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State Vs. Babulal Gaurishanker Misar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 257 of 1956
Judge
Reported inAIR1957Bom10; (1956)58BOMLR1021; 1957CriLJ48; ILR1957Bom80
ActsCode of Criminal Procedure (CrPC) , 1908 - Sections 423; Indian Penal Code (IPC), 1860 - Sections 186
AppellantState
RespondentBabulal Gaurishanker Misar and ors.
Appellant AdvocateGovt. Pleader,
Respondent AdvocateS.G. Samant, Adv.
Excerpt:
.....been guilty of undermining the authority of the court. therefore, if an accused person has committed an offence within section 186 of the code, he would seem to have committed also an offence of contempt of court. - - ' if this is, the conclusion of the learned magistrate upon the evidence, we fail to see how the case would not fall within. if this is the view of the learned magistrate, we fail to see how it would follow that the respondents have not committed the offence......their possession for it long time. the statement of accused 1 and 3 was in a similar sense.5. the learned magistrate acquitted the respondents of the offence, holding that the evidence proved that the bailiff voluntarily desisted from giving possession after the accused gave in writing their resolve not to part with their land, and that accordingly no offence under section 186, penal code was committed. he concluded the judgment by observing that the respondents would, at the most, be liable for contempt of court and no more. feeling aggrieved by this order of acquittal, the state has come up in appeal.6. upon this appeal, the learned government pleader has argued that the learned magistrate was wrong in taking the view that the present case was not covered by section 186, penal code......
Judgment:

Dixit, J.

1. This is an appeal by the State against the acquittal of the accused upon a complaint filed against them for an offeuce punishable under Section 186, Penal Code. The facts leading upto the prosecution of the accused may he shortly stated.

2. There is, in the village Chandor of the Chandor Taluka of the Nasik District, a field bearing survey No. 131 pot Ilissa No. 1 admeasuring 40 acres and 19 gunthas (pot kharab 34 gunthas) and assessed at Rs. 31-1-0. According to the present record, the land is survey No. 131 pot hissa No. 1A admeasuring 27 acres and 26 gunthas (pot kharab 28 gunthas) and assessed at Rs. 21-4-0. This land originally belonged to accused 1 to 3 who sold it on 12-12-1936 to one Dhanji Damodar Sonje of Chandor for Rs. 2500.

The property was subsequently given by Dhanji to accused 1 who passed a writing by way of a lease on 14-6-1939. As agreed to in the rent note, accused 1 did not give possession to Dhanji who filed a Civil Suit (No. 377 of 1943) against accused 1 for possession and on 3-3-1944 obtained a decree in his favour.

3. On 4-10-1949 Dhanji filed a Darkhast (No. 1 of 1949) to execute the decree and in that darkhast a notice was issued to accused 1. In obedience to the notice accused 1 appeared before the Court and filed an application to the Court that there was litigation between him and the decree-holder and that the darkhast might be kept pending till the decision of that litigation. The litigation ended in favour of the decree-holder and in appeal the decision was confirmed on 17-12-1952,

On 24-7-1953 Dhanji applied to the Court, requesting that the darkhast be proceeded with and on 10-8-1953 the Court ordered to issue a warrant for possession. A warrant was issued and sent for execution, and at this time accused 2 and 3 obstructed the plough by standing before the plough and by taking out the yoke pins and driving the bullocks out of the field. They gave in writing their obstruction on 25-8-1953. Tin's was the first obstruction.

There was also a second obstruction and then on 10-2-1954 upon a warrant being issued for possession against accused 1 to 3, they again obstructed execution by standing before the plough and taking out the yoke pins and driving away the bullocks out of the field by beating them. This last obstruction is the subject-matter of the present complaint which was filed against the respondents for an offence under Section 186, Penal Code.

At the trial, the decree-holder examined Bailiff Rama, a panch witness by name Shankar and himself. He also relied upon a writing which was an endorsement upon the warrant for possession, signed by accused 1, 2, and 3, The defence cited three witnesses including' a police patil.

4. Accused 2 filed a written statement in which he denied that they offered any obstruction. In para 10 of the written statement it was stated that he told the party, from the Bandh that possession should not be taken of the field since the field was in their possession for it long time. The statement of accused 1 and 3 was in a similar sense.

5. The learned Magistrate acquitted the respondents of the offence, holding that the evidence proved that the bailiff voluntarily desisted from giving possession after the accused gave in writing their resolve not to part with their land, and that accordingly no offence under Section 186, Penal Code was committed. He concluded the judgment by observing that the respondents would, at the most, be liable for contempt of Court and no more. Feeling aggrieved by this order of acquittal, the State has come up in appeal.

6. Upon this appeal, the learned Government Pleader has argued that the learned Magistrate was wrong in taking the view that the present case was not covered by Section 186, Penal Code. Since this is an appeal from an acquittal, we would not be justified in interfering with the order of acquittal unless there were compelling reasons for us to do so. If upon the evidence the learned Magistrate has come to a conclusion which is justified, then it would not he open to us to interfere with the order of acquittal.

To begin with, it will be convenient to mention in his own words the view taken by the learned Magistrate of the evidence in the case. At page 43 of the record the learned Magistrate observed in the course of his judgment as follows;

''It is true that they resisted the delivery, of possession by words and objected to the execution of the warrant and the bailiff accepted this objection and asked to give in writing and therefore returned the warrant unexecuted.'

If this is, the conclusion of the learned Magistrate upon the evidence, we fail to see how the case would not fall within. Section 186. It may be observed that the conclusion of the learned Judge was that there was resistance by the accused to the delivery of possession by words and the accused objected to the execution of the warrant.

But the learned Magistrate persuaded himself to conclude that in spite of this conclusion all that happened was no more than that the bailiff voluntarily desisted from giving possession. In our view, this conclusion is unsupportable, and we propose to indicate our reasons briefly why we say so.

