Ramji Ahir vs Emperor

Rowland, J.—The petitioner has been convicted u/s 332 arid sentenced to rigorous imprisonment for three months by a First Class Magistrate and his appeal to the Sessions Judge has, been dismissed.

The facts found are that Writer Head Constable Sher Khan with other constables went to the family, residence of the petitioner to execute a warrant of attachment u/s 88, Criminal P.C., which had been issued by the Court of a Magistrate to enforce the, attendance of the father of the petitioner. The Head Constable affixed the proclamation u/s 87, and after giving the ladies of the household an opportunity to retire took possession of the house. He and his men were'' going to remove the doors and door frames of the house when the petitioner with his brother Lachman came and abused the police party and resisted them, with the result that blows were exchanged, the petitioner as well as the: Writer Head Constable receiving injuries.

It is contended that the police officers were, not acting lawfully in removing or attempting to remove the doors and. door frames. It is said that the property attached being a house was immovable property and the doors and door frames were similarly immovable. Now the doors of a house so far as I know have never been considered anything else but part of the furniture of the house and moveable property, but the frames, if embedded in the walls or floor, are, I should think, to be considered immovable and accordingly the action of the police officers in digging the walls or floors to remove them does not seem to be technically correct.

I am of opinion therefore that the action of the petitioner did not amount to an offence u/s 332, I.P.C. No case exactly on all fours has been cited but I may refer to Emneror v. Mukhtar Ahmad [1915] 37 All. 358. In this case there were serious irregularities in connexion with a house search and the accused assaulted and beat a constable. The lower Court convicted the accused u/s 332, I.P.C., but it was held in revision that conviction should only be recorded u/s 323.

For the petitioner in the present case it has been argued that he had a right of private defence, but u/s 99, I.P.C., there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt if done or attempted to be done by a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law. The result is that the conviction u/s 332 is altered to a conviction u/s 323.

Finally it is contended that the sentence of three months'' rigorous imprisonment is excessive. In the circumstances of this case, the petitioner will pay a fine of Rs. 60 in default one month''s rigorous imprisonment: That I consider is sufficient punishment.