framed and tried in respect of the dates, which were repeated in the charge u/s 186, namely "between the day of 1st September and day of 6th September 1939." How these dates came to be mentioned is also difficult to understand, for the warrants of attachment were only issued in December and the story is that the peon was obstructed in January 1939, from the 1st to the 6th, and nothing of any importance that could'' have happened between 1st and 6th September, was mentioned at the trial.

The real difficulty however about this charge is that it has been so widely framed--framed against all the six accused and in respect of all six days--and yet it is impossible to gather from the judgments of the lower Courts in respect of which of these days Ramrekha and Chanderdeo alone out of the six accused were found guilty. The evidence does not seem to have been specifically considered in respect of any particular dates or offenders, and I am not by any means satisfied that it was even recorded with reference to these considerations, though the removal of the crops from the first to the last day formed one simple transaction. In his statement of facts for instance, the trying Magistrate speaks of the constable going to the spot on 2nd January 1939,

but the accused persons continued in their act of removal of the sugarcane from the attached fields, in spite of remonstrance by the peon and the constable who were threatened with violence and pushed away.

Was it then an incident of 2nd January of which the Magistrate intended to find Ramrekha and Chandradeo guilty u/s 186? If so, it is by no means clear from the evidence of the constable, as recorded by the Magistrate that he supports the peon''s story. Several reports and diaries of the peon were proved by the constable as written by the peon and signed by him, but the Magistrate should have known that this could hardly be treated as evidence from the constable in support of the peon''s story in detail. There has thus been no proper consideration of any obstruction offered by the two petitioners in question on any particular day. Even more serious is the fact that the Courts below--not only the second class Magistrate who tried the case but also the Magistrate who heard the appeal--failed to notice that under Sub-rule (2) of Rule 45 of Order 21, Civil P.C., the judgment-debtors were at liberty, notwithstanding the attachment, to cut, gather and store the produce, in default of any conditions imposed, or orders passed, by the civil Court to the contrary. This did not of course entitled them and their men to take the produce away, as is shown by Sub-rule (3) of the same rule which provides that

agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

The peon had not been given copies of the warrants of attachment to affix on the land and on the outer door of the judgment-debtors'' residence, and was therefore unable to comply with the requirements of Rule 44, a matter which will doubtless be looked into by the District Judge. The warrants of attachment were however brought to the notice of Mahabir first, and it was on his refusal to pay that the peon went round the fields proclaiming the attachment by beat of drum.

The peon, further, stayed near the fields after the informal attachment and appears from his report to have shown the warrants to his opponents when protesting, against their cutting of the sugarcane. The warrants directed him to hold the attached property, in default of payment, until further orders. The peon''s custody was thus plainly operative in law.

If, in these circumstances, the judgment-debtors and their men not only cut and gathered the produce as they were entitled to do under Sub-rule (2) of Rule 45, but also took the cut sugarcane away, I should have thought that their offence would on the face of it have been taken to be theft. They were however not charged with this offence, and it does not improve matters for them that in committing this offence they obstructed the peon in the discharge of his duty of holding the crop.

On the finding of the lower Courts that the accused acted "in a most defiant and high-handed manner and showed an utter disregard for the Court''s order," it is clear that this is a case which, not having been properly tried at all, ought to be retried.

The application in revision is accordingly allowed, and the order of the trying Magistrate which was upheld by the Magistrate with appellate powers set aside. But it must be further directed that the accused be retried by some competent Magistrate to whom the District Magistrate may transfer the case.

If at the fresh trial it should be established that there was obstruction offered to the peon in the discharge of his duties, the Magistrate, whoever it may be, might consider the propriety or otherwise of treating this, and treating it lightly, separately for the purpose of punishment from the appropriation of the crop in defiance of the attachment, which would appear to be the object of the obstruction.