1. In this case we have before us, first of all an appeal preferred by the Government against an order of acquittal passed by the Subdivisional Officer of Netrokona. That officer had before him a number of accused persons who were prosecuted out of the circumstances that arose when the nazir of the civil Court went with a large party of the auction-purchaser's men to give possession of certain land under Rule 95, Order 21, Civil P.C. It appears clear and it is accepted by the trying Magistrate that on 4th April 1931 the nazir with his peons and with these men of the auction-purchaser went in the morning to the land in question. The nazir allowed a substantial time for the employees of the auction-purchaser to come to terms with the judgment-debtors. After a while according to him after 2&frack12; hours he refused to wait any longer and told the judgment-debtors' party to remove their women and chattels. The women and the chattel were removed from the huts. Thereupon, Alimuddin certainly and it may be others of the respondents also objected to the taking down of the huts. They objected apparently on the ground that the writ was only to give delivery of possession of the land and was not to give delivery of possession of the huts. There was however nothing in this objection and it was necessary to remove the huts in order to give delivery of possession of the land.
2. It is quite clear upon the evidence that the judgment-debtor's party which was a large party present on the land was given every opportunity to remove the huts themselves. They refused to do so and thereupon the nazir said that the decree-holder's people should remove the huts and they proceeded to take down the huts some of which were covered with corrugated iron sheets. When these people were removing Alimuddin's hut, Alimuddin gave orders and it is proved that each and every one of the accused before us except perhaps Darogali on the order of Alimuddin chased the nazir, his peons and the decree-holder's men with lathi, dao and other weapons and drove them from the place thereby not only committing assault but obstructing further processes of the Court. The nazir wrote his report the next day and it was filed on 7th April. This story and the complicity of each of the accused as stated above is clearly made out on the evidence and the evidence of the occurrence as I have endeavoured to describe it was satisfactory to the trying Magistrate. It may here be added that as regards the accused Darogali, it was proved that at the time when the party of the nazir was being driven from the site this accused set fire to one of the huts which contained some straw which was easily inflammable. It is quite clear that the idea was that by setting fire to one of these huts the accused would be able to make out that the nazir and his party had committed some excess in the course of the execution. The trying Magistrate was satisfied of this and he convicted this accused Darogali under Section 193, I.P.C., for fabricating false evidence and sentenced him.
3. As regards the other accused and also as regards Darogali on the other charges, however, the trying Magistrate arrived at the verdict of acquittal and the reasons which led him to that verdict, are these: He says that as regards one of the huts at least which was in the shape of a gable roofed hut some of the sheets of corrugated iron were bent and that the posts which supported the chal had not been properly and carefully dug out and uprooted but had been cut through two or three feet from the ground. He says that this was not done with any improper motive but it was a careless way of proceeding to demolish the hut. As he says that this was done with want of due care therefore under Section 52, I.P.C., he thinks the absence of sufficient care and attention means that the huts were not demolished in good faith. Thereupon he goes on further to say that the party of the nazir were committing mischief by carrying out this execution. That being so he further says that there was a right of private defence on the judgment-debtors' party and, on the basis that there was a right of private defence on the judgment-debtor's part, the last step in his reasoning is that Section 99, I.P.C. did not in any way disentitle these accused persons from using force against the nazir and his people. Section 99 says
there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt if done or attempted to be done by public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law
there is no right of private defence against, an act which does not reasonably cause the apprehension of death or of grievous hurt if done or attempted to be done by the direction of the public servant acting in good faith under colour of his office.
4. In my judgment there was no want whatsoever of good faith on the part of the nazir in giving instructions to have these huts removed. The circumstances that the judgment-debtors refused to remove the huts themselves for which they were given an opportunity and insisted that if they were to be removed they should be removed by the nazir's men with his authority means that it is quite unreasonable to complain that the utmost degree of skill was not utilized in taking down the huts so as to give the decree-holder possession of the land. What is suggested is that there was a better way of taking down these huts than by cutting the posts near to the ground and that a more elaborate process would have avoided some slight bending of the corrugated iron sheets. I have no doubt at all that in giving direction that the huts must be taken down the nazir acted in good faith. I cannot agree with the trial Magistrate that there was any question of private defence available to the accused persons in the present case; neither can it be said for a moment that because the ordinary writ under Order 21, Rule 95, Civil P.C. does not particularly mention delivery of huts or removal of huts the huts cannot be removed. The auction-purchaser is entitled to get the property without the property being burdened with those huts. As a part of delivering possession the taking down of these huts does not appear to have been done with any disregard to any right of the judgment-debtors which they had under the proper procedure. In those circumstances the reasons which the trying Magistrate has given for finding not guilty a large body of persons who attacked the nazir land his party with armed weapons seem to me to be without any substance.
