1. This is an appeal under Section 417, Cr.P.C. by the state of V.P. from the judgment of the learned Magistrate of Rewa acquitting the 13 respondents of the charges under Sections 353 and 379, I.P.C. Simple as are the facts of this case, this Court can conveniently indicate in this, the circumstances justifying an appeal against acquittal, the form of the order and the manner of interim attachment in a proceeding under Section 145, Cr.P.C., and the distinction between taking possession and the appointment of a receiver.
2. In the village Chachai in the Beohari thana the landlord Lal Jagat Narayan Pratap Singh has mahua groves popularly called mahuaries. The only appropriate act of possession over the land is the collection of flowers from about the last week of March till about the beginning of May. In the season of 1951 these trees were in possession of some of the respondents as tenants; this at any rate has been found in the proceeding under Section 145, Cr.P.C. of which the present case is an oil-shot. Before the mahua season of 1952, the landlord got the pattas cancelled, and the lands reentered in the name or his own son, Lal Jagdamba Pratap Singh; it was found in the 145 Cr.P.C. proceedings, that the revenue Court proceeding was without notice to the tenants, and that the landlord or the new pattedar, his son, had not taken possession before the season of 1952.
3. As a result of other happenings, this purely private dispute led to a sort of local agitation. On account of food shortage in that locality Government which also owns many maharanis, had, in the beginning of 1952, ordered that local peasantry in that locality could collect the flowers of its mahua trees, either free of cost or on payment of very low or nominal rates such as prevailed in Government forests. This was a famine measure, mahua flowers being a good, and in many villages, the only substitute for food-grains. Towards the end of March, Lal Tagat Narayan Pratap Singh and Lal Jagdamba Pratap Singh began to arrange for the collection of the flowers of their manuaries on the strength of the changed pattas. The tenants who were formerly the pattedars insisted upon collecting the flowers themselves. At this stage, respondents 1 and 2, who have no interest in the trees, joined the tenants, and began an agitation of the type popularly called Satyagraha. Their understanding of the position is materially different from that of the tenants and is contained in a letter addressed by respondent No. 1 to the officer i/c P.S. Beohari. They said, while the Government had been good enough to let poor raiyats get the mahua flowers from their mahua trees free of cost or at nominal prices, the landlords like Jagat Narayan Pratap Singh were unwilling to give a similar concession to their tenants; so they would organize satyagrah to bring pressure, presumably moral pressure, on such greedy landlords. The tenants for their part had another, and a legally sounder case, which prevailed in the end, namely, that the revenue Court had passed an ex parte order, and that they had not been dispossessed.
4. Thus there was a sensation in the end of March when the flower collecting season began; so the offlcr i/c of Beohari thana submitted a report to the Magistrate, Beohari, on 1.4.52, setting out these facts, noting that there was an apprehension of the breach of peace, and prayed for action under Section 145, Cr.P.C. On the second April, the Magistrate made a very lengthy order, which I shall quote in extenso later on. A copy was sent to the officer, who served notices on the respondents, and posted copies of the order on the property and prepared to put the property in charge of a receiver. No suitable man being available for it this could not be done; but the officer believed that the property had already been attached.
He went again on the next day and found these respondents and a woman near the trees. They collected the mahua; the woman was carrying it away in basket. Having served copies of the order on these respondents and having also affixed copies to the trees, the officer ordered them to desist and to make over the mahua to him; but they refused. He tried to take the mahua away, but he saw that they were prepared to fight and were already displaying some weapons. Being alone, he wisely avoided the use of force, but he called upon them to explain; Ram Lakhan, respondent 1 gave a written statement to him, setting out socialist party's attitude to the dispute, the landlord was acting in an oppressive and unrestrained manner, and though there might have been a kurki (or an attachment) he was not going to recognize it. The officer returned and started a case alleging that he had been assaulted and put in fear of bodily injury while executing his duties as a public servant; he also alleged that the respondents were guilty of theft, because, whatever the merits of the case, the property taken away by them, had already passed into custodia legis, because of an attachment.
5. This case was transferred from Beohari to Rewa while the proceedings in Section 145, Cr.P.C. were heard at Beohari itself. The latter case ended with a finding that the tenants were in possession, and the order cancelling their pattas and giving a new one to Jagdamba Pratap Singh was made without notice to them, and further that they had continued in possession, and the present proceeding being, in fact, the first unsuccessful attempt on his part. The criminal case at Rewa against these respondents rented in acquittal, not because of the finding under Section 145, Cr.P.C. but because it was held that there had been no attachment & that the officer was not entitled to obstruct the removal of the flowers. Therefore, there was no theft and no offence under Section 353, I.P.C. because, the officer was not discharging any duty as public servant, when he went to prevent the removal. Hence the present appeal.
