John Beaumont, Kt., C.J.
1. In this case the accused applies in revision against his conviction by the First Class Magistrate of Rahuri under Section 183 of the Indian Penal Code, the conviction having been upheld by the Sessions Judge of Ahmednagar, Section 183 provides that whoever offers any resistance to the taking of any property by the lawful authority of any public servant, knowing or having reason to believe that he is such public servant, shall be punished as therein provided. So that, in order to bring the section into operation, there must be resistance to the taking of property by the lawful authority of a public servant. The facts are that a man named Baban owned certain land in respect of which he was in arrear with 'his irrigation dues. He had sold the sugar-cane grown in that land to a man named Raichand, who had employed the accused to crush the sugar, and the jaggery was being removed in two carts, when it was attached by the Talati in respect of the irrigation dues in arrear. The accused subsequently removed the carts from the custody of the Talati, and took them away, but no act of violence is alleged. Under Section 57 of the Bombay Irrigation Act, 1879 (Bom. VII of 1879) it is provided that any instalment of irrigation dues not paid on the due date shall be recoverable according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. The section of the Land Revenue Code under which the seizure of these carts is sought to be justified is Section 154, which provides that the Collector may cause the defaulter's moveable property to be distrained and sold.
2. Two objections are taken to the conviction, one technical, and one on the merits. The technical objection is that it is not proved that the Talati was a public servant. The Talati put in an authority from the Mamlatdar authorising him to seize the crops of Baban, that authority being Ex. 1C. But it was not proved that the Mamlatdar had power to give that authority to the Talati. Under the Bombay Land Revenue Code it is the Collector who has the power to enforce payment of land revenue in arrears, and the Mamlatdar can only act by showing that the Collector has delegated to him the particular power in question. That was laid down by this Court in Gangaram Hatiram v. Dinkar Ganesh I.L.R. (1913) 37 Bom. 542 : 15 Bom. L.R. 665. In this case there is no evidence on the record to show that the Collector had delegated his authority to act under Section 154 to the Mamlatdar. The Assistant Government Pleader says that this point was not taken in the lower Court, and ought not to be taken now, but it is plainly open in revision for an accused person to say that on the face of the record the prosecution has not: proved their case. It is not for the defence to point out to the prosecution any missing link in their chain of proof. The omission to prove the authority of the Mamlatdar is, in my opinion, fatal to the conviction.
3. The other point taken is this, that under Section 154 what can be distrained and sold is the moveable property of the defaulter. The defaulter was Baban, and on the facts proved the jaggery in these carts was no longer the moveable property of Baban. It had been sold to somebody else, and that being so, it could not be seized under Section 154. The learned Sessions Judge held that even if that was so, inasmuch as the Talati was acting bona fide, though in excess of his authority, the prosecution would lie under Section 183, and he relied on a decision of the Madras High Court, Queen-Empress v. Tiruchittambala Pathan I.L.R. (1896) 21 Mad. 78. In that case property had been seized in execution by the officer of the Court, and it was held that the officer of the Court was acting bona fide, but in fact had sized the property of the wrong person. Nevertheless the Court was of opinion that the accused could be properly convicted under Section 183 for resisting the execution. That case has stood for a good many years, and seems to have found its way into the text-books. But we have been referred to no authority in this Court in which it has been recognized, and I am clearly of opinion that the decision was wrong. The Court held that the language of Section 183 of the Indian Penal Code was controlled by the language of Section 99. Now Section 99 provides that 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. That section, therefore, is designed to protect a public servant, and to limit the amount of resistance which may be offered to him. Section 183, on the other hand, is not a section for the protection of the public servant, but enables him to take the offensive and prosecute anybody who resists the taking of property by lawful authority. It is one thing to provide that a public servant who is acting bona fide in the exercise of his office, though in excess of his authority in fact, is to-be protected from acts of violence. It is quite another thing to say that such a public servant, being in fact in the wrong, may prosecute anybody for resisting peaceably his wrongful act. Resistance to the act of a public officer acting bona fide though in excess of his authority may well give rise to some charge in the nature of assault, but it cannot, in my opinion, afford any foundation for a prosecution under Section 183. The language of Section 183 is perfectly plain. It applies to resistance to the taking of property by lawful authority of a public servant, and there are no words in that section, as there are in Section 99, extending the operation of the section to acts which are not strictly justifiable by law. In my opinion, therefore, we ought not to follow the case of Queen-Empress v. Tiruchittambala Pathan I.L.R. (1896) Mad. 78, and we are bound to hold that in this case, there being no allegation of violence on the part of the accused, the accused was entitled to resist peaceably the wrongful act of the Talati in seizing the jaggery which did not in fact belong to the defaulter.
4. The application must be allowed, and the conviction and sentence set aside, The fine, if paid, will be refunded, and the bail bonds cancelled.
N.J. Wadia, J.
5. I agree.