1. This is a criminal revision case which has been filed against the conviction and sentence of the learned Sub-Magistrate of Tiruenendur in C. C. No. 447 of 1951 and confirmed by the Sub-Divisional Magistrate of Tuticorin in C. A. No. 14 of 1952.
2. The facts are : The petitioners who are father and son, are running a grocery shop in Udangudi, a major Panchayat. P. W. 1, Shanmugham, Assistant Inspector of Labour, made a surprise inspection of this shop under the Shops and Establishments Act on the night of 5-2-1951 (Monday and a shandy day) at 10-30 p. m. according to his watch and at 9-20 p. m. according to the timepiece in the shop. This P. W. I wanted to note the time of inspection in the register kept for that purpose. The accused objected and wanted this P. W. 1 to record the time as 9-30 p. m. as well as per the time-piece in the shop. There was a dispute and according to P. W. 1 accused 1 pushed him by the chest and accused 3 snatched away the register from his hand in addition to having abused. This created a scene and a crowd gathered. Inasmuch as it had become late, P. W. 1 sent next day telegrams to his superior officers and despatched a report to the Sub-Inspector, Kulasekharapatnan. The Police charge-sheeted both the accused. P. W. 1 is corroborated by his peon P. W. 2 and practically by the peon of the Udangudi Panchayat Board office, P. W. 3. P. W. 4 is the Sub-Inspector who received the telegram and complaint and investigated the case. The case for the accused was that no such thing as alleged took place and that this case has been foisted upon them at the instance of the Executive officer of the Udangudi Panchayat Board, a friend and casteman of P. W. 1. They examined three witnesses of whom the village Munsif of Udangudi, D. W. 1, stated that at 11-30 p. m. that night accused I gave him the statement Ex. D. 2 explaining his version of the incident and that before that when at 10-55 p. m. P. W. 1 met him he did not tell him anything about the assault. D. W. 2, a neighbouring shop-keeper and D. W. 3 the Secretary of the Co-operative Stores who is stated to have come there on hearing the 'galatta', testified that when P. W. 1 inspected the petitioner's shop he compelled the shop assistants to sign in the book that the time was 10-30 p. m., whereas the correct time was 9-45 p. m. and that when the accused protested P. W. 1 tucked up his sleeves, threw down the book and assumed a fighting attitude and that D. W. 3 pacified and separated them. Both Courts have believed the prosecution version and accused were convicted under Section 353, Penal Code and sentenced to pay a fine of Rs. 50 each.
3. In regard to the findings of fact, they are binding on me and I have to consider here only the point of law which seems to have been suggested in the lower Court but which has been pressed only in this Court. The point is briefly this : 5-2-1951 happened to be a.Monday and a shandy day. In G. O. No. Ms. 229 (Development) dated 13-1-1951 published in the Fort St. George Gazette on 30-1-1951, it has been notified that shops in Udangudi Major Panchayat could be kept open, on Mondays (shandy days) till 11 p. m. The point now urged is that there was irregularity in the inspection by P. W. 1 and therefore if force is used by the accused and the officer acting under the Shops and Establishments Act is assaulted, it does not amount to an offence.
4. Under Section 99, Penal Code, it is enacted that (a) an act done or attempted to be done, (b) by a public servant, (c) acting in good faith, (d) under colour of his office, (e) though that act may not be strictly justifiable by law, does not give rise to the right of private defence. These clauses in favour of public servants rest partly on the probability that their acts will be lawful, in which case resistance must necessarily be unlawful; partly on the theory that resistance is unnecessary since the law will set right what has been wrongly done in its name; and, lastly, on the ground that it is good for society that public servants should be protected in the execution of their duty even where they are in error. But in order to secure the protection of Section 99, I. P. C. it is essential that the act done or attempted to be done by a public servant must be (a) in good faith, (b) under colour of his office, (c) though that act may not be strictly justifiable by law.