6. In this small state the number of appeals filed under Section 417, Cr.P.C. is proportionately high. Directing the public prosecutor to file an appeal against acquittal under Section 417, Cr.P.C. is a matter resting entirely within the discretion of the Government. It is certainly not for the High Court to dictate whether or not this should be done in a particular case. However, it has to enunciate the principles. The power given by Section 417, Cr.P.C. is unusual and exceptional, to be exercised not as matter of course, but only when important principles are involved, or when the case is of public importance. The position of an acquitted accused is a strong one; if it is to be assailed, it should be done only exceptionally, and even then with diligence and expedition. The present appeal has been filed on 24.11.52 about five and a half months after the date of acquittal, 12.6.52. To say that we are still within six months period prescribed in Article 157, Limitation Act, is not to understand the real criterion. When a person is convicted, he is normally expected to move the superior Courts in appeal or in revision. So, it is only necessary to see if he has come within the time prescribed by the Limitation Act, or the standing orders, if any, of the High Court on the time limit for criminal revision. In fact the period is extended for good and sufficient cause. But, an appeal under Section 417, Cr.P.C. is not expected Or justifiable as a matter of course, so that, the appellant must show diligence and expedition reasonable in the circumstances. A ninety days-or three months period is what is usually considered sufficient in such cases, and if any thing is slightly more' than what is really needed in this State, where even District Magistrates are-empowered to call for records from Magistrates or Sessions Judges with a view to preparing t& file appeals under Section 417, Cr.P.C. I would expect the P.P. to give report to the D M. within 15 days from the acquittal. The D.M. may take 15 days to get the records and make his reports. Another fortnight should be sufficient for the record and the report to be in the hands of the Legal Remembrance. Another month for him, and yet another 15 days for the Advocate General should be ample. Thus allowing very generously for official delays and pre-occupation with other business, there is no reason why even 90 days should be taken normally. In very special cases there might be more delay but this case is not one of them By this test present appeal has been filed without due promptness.
7. Coming to the merits of the case, we have to see if there was an attachment of the property, and if in the manner the Magistrate passed his order, an attachment could have been, made. Lengthy as is the Magistrate's order, it shows a basic confusion between the procedures under the two fundamentally different Sections 144, Cr. P.C. and 145, Cr. P.C. The order reads:
Seen the records and a copy of the Government order dated 13.3.51. x x x The report is that from the mahua trees in the following plots in villages Chandola-Chandoli, the opposite party Ram Sahai an
At Chandoli: Nos. 113, 60, 147, 148, 68, 9, 11, 6, 52, 151, 46, 49.
The opposite party (or non-applicant, Pratibadi) Ram Sahai and 16 others are collecting mahua flowers against the wishes of the Pattedar; that the pawaidars Jagatnarayan Pratap Singh and Jagdamba Pratap Singh want to stop this; there is, therefore, the clanger of the breach of peace and violent fight between factions which have to be stopped immediately. I hold that there is need for action under Section 145, Clause (1). Therefore, by the service on them of a copy of this order I order the opposite party that till further orders they should not collect the produce of the mahua trees on the plot numbers afore-noted, that they should appear and show cause on 5.4.52 why they should not be restrained from collecting the produce till disposal of the present proceedings. The officer in charge of the thana Beohari is ordered to affix a copy of this order on the property in dispute where there are most of the mahua trees so that every body may see it, and to serve a copy on each of the members of the opposite party and to affix one more copy on the public road near the property where most people collect.
3. The Officer in charge should be further directed to publish this order by beat of drum at the three villages Chachai, Chandola and Chandoli.
X X X X5. Somebody who is not connected with Hither faction' should be entrusted with the responsibility of collecting the produce.
X X X X7. In the copy of the order given to the Pratibadi (opposite party) it should be noted they may, in their written statement, show cause what right they had to collect the flowers and to be in possession of the mahua trees.
