Queen -Empress vs Tiruchittambala Pathan

Shephard, J.—The question is whether a person charged u/s 183 of the Indian Penal Code was rightly acquitted, on the ground that the

prosecution failed to prove that the goods seized by the Amin and rescued by the accused were, as being part of the assets of the deceased

debtor, liable to be taken in execution of the decree against his representatives. The question is whether the seizure of the goods was an act done

by the lawful authority of a public servant within the meaning of Section 183. It was argued on behalf of the accused that no offence had been

committed in resisting the Amin, because he was acting unlawfully in seizing goods, which could not properly be taken in execution. The Amin,

being commissioned to take the goods of the deceased debtor, forfeited the protection of the law, when he proceeded to take the goods of the

defendant himself, although he might have acted in good faith.

It appears to me that, in construing Section 183, the language of Section 99, as well as that of other Sections concerning resistance to the acts of

public servants, must be borne in mind. Section 99 declares that the protection afforded by the Penal Code to public servants noting in good faith

under colour of their office is not lost to them, by reason of any mistake on their part in the exercise of their proper functions. A public servant may

do an act of a kind which he has no authority to do. In such case, he could not be acting in discharge of his public functions ( Sections 186-353

and the lawful authority required by Section 183 would be clearly wanting. The cases cited in argument afford instances Lilla Singh v. Queen-

Empress ILR 22 Cal . 286 Queen-Empress v. Tulsiram ILR 13 Bom. 168 . Whether or not the public servant in the case supposed could, if

charged with any offence, shelter himself under the exceptions enacted in Sections 78 and 79 of the Code would depend upon the circumstances.

If, on the other hand, the act of the public servant; is an act of the kind which the public servant is authorized to do, it is clear that no miscarriage

on his part, due to an honest mistake of fact, could render him liable to a prosecution. Section 79--Nothing is an offence which is done by any

person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be

justfied by law in doing it would afford him protection. Furthermore, resistance to such an act or an assault on the public servant in the course of

doing the act is made punishable u/s 183 and Section 353 of the Code; respectively. We are asked to draw a distinction between Sections 183

and 186 and to say that there may be obstruction entailing punishment under the latter Section, although the lawful authority which Section 186

presupposes is absent. It occurred to me at first that there might be some such distinction intended and that if the act of taking exposed the public

servant to a civil action, it could not be said to be an act done by lawful authority. Ministerial officers do not enjoy the full protection which is

granted to judicial officers by Act XVIII of 1850. Apart from considerations of civil liability, however, I think the object of the Legislature as

shown in the Code was to facilitate the transaction of public business by affording protection in two ways to public servants acting in the exercise

of their duty. They are protected from criminal proceedings by Sections 78 and 79. They are insured against resistance by Section 99 and other

Sections of the Code. The intention was to give protection of this latter kind in all the cases in which, but for the immunity specially provided, the

act of the public servant would amount to an offence. The phrase ""lawful authority"" used in Section 183 does not oblige us to hold that the cases in

which the person charged may have a civil action against the public officer must be excluded from the operation of the Section, in the present case,

the Amin had lawful authority to take in execution the goods of the deceased. There was no mistake about his authority, but the mistake was in the

mode in which he executed his duty and the Section does not require that the execution of the authority, as well as the granting of it, must be strictly

lawful. To hold that a judgment-debtor might with impunity resist the seizure of goods found in his house, on the mere plea that they belonged to

somebody else, honesty and good faith on the part of the attaching officer being presumed, would reduce Section 183 to a dead letter. The

decided cases support the view which I have adopted.

The acquittal must be set aside and the case disposed of according to law.

Subramania Ayyar, J.

A decree was passed against the sons (minors) of one deceased Saminatha Pathan, son of the accused, for a debt due by Saminatha. The

minors were under the guardianship of the accused. In execution of the above decree, a warrant was issued for the seizure of certain articles of

moveable property of the deceased debtor. When, with this warrant, the Amin went to the accused''s house, where the articles were stated to be

and had a plate seized, the accused, it is alleged, forcibly wrested the plate and threatened to use violence, if the Amin proceeded further with the

execution of the warrant.

Now, supposing that the plate did, in fact, belong to the accused himself as urged by him, the question is whether that circumstance alone

rendered the seizure by the Amin an act done without "" lawful authority,"" within the meaning of Section 183 of the Indian Penal Code, so as to

make the alleged resistance on the part of the accused permissible in law.

The argument in favour of the accused was in substance this: an officer in executing a process of law acts lawfully, only so long as he keeps

himself strictly within the directions contained in the process under which he acts. Consequently, when the Amin took the plate which, in fact, did

not form part of the estate of the debtor, the former was a wrong-doer and resistance to him was not unlawful, even though the Amin Was not

aware that the property did not belong to the deceased and even though the officer acted bona fide. This view of considering an act, which is done

by a public servant in the course of his duties and which is not in every way perfectly consistent with what he should have done in the particular

case, to have been committed without "" lawful authority "" has clearly not been adopted in the Indian Penal Code, as will be seen from the

provisions of Section 99, with which Section 183 should be read. Taking the two together, the reasonable construction to be put is that, if the

officer acted in good faith under colour of his office, the mere circumstance that his "" act may not be strictly justifiable by law "" cannot affect the

lawfulness of his authority. and the chief reasons for this view are that the likelihood of serious injury resulting from such acts (excepting those

tending to cause apprehension of death or grievous hurt) of persons clothed with public authority and subject to public responsibility is so small that

the parties, whose rights are thus invaded, would be sufficiently protected by their being left to obtain redress solely by appealing to the constituted

authorities in due course and that, in such cases, to secure an easy and peaceful execution of legal processes, it is necessary that recourse to self-

help on the part of the persons affected should be disallowed. It may not be out of place to observe that in England also, for like reasons, a similar

conclusion was arrived at in Regina v. Allen Stephen''s Digest of the Criminal Law 4th Ed. p. 390. Referring to the contention that the illegality of

the arrest in question there reduced the offence to manslaughter, BLACKBURN, J., said: "" It was further manifest that... they know well that, if

there was any defect in the warrant or illegality in the custody, that the Courts of law were open to an application for their release from custody.

We think it would be monstrous to suppose that, under such circumstances, even, if the Justice did make an informal warrant, it could justify the

slaughter of an officer in charge of the prisoners or reduce such slaughter to the crime of manslaughter. To cast any doubt upon this subject would,

we think, be productive of the most serious mischief by discouraging the Police in the discharge of their duties and by encouraging the lawless in a

disregard of the authority of the law."" (Mayne''s Criminal Law of India at page 426). Nor is the circumstance that the irregularity of the particular

act of the officer is such as to give rise to a cause of action against him material, since the provisions of Section 90 already referred to are not

limited only to such acts "" not strictly justifiable by law "" as do not furnish ground for a civil action.

The cases of Queen-Empress v. Ramayya ILR 13 Mad. 149 and Bhawoo Jivaji v. Mulji Day at ILR 12 Bom. 377 fully support our conclusion.

Regina v. Gazi Kom Aba Dore 7 Bom. H.C. Rop Cr. 83 relied upon by the Second-class Magistrate is distinguishable from the present case.

There the officer altogether transgressed his powers in breaking open the outer door, which be was not entitled to do, except on conditions that

were not shown to have existed. Here, however, the Amin did not transgress any established rule of law as to the limit of his powers, but acted

erroneously with reference to a matter, which no doubt rendered the particular act invalid, but did not affect the natue of his authority.

I agree, therefore, that the acquittal of the accused should be set aside. The case must be restored to the file and disposed of according to law.