5. Good faith: As to what constitutes good faith, a negative definition of good faith has been given in Section 52, I. P. C. as 'Nothing is said to be done or believed in good faith which is done or believed without due care and attention.' This section makes no reference to the moral elements of honesty and right motive which arc involved in the popular significance of 'good faith' and which are predominant in the positive definition enacted in the other Acts of the Legislature. The General Clauses Act. 1897, Section 3(20) (now 22) which applies to all Acts of the Governor-General in Council and Regulations made after the commencement of the Act (11-3-1897), on the contrary, says that a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not. The Madras General Clauses Act, 1891, Section 3(11) defines good faith according to the definition given in the Penal Code. It therefore follows that while an honest blunderer acts in good faith within the meaning of the General Clauses Act, an honest blunderer can never act in good faith within the meaning of the Penal Code for being negligent. He has not acted with due care and attention. Due care and attention implies a genuine effort to reach the truth and not the ready acceptance on ill-natured belief. The question of good faith is a question of fact and must be gathered from the surrounding circumstances. Mere actual belief without any reasonable grounds for believing is not simultaneous with good faith; but good faith does not require logical infallibility but due care and caution which must in each case be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question. The law does not expect the same care and attention from all persons regardless of the position they occupy: -- 'Bhawoo Jivaju v. Mulji Dayal', 12 Bom 377 (A), -- 'Sheo Suran v. Mahomed Fazil Khan', 10 W. R. Cr. 20 (B); -- 'Emperor v. Daya Shankar', AIR 1926 oudh 398 (C); -- 'Public Prosecutor v. Rajammal', 1911 2 MW. N. 479 (D); -- 'Queen-Empress v. Subba Naicker', 21 Mad 249 (E); -- 'Krishnaya v. Emperor', 1937 M W. N. 569 (F); -- 'Public Prosetutor v. Suryanarayana Reddi', 1937 M. W. N. 741 (G).
6. Colour of office : The words under 'colour of office' should be carefully construed. They refer to irregular as distinguished from illegal acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. In short, the act has been done wrongly though it might have been done rightly. In other words, the clause is not intended to cure the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle such an irregularity for example as initialling a warrant instead of signing it, the mode of delivering possession or the like -- it would be covered by this clause: -- 'Queen-Empress v. Tiruchittambala', 21 Mad 78 (H); -- 'Queen-Empress v. Poomalai', 21 Mad 296 (I); -- 'Queen-Empress. v. Rainayya', 13 Mad 148 (J); -- 'Queen-Empress v. Pukotkotu', 19 Mad 349 (K); -- 'Bhawoo v. Mulji', 12 Bom 377 (A); -- 'R. v. Janki Prasad'. 8 All 293 (L.M.) ; -- 'R. v. Bhailal'. 29 Cal 417 (N); -- 'Doraiswami Pillai v. Emperor', 27 Mad 52 (O); -- 'Ghulam v. Emperor', AIR 1936 Lah 851 (P); 'Muni Reddi In re', AIR 1948 Mad 472 (Q).
7. Not strictly justifiable in law: In the case of -- 'Bisu Haldar v. Emperor', 11 C W. N. 836 (R), it was pointed out that the phrase under comment as stated in Mayne's commentary on Criminal Law seems to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction, to cases where the official has done wrongly what he might have done rightly, not to cases where the act could not have possibly been done rightly, in other words, the clause is not intended to cure the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle, it would be covered by the clause. Explanation (1) goes with this paragraph and it is intended to protect persons who may have acted in ignorance of the fact that the person they were dealing with was a public servant. -- 'Dhara Singh v. The Crown', AIR 1947 Lah 249 (S). Where the public servant has a distinctive badge or uniform, his position would be manifest to all who have to deal with him. But if the public servant has no distinctive badge or attire, he has to state who he is before he can claim exceptional treatment. If he was however attended by peons whose badges proclaim his position or if he was already known in the locality or to the other party as in the instant case, it would be sufficient. -- 'Moinuddin v. Emperor', AIR 1921 Pat 415 (T) ; -- 'Abdul Gafur v. Empress'. 23 Cal 896 (U) -- 'Raman Singh v. Empress', 28 Cal 411 (v): -- 'Empress v. Dalip', 18 All 246 (W): -- 'Birbal v. Emperor', 30 Cal 97 (X); -- 'Puna Mahtan v. Emperor', AIR 1932 Pat 315 (Y); --'Ramji v. Emperor : AIR1938All120 ; -- 'Emperor v. Kisanlal', 1939 Nag LJ 397 (Z) ; -- 'Ramaswami Chetti v. King : AIR1949Mad434 .
