1. These two revisions can be dealt with together. In one case Chhote Lal and Mahabir were convicted under Section 353, I.P.C. and Section 295, Municipalities Act, and in the other case Sheo Narain and Ram Prasad were convicted of similar offences. It appears that the applicants were in arrears in respect to certain taxes which were due to the Notified Area Committee of Chunar. First a bill of demand was issued to them and then a notice of demand, and finally a distress warrant was issued. The Superintendent of the Notified Area Committee went with a peon and attempted to execute the warrant; but they were resisted and the applicants were accordingly prosecuted. The trial Court sentenced each of them to undergo two years' rigorous imprisonment and to pay a fine of Rs. 200 each under Section 353, I.P.C., and to pay a fine of Rs. 50 each under Sections 295, Municipalities Act; but in appeal the Sessions Judge was very rightly of opinion that there was no sufficient ground for inflicting the maximum penalty and he reduced the sentence to six months' rigorous imprisonment and a fine of Rs. 20 under Section 353,I.P.C. and to a fine of Rs. 10 under Section 295, Municipalities Act.
2. Various points have been taken before me in revision. The first is that a person cannot be legally tried for an offence under Penal Code where the offence is triable under the Municipalities Act. This plea is based on the assumption that an assault or use of criminal force is punishable under the Municipalities Act. I am referred to the case of Chandi Pershad v. Abdur Rahman (1895) 22 Cal 131. In that case the Court observed:
The Municipal Act is intended to be complete in itself as regards offences committed against the Municipal Commissioners and we can find no indication in the Act of any intention to make a delinquent also liable to punishment under the Penal Code.
3. But in Joti Prasad v. Emperor 1931 ALJ 986 where a person had been convicted under Section 9(a), Salt Act and under Section 117, I.P.C., it was held by a Bench of this Court that as there was nothing in the special act to exclude the operation of the general criminal law, it could not be inferred that there was an intention on the part of the legislature to exclude it. It was held that there was no bar to the accused being prosecuted for abetment under Section 117, I.P.C., instead of under Section 9(c), Salt Act. It was pointed out by the learned Judges that in Segu Baliab v. Ramasamiah 1918 42 IC 608, the case in Chandi Pershad v. Abdur Rahman (1895) 22 Cal 131 had not been followed by the Madras High Court. It was held in that case that a person could be convicted under Sections 421 and 424,I.P.C., although the facts alleged amounted to an offence under Section 43, Provincial Insolvency Act ( 3 of 1907); the prosecution could be either under the provincial Insolvency Act or under the Penal Code. Under Section 26 General Clauses Act, it is laid down that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. In the present case however the applicants have been convicted on the same set of facts for two different offences, one being the offence of obstructing or molesting an employee of the board in the performance of his duty (which is practically equivalent to Section 186, I.P.C., Vide note 1, to Section 295, Municipalities Act) and the other being the offence of assaulting or using criminal force to a public servant in the execution of his duty. 'Molesting' is not defined, but presumably it is something less than an assault or use of criminal force and is ejusdem generis with 'obstructing.' Under Section 235(2), Criminal P.C., the applicants could be tried for each of these offences at one and the same trial, since the allegations, if true, will constitute two offences and will not be the same offence within the meaning of Section 26, General Clauses Act. The position in fact is just the same as though the applicants had been prosecuted under Section 186 and Section 353, Penal Code and, as I have already said, the trial under those two sections will be competent under Section 235(2) Criminal P.C., Vide Illustrations (I) and (K) to that section.
4. The next plea taken is that the complaint quoad Section 295 Municipalities Act, was not properly presented. The complaint was signed by the Superintendent and was presented by him and it is proved that a resolution was passed by the board on 24th May 1927, which authorised the Superintendent to file such complaints, a reservation being added that they must have the formal approval of the Chairman The record shows that on 5th May 1935 the Chairman wrote the following order:
'Let criminal proceedings be started against them.' It is not contended that the signature on that order is not the signature of the Chairman and therefore it is obvious that this complaint was presented with the Chairman's approval. It is next contended that the distress warrant was not legally issued. This warrant was signed and issued by the Chairman. Section 297(g), Municipalities Act, as modified for notified areas provides that a board may make regulations as to the delegation of powers, duties or functions to the Chairman; and Section 169(1), enacts that a warrant of distress may be 'caused to be issued by the board' and Clause (2), provides that every such warrant shall be signed by the Chairman of the Board or by 'an officer to whom the Board had delegated its power by regulation. It is argued that, although the Chairman has power to perform the act of signing a warrant, he cannot do so until the Board has caused the warrant to be issued unless, of course, the Board has delegated its power of issuing warrants to the Chairman under Section 297(g), which fact has not been proved in the present case. The definition of 'board' in Section 2 includes any member authorised by or under the Act to exercise the power or perform the duty; but it is clear that before the Chairman can represent the Board he must first have authority from the Board itself. All that the prosecution has shown in this case is that the Chairman has authority to sign a warrant of distress, which is the last or practically the last act in the issuing of a warrant; but there is nothing to show that the Board had by regulation under Section 297 authorised Chairman on his own initiative to cause the warrant to be issued. In the circumstances I am very doubtful whether the prosecution has discharged its onus of proving that the warrant was legally issued; but it is not necessary to decide this point because, for reasons which I am about to give, I am of opinion that the warrant was illegal on other grounds.
