Sukar Sao and Others vs Emperor

Shearer, J.—The petitioners have been convicted under Sections 147 and 853, Penal Code and, under the former section, they have been sentenced to pay a fine of Rupees 75 each; under the latter, no separate sentence has been imposed.

On 9th August 1910, one Rameshar Lal, who is the next door neighbour of the petitioner Sukar Sao, and a well-to-do merchant of Warsaliganj, lodged a petition in the Court of the Sub-Divisional Magistrate at Nawada. In this, he complained that Sukar Sao was about to close a drain, through which he had been in the habit of discharging the rain-water from his house. The learned Sub-Divisional Magistrate directed that a proceeding u/s 147, Criminal P.C., should be instituted. He also made the following order: "Local Police to see that the status quo is maintained." A copy of this order was apparently given to Rameshar Lal immediately after it was passed, and, armed with it Rameshar Lai went" to the Police Station at Warsaliganj later on the same day. The Sub-Inspector instructed the Assistant Sub-Inspector to go to the house of Sukar Sao and see what was happening. The Assistant Sub-Inspector found that the drain had ceased to exist and that water had accumulated in the gola of Rameshar Lal. The indications were that there had been a drain running through the khand of Sukar Sao and that this drain had been closed and a wall constructed over it. The Assistant Sub-Inspector proceeded to have the wall demolished and the drain reopened. It may be said that he had not only taken a couple of constables along with him, but a number of other men, several of whom had khatis and proceeded to use them. Sukar Sao and some of the rather considerable body of persons, who had collected, protested at what the Assistant Sub-Inspector was doing or proposed to do, and manifested an intention of stopping him, if necessary, by force. The Assistant Sub-Instpecfcor thereupon desisted, and, taking Sukar Sao and another of the petitioners in the Police Station, recorded a first information.

Now, it is clear that the Assistant Sub-Inspeetor had no authority to enter on the premises of Sukar Sao and demolish & wall and re-open a drain, even if the result of the closing of the drain was that a certain amount of damage was likely to be done to the property of Sukar Sao''s neighbour, Rameshar Lal. The Sub-Divisional Magistrate had not authorised the Assistant Sub-Inspector to do what he did, and, even if he had so authorised him it is very doubtful if his order would have been a proper and legal one. The Courts below appear to have thought that the provisions of Section 99, Penal Code, applied to the case.

In this however they were clearly in error. In Moinuddin v. Emperor AIR 1921 Pat. 415 it was pointed out that the words "not strictly justified by law" applied to cases in which there was an excess of jurisdiction as distinct from a complete absence of jurisdiction. Moreover, in this particular case, it is scarcely possible to say that the Assistant Sub-Inspector acted in good faith. On his own admission, he did not understand the meaning of the expression "status quo" which was used by the learned Sub-Divisional Magistrate and did not take proper steps to ascertain what exactly the learned Sub-Divisional Magistrate intended him to do.

The petitioners were, in my view, clearly entitled to resist the attempt made by the Assistant Sub-Inspector and the men, who were with him, to demolish the wall and re open the drain in their premises. That being so, they did not'' commit the offences of which they have been convicted. The rule will, therefore, be made absolute, the convictions and sentences will foe set aside and the fines, if already paid, will be refunded.