8. If we bear these principles in mind, it is idle to contend that what this public servant as defined in Section 21, Penal Code had done was not in good faith and under colour of his office. On the night in question it is in evidence that all the shops excepting the grocery shop of these accused were closed at that time. It is the duty of this P. W. 1 to make surprise visits and see that the regulations made under the Act are compiled with. It is also equally his duty to make entries in the book kept for that purpose in the shop. The only point urged is that this P. W. 1 must have known the Gazette notification which specified that the shops could be kept open till 11 p. m. on that day. It is seen from the evidence that this Gazette notification, which has been published very shortly before the date of this offence, was not known to both P. W. 1 and the accused and in fact in the lower Court this point was raised and disposed of as follows: The learned Sub-Magistrate writes:
'It was suggested that on shandy days the shops could be kept open till late in the night. P. W. 1 has stated that they apply only to hotels and establishments and not to shops.'
The appellate Magistrate writes:
'It has not been shown to me that the time rule was not applicable to the appellant's shop as it was a shandy day. P. W. 1 was questioned on this point bringing to his notice Section 7(1) of the Act. He has said that that section is applicable only to hotels and eating houses and not to grocery shops like that of the appellants.'
It will be noticed that the dispute in this case was not whether the shop could be Kept open till 11 p. m. but that the P. W. 1 wanted to note the time as 10-30 p. m. whereas according to the accused it was only 8-30 p. m. Even assuming that the shop could be kept open till 11 p. m., P. W. 1 could enter the shop and check the time and make a note of it. The question whether the shop can be kept open till 11 p. m. or not was a question to be decided with reference to prosecuting these accused for keeping the shop open after specified hours. Therefore, first of all P. W. 1 was within his rights in making the surprise visit and noting the result of his visit in the book kept for that purpose; and secondly, even though the act done or attempted to be done by him may not be strictly justifiable by law, he would be protected under the previous two clauses, viz., in good faith and under colour of his office.
9. The point of law taken therefore fails.
10. The final point for consideration is whether the act of the accused persons would amount to using criminal force with intent to prevent or deter a public servant from discharging his duty. The terms 'prevention' and 'deterrence' are not synonymous. In the first place, prevention does not mean only deterrence by physical force but by other means as well. Secondly, the distinction seems to be with reference to the stage of interference by the accused. Prevention means thwart, to hinder, to stop, to check or to restrain. Inspection or entry may be prevented at the very start. These words are sufficiently wide to take in the following acts: Constructive obstruction, or passive conduct by remaining within closed doors, or a mere withholding of assistance may not amount to obstruction. To merely run away when an officer enters may not be obstruction. But slamming of door in the face of an officer just when he was about to enter is obstruction. Mere evasion is insufficient to show obstruction. Similarly, obstruction has to be distinguished from mere objection or annoyance without using force or any threatening language. Mere objection or protest does not fall within the section unless it verges on threat which is likely to be carried out immediately -- 'Thakur Prasad v. Emperor', : AIR1933Pat74 (Z3); -- 'Queen-Empress v. Sommanna', 15 Mad 221 (Z4); -- 'Maturam v. Emperor', AIR 1924 Lah 233 (Z5); 'In re Thimmakka', AIR 1942 Mad 552 (Z6) -- 'Emperor v. Aijaz Husain, AIR 1916 All 53 (27); -- 'Queen-Empress v. Gayga-ppa', 2 Bom LR 541 (28); -- 'Ah Choung v. Emperor', and 1932 Rang. 21 (29) and -- 'Mt. Darkan v. Emperor', AIR 1928 Lah 827 (Z10). Threats may not amount to obstruction in all cases. The point for determination in such cases is whether the act of the accused was such as to prevent the public servant from carrying out his duties. If the acts of accused caused a public servant to abstain from proceeding with the task entrusted to him, the offence of obstruction is not made out. Where threats combined with an attitude of an aggressive character, or where there is an exhibition of dangerous weapons by the accused, or where the threat is likely to be carried out immediately, the offence of obstruction may be held to be made out: -- 'Nafur Sardar v. Emperor', AIR 1932 Cal 871 (211); -- 'Emperor v. Tohfa : AIR1933All759 ; -- 'Natihua v. Emperor : AIR1933All118 and -- 'Dukhan Sahu v. Emperor', : AIR1937Pat633 (214). To constitute obstruction actual physical force is