7. The writing which was given by accused 1 to 3 was in the following words;

'We Babulal Gaurishankar (accused 1), Ram-prasad Gaurishankar (accused 2) and Godubai Gauri-shankav (accused 3) do hereby give written obstruction to the possession that while the police patil, police and panchas came to take possession of the land wo all came in front of the plough, took out yoke pins, and beat the bullocks by sticks and drove them away out of the field. We will not allow to take possession. You do whatever you can. This is our obstruction to the possession. We pass this written obstruction.'

This writing is attested by Shankar, the panch who has been examined in this case. It is signed by Babulal and Ramprasad, accused 1 and 2, and it bears the left hand thumb mark of Godubai, accused 3. The learned Magistrate said, with respect to this writing, that the writing was a formal endorsement carrying no significance. He also said that the alleged obstruction was only a form and not of substance.

It is difficult to follow this reasoning in view to the Magistrate's own conclusion that there was resistance to the delivery of possession and the respondents objected to the execution of the warrant, and we think it will not be uncharitable to suggest that the learned Magistrate was in two minds. Otherwise, it is difficult to follow his conclusion at page 43 which has been set out above and to follow his conclusion at the end of his judgment which was that the bailiff voluntarily desisted front giving possession.

Whatever that may be, it would be necessary to notice the evidence in the case. (After discussion of the evidence the judgment proceeds:)

8-9. Mr. Samant appearing for the respondents has contended that this being an appeal against an acquittal, we should not lightly interfere with the order of acquittal made by the lower Court. In our view, Mr. Samant is right in his submission. But what is overlooked is that the learned Magistrate has come to what one may fairly describe as inconsistent conclusions upon the main point in the case. 'On the evidence, there is no question that there was an obstruction by accused 1 to 3. Accused 3 stood in front of the plough, accused 1 and 2 took out the yoke pins, beat the bullocks and drove the bullocks away. If this is the state of evidence, it is difficult to understand how one can reach the conclusion that the bailiff voluntarily desisted from giving possession. Accused 2 suggested in his written statement that while standing on the Bandh i.e. the boundary of the field, he stated that he would not give possession. But we think that the defence is untrue.

The defence is certainly inconsistent with the probabilities of the case. Here is a decree-holder who, accompanied by a bailiff and a panch went to the field of accused 1 to recover possession from the judgment-debtor. The judgment-debtor was present in the field and it is idle to suggest that the judgment-debtor would stand upon a Bandh and while standing upon the Bandh, he indicated his protest against giving possession.

Mr. Samant contends that the writing was only a formal writing, but the difficulty in accepting the contention of Mr. Samant is that the writing is preceded by what happened shortly before the writing look place and the writing records the transaction as it took place. For that, the evidence is, so think, quite clear. The learned Magistrate was, therefore, wrong in coming to the conclusion that the endorsement upon the warrant for possession was merely a formal writing. In the result we accept the evidence led on behalf of the prosecution and hold that there was obstruction within Section 186.

10. The learned Magistrate appears to have taken the view that to constitute 'obstruction' within Section 186 there must be use of criminal force and mere threats or threatening language is insufficient and in support of that view, he relied upon a decision of the Lahore High Court reported in --. 'Mt Darkan v. Emperor' AIR 1928 Lah 827 . In our opinion, this view appears to us to be entirely wrong.

To constitute 'obstruction' within Section 186 it, is hot necessary that there should be actual criminal force. It is sufficient if there is either a show of force or threat or any act preventing the execution of the process of the civil Court. The learned Government pleader has referred to a decision of this Court reported in -- 'Emperor v. Suleman' 36 Bom LR 1124: AIR 1935 Bom 24 and that case is an authority for the proposition that an act preventing a toll contractor or his servant from, collecting the dues under the provisions of the Tolls on Roads and Bridges Act would amount to an obstruction in the discharge of his duty.

With respect, we think, this is the correct view. There is a further point. The learned Magistrate came to the conclusion that while there was no offence within Section 186, the respondents might at the most, he guilty of the offence of contempt of Court. This is, in our view, again an inconsistent conclusion. If the respondents were guilty of contempt of Court, surely it can hardly be suggested that there was no obstruction by the accused within Section 186.

If an accused person obstructs a public servant in the discharge of his public function, the accused person commits two offences. One offence committed by him is the alleged obstruction which comes within Section 186 and the other offence committed by him is the offence of having been guilty of undermining the authority of the Court. In our view, therefore if an accused person has committed an offence within Section 186, he would seem to have committed also an offence of contempt of Court.

The learned Magistrate was therefore, not right in saying that the respondents had at the most, committed an offence of contempt of Court and had not committed an offence within Section 186. For all those reasons, we must set aside the order of the learned Magistrate.

As I have indicated in the course of this judgment, there must be a compelling reason to set aside the order of acquittal and one of the compelling reasons is that the learned Magistrate himself 'has in the course of his judgment come to the conclusion that the accused poisons resisted the delivery of possession by words and objected to the execution of the warrant. If this is the view of the learned Magistrate, we fail to see how it would follow that the respondents have not committed the offence. The result is that this appeal must succeed.

11. We, therefore, allow this appeal, set aside the order of acquittal made by the learned Magistrate, dated 22-10-1955 and convict the respondents of the offence under Section 186. We sentence accused 1 Babulal Gaurishankar Misar and accused 2 Ram-pnasad Gaurisliankar Misar each to suffer rigorous imprisonment for one month. But we sentence accused 3 Godubai w/o Gaurishankar Misar who appears to be aged 60 to pay a fine of Rs. 50 or, in default to suffer simple imprisonment for two weeks.

12. Appeal allowed.


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