1. This is an application for revision against the order of the District Magistrate, Hamirpur, dated the 10th November, 1924, convicting the applicant under Section 186, Indian Penal Code and sentencing him to pay a fine of Rs. 50 in a summary trial.
2. The prosecution was started on the written complaint of B. Bhagwati Prasad Sinha, Sub-Divisional Officer who is said to have been obstructed by the applicant in his attempts to re-organise and reconstitute the Korara panchayat according to the orders of the District Magistrate.
3. The Sub-Divisional Officer in his complaint Exhibit D says that he called the Panches with their records at his camp in Damar and they came as instructed. He proposed to them the inclusion of a member of the depressed classes in the Panchayat but this displeased Ram Ghulam applicant who is one of the Panches and he eyed the other Panches and declared that the Panchayat would cease forthwith. He, the Sub-Divisional Officer, argued with him for a while but this only increased his defiance and the other Panches remained sullen. Then Shiam Sunder, the brother of the Sarpanch, who had brought the papers, was asked to keep the papers with him and he took them away but shortly after he returned and threw the basta containing the papers and went away and when he was sent for he came with Ram Ghulam applicant and when asked to explain his conduct, Ram Ghulam replied that the Panchayat had ceased to work and Shiam Sunder repeated the same. Then next morning when he (the Sub-Divisional Officer) went to Korara to ascertain; the local feelings about the present Panches, he discovered that Ram Ghulam had been instigating others not to work in the Panchayat and as a result of it the Sarpanch refused to work and the other Panches gave only a half-hearted consent.
4. Nothing more than what is stated in the complaint appears to have been stated by the Sub-Divisional Officer in his deposition before the District Magistrate because the District Magistrate in his judgment says : 'Under the Government orders the Magistrate had to see if a member of the depressed classes could also be appointed to the new Korara Panchayat. Accused took offence at the order of sitting with a low caste man and declared that the panchayat would cease to function forthwith. He spoke for himself and for his brother Panches. The Magistrate tried to expostulate but the accused evidently mistook it for weakness and showed more defiance. His fellow Panches taking their cue from him sulked and) sullenly stood by his side in his mischievous attempt at obstruction. The accused and Shiam Sunder, brother of the Sarpanch Gopi Nath, went away after throwing the books and register upon the Magistrate. They had to be sent for again and then they came and insulted the Magistrate. The following morning the Magistrate went to ascertain the local feeling but to his natural surprise he discovered that his apology notwithstanding the accused had been instigating his people and arranging that nobody should accept the membership of the newly constituted Panchayat.'
5. The District Magistrate appears to be wrong in saying that the accused threw the basta on the Magistrate because the complainant says that Shiam Sunder threw the basta and went away and then returned with the applicant.
6. The Sub-Divisional Officer no doubt is his complaint says that he was thwarted, opposed and obstructed by the applicant in discharging his public duties and was insulted by him after he came with Shiam Sunder and the District Magistrate also finds that he was obstructed and insulted but what took place appears to be simply this that the accused, when asked to sit with a member of the depressed classes, refused to do so and told the Magistrate that the Panchayat would cease to exist and instigated his fellow Panches and other parsons not to sit with the members of the depressed classes in the Panchayat. He had not thrown the basta upon the Magistrate and his merely telling the Magistrate in reply to a question put to Shiam Sundar that the Panchayat had ceased to exist, insulting though it was, would not make him criminally liable because mere abuses have been held not to constitute obstruction (Ratan Lal, 9th Edition, page 375). The Sub-Divisional Officer was no doubt hampered in the performance of his public duty, by the refusal of the applicant and by his instigations but I do not think that the applicant's conduct amounted to voluntary obstruction within the meaning of Section 186, Indian Penal Code. In order to constitute voluntary obstruction within the meaning of Section 186, Indian Penal Code there must be the commission of some positive overt act of obstruction and not merely a sort of passive resistance and refusal to carry out orders as would appear from Queen Empress v. Sommanna (1892) 15 Mad. 221.
7. There is no legal evidence to support the conclusion that the accused had been instigating others not to act in the Panchayat after his apology of the first day because the Sub-Divisional Officer is the only witness examined in the case and he could not have seen or heard anybody being instigated in his absence in Korara. He must have come to know of these instigations the next day from others who have not been examined as witnesses in the case. Persuasions addressed to tenants in the absence of a receiver not to pay rent to him were held not to constitute obstruction Ebrahim Sirkar v. Emperor (1902) 29 Cal. 236 and in Matu Ram v. Emperor A.I.R. 1924 Lab. 238 although the accused bad beaten the Lambardar who was helping a Naib Tahsildar in performance of his duties and as the result of that beating the Lambardar refused to help the Naib Tahsildar, the accused was held not to have committed any criminal offence. A person spreading false reports and thereby preventing persons from taking their children for vaccination was held not to have committed any offence under S186, Indian Penal Code; Queen Empress v. Thimmachi (1892) 15 Mad. 93.
8. Under the Village Panchayat Act the Collector or with his permission the Sub-Divisional Officer could have appointed any member of the depressed classes to be a Panch. The applicant might have been left free to sit with him or not. He need not have been consulted or argued or expostulated with but if the Sub-Divisional Officer consulted him or wanted to bring him round to his own view, the applicant could very well express his own opinion and I think he could induce his fellow-panches also to hold the same opinion. To hold him criminally liable would be unduly widening the scope of Section 186, Indian Penal Code.
9. In my opinion the conduct and the acts of the applicant, however blameworthy, do not fall within the meaning of Section 186 and he does not appear to me to have voluntarily obstructed the Sub-Divisional Officer within the meaning of that section. I would, therefore, submit the record to the Hon'ble High Court with a recommendation that the conviction and sentience of the applicant be set aside.