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The Superintendent and Remembrancer of Legal Affairs Vs. Baroda Kanta and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal79,66Ind.Cas.1003
AppellantThe Superintendent and Remembrancer of Legal Affairs;nityananda Das and ;sarat Chandra Ghosh
RespondentBaroda Kanta and ors.;manoranjan Majumdar
Excerpt:
penal code(act xlv of 1860), section 225b - resistance to execution of civil court warrant. - .....assaulting the peor, nawab ali, whose duty it was to arrest or assist the bailiff in arresting baroda kanta. somiran was further charged with assaulting the bailiff and with removing the peon's badge. the preterit appeal is directed against the order or acquittal made in the case of all three by the fourth presidency magistrate.2. the accused baroda kanta majumdar owed seme rs. 700 under a small cause count decree obtained against him by one sarat chandra ghosh. in execution of this decree a warrant for the arrest of barada kanta was issued. on the morning of the 13th july, the decree-holder, bailiff nityanauda das and peon, nawab ali, proceeded to house no. 14, jagurnath sur lane, in which baroda with his wife and son occupied two rooms, in order to execute this warrant. that the.....
Judgment:

Teunon, J.

1. In this case one Baroda Kanta Majumdar was placed on his trial on a charge of offering resistance to his lawful apprehension and of escaping from lawful custody, offenses punishable under Section 285 B of the Indian Penal Code. Two co accused, his son Monoranjan and one Somiran, were charged with rescuing Baroda from lawful custody. All three were further charged with assaulting the peor, Nawab Ali, whose duty it was to arrest or assist the Bailiff in arresting Baroda Kanta. Somiran was further charged with assaulting the Bailiff and with removing the peon's badge. The preterit appeal is directed against the order or acquittal made in the case of all three by the Fourth Presidency Magistrate.

2. The accused Baroda Kanta Majumdar owed seme Rs. 700 under a Small Cause Count decree obtained against him by one Sarat Chandra Ghosh. In execution of this decree a warrant for the arrest of Barada Kanta was issued. On the morning of the 13th July, the decree-holder, Bailiff Nityanauda Das and peon, Nawab Ali, proceeded to house No. 14, Jagurnath Sur Lane, in which Baroda with his wife and son occupied two rooms, in order to execute this warrant. That the decree holder and his party went to arrest Baroda Kanta is not disputed but while the prosecution witnesses say that Baroda came outside, was there arrestee, rescued and escaped, the defense says that Baroda was arrested within one of his two rooms, there struggled and made resistance, and was assisted by his son, Manoranjan, in effecting his escape. It is further said that in this room', there was a lady, presumably Baroda's wife. The Magistrate has apparently accepted the case for the defense and, finding that the warrant was not shown to Baroda, and, that the Bailiff and decree holder were not entitled to enter the room, holds that Baroda was entitled to resist and his son entitled to assist him. On these grounds he acquits Baroda and his son. The third accused he acquits on the ground that he was not present. Now it is not necessary that a Bailiff executing a Civil Court warrant should in the first instance show the warrant. It is sufficient that he should apprise the person to be arrested of the contents of tie warrant and show it if desired. [Rajani Kunio' pal v. Emperor 5 C. W. N. 843, and Abdul Rahaman Sahib, In re 24, Ind. Cas. 175 : 15 Cr., L. J. 439 : 1 L. W. 500, But it is quite clear in this case that the Bailiff was armed with the warrant issued, and it is further clear that Baroda well knew the purpose of tie decree-holder and the Bailiff's visit. There could be no reason why the Bailiff should seek to withhold or conceal his warrant, and we have no doubt on the evidence that the warrant was in fast shown.

3. Even if we were to believe that the Bailiff and the decree holder followed the judgment debtor into the room there was no reason why they should not do so. This was no case of breaking open an outer door and the room itself was the outer of the two rooms occupied by Barcda. The presence of a woman therein was not even suggested to any one of the prosecution witnesses.

4. As to the alleged assault on the decree-holder, the peon and the Bailiff, the evidence is conflicting but what emerges beyond all dispute is that Baroda Kanta was arrested in execution of a warrant issued by the Small Cause Court, made his escape, and was assisted in so doing by the son Manoranjan. We, therefore, find these two guilty under Section 225B, Indian Penal Code, and sentence them, Baroda Kanta to pay a fine of Rs. 100, in default to undergo rigorous imprisonment for six weeks, Manoranjan to pay a fine of Rs, 50, in default to undergo rigorous imprisonment for one week. The evidence leaves some doubt as to the identify of the third accused, Somiran and, in his case we, therefore, do not disturb the order of acquittal.

Ghose, J.

5. I agree.

Teunon, J.

6. These applications in revision arose out of one and the same criminal case, It appears that one Sarat Chandra Ghosh obtained a decree in the Presidency Small Cause Court against one Barada Kanta Majumdar and in execution for the balance due (same Rs, 700) took out a warrant for the arrest of the judgment-debtor. On the 13th of July about 7, M he, accompanied by the Bailiff, one Nityananda Das entrusted with the execution of the warrant, proceeded to 14, Jugarnath Sur Lane, the house in which the judgment-debtor occupied two rooms.

7. It is not disputed that the Bailiff and the decree holder did on the day in question go to 14, Jugarnath Sur Lane, in order to execute the warrant entrusted to the Bailiff, What happened on their arrival is in dispute. The complainant who is the son of the judgment-debtor alleges that the decree holder and the Bailiff caught hold of the judgment debtor at the door of his room, and that when the judgment-debtor tried to extricate himself, they followed him up into the room, in which was also the judgment-debtor's wife; when the son assisted his father in freeing himself, the Bailiff pushed him and knocked him over.

8. The Trying Magistrate has found that the judgment-debtor's wife was in fast with him in the room, that the Bailiff did not show his warrant, that the son did not know that Nityananda was a Bailiff, and was, therefore, justified in seeking to extricate his father and that the Bailiff was not justified in pushing him over. On these findings he has convicted the decree-holder Sarat Chandra Ghose, of the offense punishable under Section 448 and the Bailiff, Nityananda, of the offense punishable under Section 352 of the Indian Penal Code.

9. We are unable to accept the conclusions arrived at by the Trying Magistrate. It is not necessary that a Bailiff executing a Civil Court warrant should show his warrant in the first instance. It is sufficient that he should apprise the parson concerned of its contents and thereafter show it, if desired. Now it is quite dear from Biroda Kanta's statement that he knew both the Bailiff and the decree-holder, and well knew why they sought to arrest him, Apart from that, there was no reason why the Bailiff should not display his warrant and we do not believe that he failed to do so. The evidence of the son and of his father taken together next shows that this, was no case of breaking open, or even opening either outer or inner door. The Bailiff and the decree-holder were justified in following up the judgment-debtor into his room, the outer of the two rooms occupied by him. We are not satisfied that the lady was in fast present in that room, and no objection to their entry was taken on that score. The story of his assault on Manoranjan we can but regard as an embellishment or exaggeration. We, therefore, bold that it has not been shown that either decree-holder or Bailiff did more than they were entitled to do in execution of the warrant obtained by the decree-holder and entrusted to the Bailiff.

10. We, therefore, set aside the conviction of and the sentence imposed on each of the petitioners and direct that the fine, if paid, be now refunded.

Ghose, J.

I agree.


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