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Duryodhan Das and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in34(1968)CLT545; 1969CriLJ85
AppellantDuryodhan Das and anr.
RespondentState
Excerpt:
.....proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - on these allegations the munsif kendrapara complained against the petitioners and 5 others under section 183, penal code, the learned sub-divisional magistrate found all the seven persons guilty under section 183, penal code, and convicted and sentenced each of them to pay a fine of rs. it is well settled that a person relating a bailiff in attaching property under a warrant issued of which data has already expired would not be an offence..........including the two petitioner gathered at the spot. he disclosed his identity and showed the writ of delivery of possession to them. but despite that the petitioner offered resistance. it is dear from the evidence of p. ws. 1 to 5 that it is the petitioner no. 1 who gathered everybody and encouraged the percent there to resist the delivery of possession and p.ws. 1 and 4 had specifically named the petitioner no. 2 kulamni as the person who snatched the sickle from the hands of supa dei (p.w. 4) and assaulted her with it. i therefore find that there is sufficient and satisfactory evidence to show that these two petitioners offered resistance to the civil court nazir.3. two points of law are urged on behalf of the petitioners to challenge the correctness of the order of conviction;.....
Judgment:
ORDER

B.K. Patra, J.

1. This petition in revision is preferred against an appellate order of the Additional Sessions Judge, Cuttack upholding the conviction and sentence passed on the petitioner under Section 183, Penal Code. One Jema Bewa obtained a decree in the Court of the Munaif, Kendrapara against certain persona. The decree contained a direction inter alia that the defendants should remove a certain portion of the thatch of the adjoining school building which had encroached on the plain, tiff's land and in default thereof the plaintiff was given the liberty to get the encroachment removed through Court. The encroachment having not been removed by the defendants a writ was issued by th8 Court to Nazir (P.W. 1) directing him to remove the encroachment and to give delivery of possession to the plaintiff. This writ was signed by the Munsif on 23.3.63. On that very date, the learned Munsif issued a commission to the civil Court Commissioner (P.W. 2) to demarcate the suit land for delivery of possession and to submit his report by 1.4.63. In pursuance of the writ issued to the Nazir the latter along with the civil Court commissioner (P.W. 2) and the process-server (P.W. 3) went to the disputed land at about 9 A. M. on 18.4.63. The commissioner made the necessary measurement and earmarked the portion of thatch to be demolished and it is alleged that while the Nazir was about to give delivery of postseason, the two petitioners along with five others offered resistance to the delivery of possession, threatened the civil Court staff and caused physical injury to the decree holder and her daughter, Supa Dei (P.W. 4). The Nazir could not therefore effect delivery of possession of the property to the decree holder and returned the writ (Ex. 1) to the Court with his report (Ext. 1/a). The civil Court commissioner also submitted a report (Ex. 4) to the 'Court to that effect. On these allegations the Munsif Kendrapara complained against the petitioners and 5 others under Section 183, Penal Code, the learned Sub-divisional Magistrate found all the seven persons guilty under Section 183, Penal Code, and convicted and sentenced each of them to pay a fine of Rs. 100 and in default to suffer R.I. for one month. On appeal the learned Additional Sessions Judge, Cuttack found that there was no satisfactory evidence against the five others that they had taken active part in offering resistance to the civil Court staff and acquitted them, but held that the two petitioners herein offered resistance to the civil Court staff. He therefore upheld the conviction of the two petitioners and the sentences passed on them.

2. At the outset it is argued by the learned Advocate for the petitioners that the evidence of D.Ws. 1 and 2 who originally were cited as prosecution witnesses in the complaint petition should have been preferred to the evidence given by the prosecution witnesses examined in this case. The very same contention was put forward before the trial and appellate Courts and was duly considered by both the Courts and they have given cogent reasons for preferring the evidence of the prosecution witnesses. In fact D.W. 1 who acted as a drummer at the time of giving delivery of possession said that as soon as there was beat of drum the petitioner No. 1 Duryodhan Das came before the Nazir and stated that he did not know anything about the case and would enquire about it. D.W. 1 says that he left the place immediately thereafter. He is therefore not a competent witness to say what transpired at the repot thereafter. D.W. 2 has admitted the presence of all the accused persons including the two petitioners at the spot by the time he arrived there, and according to him it is only the petitioner No. 1 who spoke to the Nazir. The Nazir has deposed that some persons including the two petitioner gathered at the spot. He disclosed his identity and showed the writ of delivery of possession to them. But despite that the petitioner offered resistance. It is dear from the evidence of P. Ws. 1 to 5 that it is the petitioner No. 1 who gathered everybody and encouraged the percent there to resist the delivery of possession and P.Ws. 1 and 4 had specifically named the petitioner No. 2 Kulamni as the person who snatched the sickle from the hands of Supa Dei (P.W. 4) and assaulted her with it. I therefore find that there is sufficient and satisfactory evidence to show that these two petitioners offered resistance to the Civil Court Nazir.

3. Two points of law are urged on behalf of the petitioners to challenge the correctness of the order of conviction; firstly that the petitioners not being parties to the decree, resistance by them will not bring the case within the purview of Section 138, Indian Penal Code, and secondly that the writ on the basis of which the Nazir was proceeding to give delivery of possession ceased to be valid on 18th April 1968. Regarding the second point it is clear from the perusal of the writ (Ex. 1) that no time limit had been mentioned there within which it was to be executed. It is well settled that a person relating a bailiff in attaching property under a warrant issued of which data has already expired would not be an offence under Section 188, Indian Penal Code. But I find from the perusal of the writ (Ex. 1) issued to the Nazir that no time has been fixed for its execution. My attention was, however, drawn to Ex. 3 the commission issued to the Civil Court commissioner (P.W. 2) to demarcate the suit land for the purpose of delivery of possession wherein he was detested to submit his report by 1st April 1968. It is contended that since such a demarcation was admittedly not made by the commissioner before 1st April 1963, the commissioner was not entitled to effect the demarcation on the date of occurrence namely 18th April 1968 and that as such the disputed property could not have been delivered to the decree holder on that date. This contention is clearly unacceptable. The person who was directed to deliver possession of the property to the decree-holder was not commissioner but the Nazir. The commissioner was only to demarcate the property. Even without demarcation the Nazir could effect delivery of possession provided he himself was in a position to know which particular portion of the property was to be delivered to the decree-holder. So long as the writ (Ext. 1) issued to the Nazir remained valid the mere fact that the time fixed in commission issued to P.W. 2 expired would not in any way affect the validity of the proceeding. The second contention raised on behalf of the petitioners is therefore over, ruled. Regarding the first contention the section itself makes it dear that its application is not limited only to the parties to the decree, but that whoever offers resistance whether a party to the decree or not is liable. All that is necessary to establish is that such person offered resistance knowing or hiving reasons to believe that the person to whom resistance is offered is a public servant. There is satisfactory evidence in this case to establish that before the Nazir proceeded to give delivery of possession he made it known to all concerned including the petitioners that he was the Nazir and he also showed to them the writ on the authority of which he was there to deliver possession.

4. In the result, I am satisfied that both the petitioners have been rightly convicted. Having regard, however, to the circumstances of the case, I feel that a fine of Rs. 50/- in each case would be sufficient to meet the ends of justice. I would, therefore, while maintaining the conviction of the two petitioners reduce the fine imposed on each of them to Rs. 50/- in default of payment of which each of them would suffer R.I. for 15 days. Subject to the reduction in the sentence the revision petition is dismissed.


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