Pichit Lal Misser vs Emperor

Rowland, J.—This is an application to set aside the conviction of the petitioner u/s 186, Indian Penal Code, and sentence of fine of Rs. 100 imposed by a Second Class. Magistrate and confirmed on appeal by a First Glass Magistrate having appellate powers.

The petitioner Pichit Lal Misser was assessed to pay Income Tax for realisation of which with interest and costs a certificate was issued and a distress warrant sent through peon Amir Singh. He attached one bullock of the petitioner which he left in the custody of Chandra Kumar as surety and reported to the certificate officer. A second peon named Moinuddin was then sent to realise the amount under warrant by sale of the first bullock and failing that by attachment and sale of other properties. Chandra Kumar, the surety, denied that he had received charge of the former bullock or stood surety. The peon then attached two bullocks belonging to the petitioner and the petitioner forcibly prevented their removal. These are the facts found concurrently by the two Courts and we have to consider the petitioner''s application for revision and also a rule which has been issued upon him by this Court to show cause why the sentence should not be enhanced.

The contention on his behalf is that on the terms of the order of the certificate officer to the peon the peon was not justified in attaching two bullocks of the petitioner until he had sold the bullock formerly attached and failed thereby to realize the amount of the warrant. It has been pointed out that the bail bond of Chandra Kumar (Ex. 2) contains an undertaking by the surety to be personally responsible for the entire demand should he fail to produce the bullock and it has been argued that the surety was the person against whom the peon should have proceeded in the first instance. The order of the certificate officer, however, was a peremptory order to realize the demand by attachment and sale of other properties if it was not realized by sale of the attached cattle. As I understand it the order to attach and sell other properties was to be acted on if from any cause whatever the peon found it impossible to realize the demand by sale of the attached cattle. I am of opinion, therefore, that the peon was acting within the directions given to him with the warrant and that the petitioner had no justification in obstructing him in the performance of what was his public duty. Under the circumstances there is no doubt that the conviction u/s 186, Indian Penal Code, must be maintained and the petitioner may be considered fortunate in not having been convicted u/s 183, Indian Penal Code, which provides a more serious punishment for resistance to the taking property by the lawful authority of a public servant.

Coming now to the question of sentence it has been argued. before us that the sentence should not be enhanced as the petitioner may be the victim of circumstances. It is possible that the bailor was not, as the Magistrates may have thought, in collusion with the petitioner but had defrauded him. While this explanation of the course of events appears to be not entirely impossible it does not seem very probable, nor does it appear to have been put forward before either the trial Court or the lower Appellate Court. The possibility is, however, a circumstance to which we should have regard in considering the amount of sentence. We have considered whether a substantive sentence of imprisonment should be imposed and have decided that it is unnecessary but that the sentence of fine should be certainly not less than equal to the amount of the distress warrant execution of which was resisted. The sentence of fine will, therefore, be enhanced to Rs. 150, the imprisonment in default to be as awarded by the lower Appellate Court.

Courtney-Terrell, C,J.

I agree.