1. The petitioner has been convicted of an offence under Section 353, Indian Penal Code, and sentenced to six months' rigorous imprisonment for having assaulted a public servant, namely, a peon of a Civil Court, while he was delivering possession of a share in a tank to a decree-holder purchaser. A co-sharer of the petitioner was the judgment-debtor in the civil suit and had been ordered under a decree to make over possession of. 6 annas out of the 16 annas of the tank, to the decree-holder. The decree-holder obtained a writ of delivery of possession and was accompanied by a peon to whom a direction was given in the writ that he was to give delivery of possession of the share in the tank by 'catching fish' in the tank. On the day on which the occurrence took place the decree-holder accompanied by the peon and some fishermen came to the tank and the peon ordered the fishermen to cast their nets in the tank and catch fish for the decree-holder. The petitioner on behalf of his co-sharer, finding that fish was to be caught in this manner, came and objected and when his protest was not listened to he rushed into water and with a knife cut some of the nets. Thereafter there was a protest by the decree-holder as well as the peon and the petitioner ran up to them. That constitutes the assault in this case. When the peon declared to the petitioner that he had been acting under the orders of the Civil Court and his authority was disclosed, the petitioner desisted from actually striking either the decree-holder or the peon. On this case the petitioner has been convicted.
2. It is contended before us by the learned Vakils appearing on behalf of the petitioner that by permitting the fishermen to cast their nets therein the peon acted in excess of his authority, inasmuch as he had no power given to him by the parwana to catch fish in the tank. It has further been contended on behalf of the petitioner that the Munsif had no power to give a direction in the parwana that possession was to be given by permitting the decree-holder to catch fish in the tank. Whatever mistake there may be in the procedure of the Munsif, if there was any at all, by giving this direction, the petitioner had no right of private defence against the peon who was acting under the colour of his office and in good faith, though the act might not be strictly justifiable by law. The provisions of Section 99, Indian Penal Code, clearly confer no right of private defence on the petitioner against the action of the peon who was a public servant. In this view we think that the conviction is sound and cannot be set aside. But the sentence passed on him appears to us to be extremely harsh. According to the case for the prosecution the petitioner, so long as he did not know that the person giving possession was a peon, that is, a public servant, was agitated and appeared to give opposition. But as soon as the official status of the peon was disclosed to him and his authority pointed out, the petitioner subsided into a peaceful attitude and offered resistance no more. We think that in a case like this, where the petitioner even in a state of excitement showed so much respect for the law as he did by submitting to the authority of the public servant when his official designation was explained, a fine of Rs. 50 would amply vindicate the law for the technical offence of an assault on a public servant. We accordingly reduce the sentence passed on the petitioner from six months' rigorous imprisonment to a fine of Rs. 50 (Rupees fifty) or in default of payment a fortnight's rigorous imprisonment. This Rule is made absolute to that extent.