8. Issue orders; put up on 5.4.52.
8. There might be good reason in each case to proceed under Section 144 or Section 145, Cr.P.C. or having started under Section 144 to convert it to one under Section 145, Cr.P.C. But the Magistrate and the parties to the proceeding should know where exactly they stand. The Magistrate was ostensibly acting under Section 145, Cr.P.C. in fact, he could not act under Section 144, Cr.P.C. as in this State, the Munsiff Magistrates (Judicial Magistrates) are not empowered to act under the latter. There being no sub-divisional Magistrate in this state, orders under Section 144 can be passed by the D.Ms. or the Additional D.Ms. alone. The beginning of the order, and the fact that he describes Ram Sahai's faction?s 'opposite party' (pratibadi), indicate that the Magistrate was of opinion, that these men were taking away the produce of the landlord's trees against his wishes under a misapprehension of the Government's order and had, there-lore, to be ordered to abstain from that act so that there may be no breach of the peace. Under Section 145, Cr.P.C. the Magistrate is not -competent to call upon the party to abstain from any act; if he wants that 'all' claimants (he cannot act against only some of the claimants under Section 145, Cr.P.C. should be stopped from exercising possession, he cannot order it directly But he can secure indirectly the same results pending proceeding by an attachment under the second proviso to sub-el. 4. Having made the preliminary order under Sub-section (1), the Magistrate should decide if there is any emergency at all; if there is. and only if there is, he may attach the subject matter of the dispute pending his decision Then he should order the attachment by the officer of the thana, or the collector in case the properties are extensive and the in more than one thana. The officer directed can attach either by himself taking possession on behalf of the Court or by appointing a receiver; either way, he should apprise the parties concerned and the public in Geneva by individual and general notices that the attachment has been effected in the one way or the other.
9. In the present case, the preliminary order was not clear, though, it was ostensibly under Section 145, Cr.P.C. If it was under Section 144, Cr.P.C. there con be no attachment; the consequence of a disobedience of an order under that section is not a prosecution under Section 353 or Section 379, I.P.C. but one under Section 188, I.P.C. In this case at all events, this particular Magistrate had no power to issue orders under Section 144, Cr.P.C. Moreover, there is no order that there was an emergency nor any clear order of attachment or a direction to the Section I, to effect it. No doubt among other things, there is mention in para 5 that the trees might be placed 'in charge of a third party' so that the produce might not be damaged or lost; there is no direction to the Section I. to do so, and in any event the Section I. did not place the property in charge of a receiver. It appears that he was looking for a suitable person. So the respondents were not committing theft because the property had not passed either into custodia legis. The officer could not under the Magistrate's order stop the respondents from taking away the produce; so that obstruction offered to him and the fear of injury created In his mind, did not amount to the offence of Section 353, I.P.C. or Section 186, I.P.C.
10. Since the Magistrate's order reveals some hazy notions about attachment, it is convenient to explain what exactly it signifies. The word 'attachment' has not been denned in the Cr.P.C. but it occurs among other sections i.e., Sections 88., 145(4) proviso 2 and Section 146, Cr.P.C. Attachment is well known in civil suits also but the purpose is different in the two classes of cases. In civil proceedings, it is to prevent the disposal of the property by an owner and make it available for the realization of dues that a Court has already decreed or is likely in future to decree against him. In a criminal case, on the other hand, the attachment of property is either a measure of coercion, as in Section 88, Cr.P.C. or a guarantee against breach of the pacts as in Section 145 and Section 146, Cr.P.C. Section 88(4) provides that the attachment of immoveable property may be done in one or two ways:- Firstly, by taking possession; and secondly, by appointing a receiver. The same processes are available for attachment under Sections 145 and 146. Cr.P.C. also They are two distinctive and mutually exclusive modes, the latter being the more convenient one, where the property requires day to day attention, and if neglected may suffer disproportionate damage It is possible, and often convenient that possession is taken at first, and subsequently, a receiver is appointed. Thus in all cases of attachment, under Section 145(4) Proviso (2) the following steps are essential. The preliminary order and following it, the finding that there is an emergency, caning for the extraordinary measure of attachment; then a direction to a public servant to attach the property, either by taking possession, or by appointing a receiver or do the one followed by the other, the receiver being designated by the Court itself or less preferably, left to the choice of the attaching authority: finally, the officer's actual taking possession or putting the receiver in possession.
11. The foregoing discussion would show that there was rapidly no attachment in this case. So the acquittal on the charges Under Section 353, I.P.C. or Section 379, I.P.C. was only proper decision.
12. In the result, this appeal is dismissed and the respondents are discharged from bail.