5. The bill of demand and the notice of demand were signed by the Superintendent. Under Sections 166 and 168, Municipalities Act, it is the duty of the Board to cause a bill of demand to be presented to the defaulter and thereafter to cause a notice of demand to be served upon him. Admittedly there is no establishment list and there is nothing to show what duties have been assigned to the Superintendent, still less is there anything to show that; under Section 297 there has been any delegation of power to him to sign bills of demand and notices of demand. It was the clear duty of the prosecution to establish that these documents were validly issued. That onus has not been discharged and there can be no presumption under Section 114,. Evidence Act so as to relieve the prosecution of its duty. When the prosecution sets out to prove that an accused person; has assaulted an officer of the Board while engaged in the performance of his duties as such officer, it is obvious that it must first of all establish that the said officer was in fact performing a duty which was legally imposed upon him. Thus, even if the warrant of distress were held to be otherwise valid, it would be bad by reason of the in-validity of the bill of demand and the notice of the demand which admittedly must be issued to a defaulter before; the issue against, him of a warrant of, distress.
6. It now remains to be seen whether the applicants are entitled to an acquittal. It is contended by the Assistant Government Advocate that under Section 99 of the Penal Code the applicants were deprived of any right of resistance. On behalf of the applicants I have been referred to Kishori Lal v. Emperor 1934 All 1016, which was a case decided by myself and to Subbaramia v. Emperor 1934 Mad 206. It is to be noticed however that Section 99' was not considered in either of those cases and accordingly the accused were acquitted. In Muhammad Ibrahim v. Emperor 1931 Lah 524, which was case of an assault on two peons and a chaukidar who had gone to demand payment of a tax, but had with them only a list of defaulters and no legal writ of demand, it was held that the conviction under Section 353, I.P.C. was illegal, but the conviction was altered to one under Section 352,I.P.C. In Emperor v. Bhopo 1933 Sind 174, a similar view was taken. Section 99, I.P.C. was considered and the learned Judges-who decided that case observed as follows:
If the acts of the public servant are not strictly justifiable, if he is not discharging a duty imposed on him by law, if he is not doing what it is his duty to do as a public servant, the offence does not fall under Section 353. It falls under Section 352. Section 99, I.P.C. does not cure the defect caused by the irregularity. The effect of Section 99 is merely to remove certain rights of private defence.
7. The conviction was accordingly altered from one under Section 353 to one under Section 352 of the Penal Code. This seems to me to be the correct view. There is no reason to Suppose that the Superintendent, who is admittedly a servant of the Board, was not acting in good faith and under colour of his office. In my opinion therefore the conviction of the applicants under Section 353 must be altered to a conviction under Section 352,I.P.C. Finally it is contended that Chhote Lal is not liable to be convicted inasmuch as the evidence shows that he merely challenged the Superintendent. I do not think that there is any force in this plea. The evidence shows that Chhote Lal challenged the Superintendent and Mahabir gave a slap to the peon, and then they both abused the peon and the Superintendent. Obviously they were acting in concert and were equally guilty. In fact, one witness says that Chhote Lal ordered his nephew Mahabir to slap the peon. In the result I dismiss these applications in respect to the conviction under Section 295, Municipalities Act and the sentences of fine which have been inflicted under that section. I set aside the conviction under Section 353, I.P.C. and substitute for it a conviction Under Section 352,I.P.C. I understand that the applicants have been in jail till a few days ago when I granted them bail. I reduce the sentence of imprisonment to the period already undergone and I maintain the sentence of fine.