not necessary. If there is sufficient indication that force would be used if the officer persists in executing the work he is commissioned to do, it would be sufficient to constitute obstruction. If it is shown that fight would ensure if officer proceeds to execute his work it would be obstruction: -- 'Emperor v. Annawadin', AIR 1923 Rang 231 (215). Even the use of abusive language as a result of which sale had to be adjourned by an officer was held to be obstruction: -- 'Provincial Government C. P. and Berar v. Balaram Jagannath', AIR 1933 Nag 529 (Z16). Blocking gateway or deliberately placing a cycle in front of a police constable and thereby preventing him from dealing with an offender was held to be obstruction under the Penal Code. Similarly, closing a house and thus preventing a policeman from removing stolen articles found in the room and threatening to kill him was held to be obstruction. Again obstruction like jostling an officer was held to bo an offence: --'Emperor v. Babulal Munnilal', AIR 1936 Nag 86 (Z17); -- 'Narayana Raju v. King-Emperor', AIR 1924 Mad 760 (Z18) and -- 'Mt. Jatto v. Emperor', AIR 1915 Lah 456 (Z19).
11. The facts alleged in the instant case and found concurrently by both the lower Courts certainly constitute use of criminal force to deter a public servant from discharging his duties.
12. The conviction is technically correct and is confirmed. In regard to sentence I must point out that this is a case where in the first instance there should have been no prosecution. The evidence on record shows that this P. W. 1 did not behave considerately tactfully and courteously which is the minimum standard of conduct that is required of public servants in general and subordinate officials engaged in enforcing Acts like the Madras Shops and Establishments Act in particular. It is incumbent upon these subordinate officials to bear in mind the wise words of Dr. Sethna in his foreword to Borkar's Bombay Shops and Establishments Act:
'In Social legislation, the most important factor of consideration in the enactment of law is that of bringing about harmony between classes, especially capital and labour. Without capital, labour cannot prosper, without co-operation & welfare of labour, the capitalist or the employer cannot thrive. How can that desirable and harmonious relationship be brought about, so as to produce the common good Of society -- the 'sum-mum bonum'? Not by mechanical legislation or provision of all sorts of penalties to be enforced indiscriminately without consideration of the circumstances of the case, but by a persuasive and guiding policy oa the part of the factory inspectors who should advise rather than straightway take the case to the doors of a police Court to have the offender convicted : If the proper guidance that is required to be given by the factory and shop establishment officers is given to employers, the employers will surely work with a spirit of lending success to so important and so desirable a legislation. These Acts, which are meant for the welfare of the employees as also the employers and are sponsored through by a well-meaning and beneficent Government, should be welcomed by all men of rational thought. It is the duty of the citizen to co-operate with the administration ; for in the strength of the State is his own strength, and in the good of those who work under him is his own good. The good citizen must help the Government and should carry out the 'Sentential legis'. But then the officers of the Government also should tarry before rushing forward to police Courts those, who innocently fall into the pitfalls of the technicalities of the law. In a complicated age of laws -- all not easy to understand -- the layman should be looked upon with an eye not of severity but of guidance and warning. All wilful defaults should be made punishable; but innocent or technical or unwilful defaults should not be punishable without warning to the technical or the 'pseudo' offender. Just as in the Companies Act defaults are punishable only if the same are knowing and wilful, defaults under the Shops and Establishments Act should be punishable only if the same are knowing and wilful, but not otherwise. The learned Registrars of Joint Stock Companies enforce the filing of documents and compliance with the provisions of the companies Act, mainly after giving notice to the offender to make good the default. Prosecutions are launched, as a rule, after the offender has been found knowingly and wilfully in default. The same course of administrative tendency is highly desirable in the case of the working and enforcement of Acts such as the Shops & Establishments Act, if the utmost willing co-operation of the employees is to be won by the administration.'
See also -- 'Superintendent and Remembrancer Of Legal Affairs, Bengal v. H. E. Watson : AIR1934Cal730 (Per Mcnair J.).
13. The fine amounts are reduced to Rs. 5 in each case and the excess fines if collected will be refunded.