Banerjee and Sale, JJ.
1. The question raised in this case is whether the conviction of the petitioners under Section 186 of the Indian Penal Code is legal. They have been convicted under that section for obstructing a butwara Amin who proceeded to measure some lands in the course of partition of an estate under Bengal Act VIII of 1876. That the Amin was technically obstructed is not denied; that is to say, it is not denied that the Amin was told that he should not measure the lands he wanted to measure; but the accused deny having done anything more than that; nor does the Deputy Magistrate find that the obstruction was of any aggravated kind. The question, therefore, is reduced to this, namely, whether the accused, by preventing the Amin from measuring the lands in question, voluntarily obstructed a public servant in the discharge of his public functions within the meaning of Section 186 of the Penal Code. Now, the petitioners are not co-sharers in the estate under partition, which is estate No. 546 on the rent-roll of the Patina Collectorate. The land which the Amin wanted to measure, and was prevented from measuring, is stated by the Amin in his report submitted to the Deputy Collector to be the common land of estate No. 546 and of certain other estates; and the Amin, in the report just referred to, stated that the accused objected to his measuring the land on the ground that it had been divided amongst the maliks of the different estates, and different portions of it had been held separately by them. Upon this report of the Amin, the Deputy Collector in charge of the butwara proceedings thought that the case came under Section 112 of the Partition Act (Bengal Act VIII of 1876), which enacts: 'Whenever any lands are held in common between the proprietors of two or more estates, one of which is under partition in accordance with the provisions of this Act, the Deputy Collector shall first allot to the estate under partition, a portion of such common lands of which the assets are in proportion to the interest which the proprietors of such estate hold in the said common lands; and all the provisions of this Act in respect of the allotment between the shareholders in one estate, of lands which are held jointly by such shareholders, shall, as far as possible, apply to the allotment of the proportionate share of such common lands to the estate under partition; and in respect of the service of notices, hearing of objections, and all other procedure in view to such allotment, the proprietors of the estate under partition, and the proprietors of all other estates who have an interest in the said common lands, shall be deemed to be joint proprietors of a parent estate, consisting only of the lands so held in common.' If, therefore, the case came under Section 112, it would, as it seems to us, follow that the Amin would have authority to measure the lands in question in the same way as he had authority to measure the lands of the estate under partition which was held by the co-sharers in that estate exclusively. But in addition to the provisions contained in Section 112, there are certain other provisions relating to the subject of the measurement of lands not held exclusively by the co-sharers of the estate under partition, or lands as to the title to and possession of which there is dispute or doubt. These provisions are to be found in Section 116 of the Act, which provides that 'if a dispute or doubt shall be found to exist as to whether any lands form part of the parent estate, the Deputy Collector shall enquire into the fact of possession, and shall report his conclusions with the reason thereof to the Collector, whereupon,' the section goes on to provide: 'The Collector may (whether the possession of disputed lands is with the proprietors of the parent estate or otherwise) order that the partition be struck off the file,' or hold a preliminary enquiry, and issue further directions depending upon the result of such enquiry. A comparison of these two sections of the Partition Act goes to show that Section 112 is limited to those cases where the community of interest in the land in dispute between the proprietors of the estate under partition as a body and the proprietors of other estates is admitted. In the present case it is not at all clear that such community of interest is admitted, and the evidence for the prosecution leaves it in doubt, to say the least, whether the case comes under Section 112 or Section 116. If it comes under Section 116, the measurement Amin, without a special order from the Collector, made after the preliminary enquiry referred to in that section, could have no lawful authority to measure the lands in dispute; and if the case therefore came under Section 116 of the Partition Act, the petitioners could not be held to be guilty of the offence of obstructing a public servant in discharge of his public functions within the meaning of Section 186 of the Indian Penal Code. As the evidence for the prosecution leaves the matter in doubt, the accused are clearly entitled to the benefit of that doubt.
2. A question might be raised as to whether, though not strictly authorized by law to measure the lands in dispute, still the butwara Amin, when he proceeded to measure the lands in the course of the butwara proceedings, was not acting in the discharge of his public functions. In one sense, no doubt, his proceeding to measure the lands could only have been in the course of his duty as a butwara Amin. He could have no private interest in the matter. But we are of opinion that the question must be answered in the negative. The public functions contemplated by Section 186 must mean legal or legitimately authorised public functions. They could not have been intended to cover any act that a public functionary might choose to take upon himself to perform; and, if that is so, and, as we have said above, if the case comes under Section 116, it would not be within the legitimate functions of the Amin to proceed to measure the lands without express authority from the Collector. This view is, we think, fully supported by the cases of Beg. v. Bhagtidas Bhagvandas 5 Bom. H.C. Cr. 51; and Queen-Empress v. Tulsiram I.L.R. 13 Bom. 168. The result then is that this rule must be made absolute, and the convictions and sentences set aside, and the fines, if realized, refunded.