5. I have carefully considered and all the more carefully in view of the fact that the accused persons in this appeal have not been represented before us the evidence as regards each individual person. That Alimuddin the person who gave the order was the leading spirit is abundantly clear. It is also clear that each of the others except perhaps Darogali took part in chasing the nazir and his party. I take it on this evidence that the nazir and his party on being threatened retired and escaped any actual battery, though, of course it may be said that every one of the accused persons is guilty of assault. Still what happened was that by threat of force and immediate threat of force the nazir and his party were driven out of the field. In these circumstances the charges against each of these individual accused are of unlawful assembly of obstructing a public officer in the discharge of his duty and of assaulting a public officer in the discharge of his duty. As we are dealing with this case here and in the absence of the accused, I do not propose to take action against them under Section 143, I.P.C. No doubt they would be technically guilty of unlawful assembly the moment they started chasing the nazir. On the other hand they were living at the spot and they all congregated at the place necessarily and it would be a somewhat technical view of the matter to punish them for unlawful assembly. In the same way while they are technically guilty of assault, as there is no very detailed evidence as to the weapon with which each person was armed or what he actually did in this connexion, I do not propose to find them guilty on that charge or to impose any separate sentence. The real substance of this matter is that they prevented the nazir from giving possession of the land, that they obstructed him in the discharge of his duty and that they did so by force and by a threat of force.
6. As regards Darogali however I am not quite sure about his participation in this. But as he has already been convicted and sentenced under Section 193, I.P.C., his case may be left out of consideration. The appeal as against him will be dismissed. In these circumstances it appears tome that we should treat this case as a case under Section 186, I.P.C., and in my judgment it will be sufficient if we convict each of the accused except Darogali on the charge under that section. As the offence under Section 186, I.P.C., is of a somewhat grave character, Alimuddin as the principal person must be sentence to three months' rigorous imprisonment and each of the other accused except Darogali will be sentenced under the same section to two months' rigorous imprisonment. It remains then to say that this matter came before the learned District and Sessions Judge who made a reference to this Court under the provisions of Section 438, Criminal P.C. (Reference No. 28 of 1932) asking us to set aside the verdict of acquittal and to direct a further inquiry. In view of the matter having been brought to a conclusion in Government Appeal No. 1 of 1932, just now dealt with, it will not be necessary to make any order on that reference except to say that in my judgment it was a very proper reference to make.
7. The learned Sessions Judge had also to deal with another aspect of the matter. It appears that just before the civil Court made its complaint to the Magistrate against this treatment of the nazir, on 8th April a complaint was made to the Magistrate on the part of the judgment-debtors. In the end the Magistrate issued summonses upon two persons of the auction-purchaser's party namely, Ramesh Chandra Dutta and Nathu Singh, the complaint against these people being of causing mischief by burning down huts. This complaint was brought by Hatimuddin and was against the two persons I have named. As it has now been found in a proceeding in which Hatimuddin is a party and in which he had the advantage of being in the position of defendant, the burden of proof being on the prosecution that the burning of the huts and the attack upon the nazir's party was the act of the judgment-debtors' party, it seems to me that this counter case is one which ought not to be allowed to go further. The learned Sessions Judge has made a reference to this Court (No. 75 of 1932) recommending that the order made for issue of summonses on these two persons Ramesh Chandra Dutta and Nathu Singh of the decree-holder's party be set aside and that the proceedings against them be quashed. In my judgment that reference ought to be accepted and the order which the learned Sessonsi Judge has recommended ought now to be made.
8. I agree.