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Bhai Lal Chowdhry Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal417
AppellantBhai Lal Chowdhry
RespondentEmperor
Excerpt:
defence - right of private defence--public servant--unlawful assembly--public servant acting in good faith under colour of his office--institution of proceedings--criminal procedure code (act v of 1898) sections 87, 88, and 190.--penal code (act xlv of 1860) sections 99, 143 and 183. - .....the course of the attachment an objection was raised by another person that the property which the police officer was attaching did not belong to the absconders. the police officer very properly referred to the patwari, who was present, and being assured that it was the property of the absconders, he proceeded to make the attachment. at this time a mob had assembled, and it has been found that these men by threatening language and also by threatening attitude combined to overawe the police officer in execution of his duty. the police officer then wished mr. edwards, an indigo-planter, who was the complainant in the case against the absconders, and others, to leave for the purpose of giving information to the subdivisional magistrate of what had taken place, and the police officer says.....
Judgment:

Prinsep and Stephen, JJ.

1. There is no ground for our interference in this matter in revision. Undoubtedly there was an occurrence. This has been found by the Subdivisional Magistrate and by the District Magistrate on appeal. It appears that, having reason to believe that certain persons accused of an offence had absconded, the Subdivisional Magistrate, after being unable to arrest them, issued a proclamation under Section 87 of the Code of Criminal Procedure and, at the same time, an order of attachment of their property under Section 88. In this respect the Subdivisional Magistrate's order was in accordance with law. In the course of the attachment an objection was raised by another person that the property which the police officer was attaching did not belong to the absconders. The police officer very properly referred to the patwari, who was present, and being assured that it was the property of the absconders, he proceeded to make the attachment. At this time a mob had assembled, and it has been found that these men by threatening language and also by threatening attitude combined to overawe the police officer in execution of his duty. The police officer then wished Mr. Edwards, an indigo-planter, who was the complainant in the case against the absconders, and others, to leave for the purpose of giving information to the Subdivisional Magistrate of what had taken place, and the police officer says himself that he abstained from making any further attachment. There can be no doubt that on these facts the Subdivisional Magistrate and the District Magistrate on appeal have rightly convicted the accused, who were present, of being members of an unlawful assembly. They have also been convicted under Section 183 of the Indian Penal Code, and this raises the question whether the order which the police officer was executing was a lawful order. It has been argued before us that, inasmuch as no proclamation had been made, the attachment was not a lawful attachment. We observe that both the Courts have found facts which unmistakably show that a proclamation was made at the place an hour before the police proceeded to attach the property. This disposes of the objection. The Rule, however, has been granted on two grounds: first, that the proceedings in this case have not been properly instituted, and secondly, that the evidence does not disclose the offence charged. On the second point we have already expressed our opinion. In regard to the first point, it appears that Mr. Edwards was sent by the Inspector to inform the Magistrate of what had taken place. The Magistrate thereupon sent the Senior Inspector to the spot to take up the case, instructing him, in order to comply with the law, as he read it, that he should take the statement of the Sub-Inspector as the first information of the occurrence and send it in to him (the Magistrate), so that proceedings might be taken. We do not see that on such a foundation it can be properly said that the proceedings in this case have not been properly instituted.

2. We may add, with reference to the facts found in this case, that even supposing that the property attached was not the property of the absconders, the rightful owner had no right of private defence of his property, inasmuch as the evidence shows that the police officer was acting in good faith under colour of his office; and even supposing that the order of attachment might not have been properly made, that would in itself be no sufficient ground. The law, as expressed in Section 99, explanation 2, of the Indian Penal Code, is clear on this point. The Rule is therefore discharged.


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