Murugappa Naicker vs Rex

Krishnan, J.—This is an application to set aside an order passed by the District Munsif of Conjeevaram u/s 476, Criminal Procedure Code,

directing the prosecution of the petitioner before me u/s 186 of the Indian Penal Code. It was held by the District Munsif that the petitioner

obstructed an Amin of his Court in the lawful discharge of his public functions by pulling him by the hand when he went to deliver possession of a

certain shop to the decree-holder in O.S. No. 189 of 1922 on the file of his Court. The Amin no doubt had a warrant for delivery of possession of

the shop to the decree-holder, and no doubt it may be, as the Munsif says, that some obstruction was offered to the Amin in delivering possession

of the shop. That is a matter which will have to be decided later if necessary; but, for the purpose of the present case, I will assume that such

obstruction was offered by the petitioner before me.

The point taken before me is that, in doing so, he committed no offence whatsoever as the Amin was not acting in the lawful discharge of his

duties inasmuch as the warrant issued to the Amin was an illegal warrant. On a previous occasion an application had been made by this very

decree-holder to get delivery of possession of the shop in question and the Amin had gone to the shop and there he had been obstructed by this

petitioner. On that occasion, the Amin reported that delivery was obstructed by the petitioner, and thereupon the District Munsif had rejected the

application of the decree-holder. What the decree-holder should have done on that was to have applied under Order 21, Rule 97 for an order to

remove the obstruction and to deliver possession of the property but, instead of doing that she kept quiet but subsequently applied after more than

a month had elapsed for a second order for delivery. When it was pointed out to her that her previous application failed because obstruction had

been offered by a third party, that is the petitioner, her (decree-holder''s) vakil himself asked that an order for symbolical delivery might be given to

him and that he did not want an order for express and actual delivery. When this was the decree-holder''s request; the warrant to the Amin to

deliver actual possession seems to have been drawn up erroneously. The warrant was there-fore illegal in this respect.

Again, when the warrant was taken out to be executed by the Amin, it was perfectly open to the petitioner, he being a person in possession of

the property and not bound by the de-tree to have obstructed and such an obstruction could not be treated as an unlawful obstruction to the

exercise of a lawful authority by a public servant. [See In Re: Appasami Mudali and Others, , King-Emperor v. Gopalaswami ILR (1902) M 729

and Gahar Mahammed Sarkar v. Pitambar Das 22 CWN 814.] I therefore hold that no offence u/s 186, Indian Penal Code, has been committed.

The order u/s 476, Criminal Procedure Code, must therefore be quashed.

Before parting with this case, I must observe that the way in which the District Munsif disposed of it seems to be very un-satisfactory. He seems

to have hurried through the case without granting the reasonable adjournment asked for by the petitioner apparently because he wished to dispose

of the case himself before he might be transferred to some other place. It is said that he was then under orders of transfer, which was subsequently

cancelled. An affidavit was filed before him by the petitioner and in the circumstances disclosed in that affidavit he should have taken greater care in

the disposal of this case than he really did.

The Revision Petition is allowed and the order u/s 476, Criminal Procedure Code, is set aside.