1. In this case the accused, petitioner one H. Meredith, a bailiff of the Small Cause Court, has been convicted under Section 323 of the Indian Penal Code and sentenced to pay a fine of Rs. 50.
2. It appears that at about 4 P.M. on the 31st of January 1913, he was entrusted with a writ or warrant (Exhibit M) which required and authorised him 'to give possession' to the decree-holder Kali Charan Pal, of certain premises then in the occupation of the judgment-debtor, Purna Chandra Pal. As the warrant was to be executed that very day, he forthwith proceeded on his errand, reached the premises (No. 4, Jagannath Suri's Lane) at or about 4-30 to 4-45, and, as he reported on the 31st, succeeded 'after considerable difficulty' in giving vacant possession to the decree-holder at five minutes after 6.
3. At 11-45 P.M. a complaint was lodged against him and his companion, one Boms-witch at the neighbouring thana. The complaint was made by the judgment debtor, Purna Chandra Pal, or by the judgment-debtor's wife, one Sanjibani Dasi, and was summarised in the thana 'Daily Register of Cases' as follows:
Assault(i.e., on Sanjibani), abrasion marks (chila dag) on both elbows, abrasion mark on right knee, and pain all over the body complained (or spoken) of: (she) does not want to go to hospital.
4. On the following day, the 1st of February the woman Sanjibani presented a complaint before the Chief Presidency Magistrate. The complaint recites that when required by the bailiffs (Bomswituh was then supposed to be a bailiff or assistant bailiff) to leave, the husband represented that having had no previous notice lie was not prepared to move out immediately, and prayed for 24 hours' time. It then proceeds to say that being thereby enraged the two accused (1) threw out the household articles with the help of coolies, (2) broke the kitchen utensils and destroyed the food then under preparation, (3) had the complainant's child removed from her arms and carried out by a peon, (4) that the accused Meredith next caught hold of her by the hand, forcibly dragged her out of the house, and pushed her, and (5) that, when (in consequence of the push) she fell, both accused kicked her.
5. The complaint next refers to a medical examination by a Doctor, and a certificate furnished by him and also to an information 'sent after some time to the local thana' It may be here observed that to the charges made in the complaint the husband and other prosecution witnesses at the trial added the further charge that at the time in question both accused were drunk.
6. The accused Meredith's defence is to be found in the report submitted to the clerk of the Small Cause Court on the 3rd of February. It may conveniently be mentioned here that on the 1st of February Meredith had reported verbally to the clerk, Mr. Nuttall, and, on his orders, had submitted a written report which cannot now be found. That such a report was, however, submitted is clear from the evidence of Nuttall and also from the evidence of Mr. J.G. Gupta, now an Additional Judge and at that time 'Registrar of the Court. Mr. Gupta, being of opinion that the report was lacking in detail, required the submission of a further report and this order resulted in the submission of the report of the 3rd February, Exhibit N. That the report of the 1st February should be missing is mach to be regretted, but for present purposes it is sufficient to say that it does not appear that the accused Meredith is in any way responsible for the loss.
7. In the report of the 3rd February the bailiff states that the judgment-debtor did ask for time, that the decree-holder refused to listen, that while coolies were removing the household properties, a Pleader named K.D. Mitter appeared, said that 24 hours notice should have been given and directed the woman not to leave. The bailiff proceeds to say that he then sent four messengers one after the other to the local thana for assistance, proceeded with the removal of the properties, and had a gharry fetched for the women of the house. On the arrival of the gharry the complainant went to the door, whereupon the bailiff stepped behind her. He continues that at the instance of the Pleader already mentioned first the woman and then the judgment-debtor, her husband, tried to push past him, and that when he turned to shut the door he was struck two blows on the head from behind.
In the report no reference is made it may be observed, to the incident of the child.
8. The case came on for trial before Mr. Keays, the 2nd Presidency Magistrate, who on the 3rd of May 1913 delivered judgment acquitting the accused. For the purpose of completing this narrative it may be mentioned that his findings were (1) that the allegation that the accused were drunk had no foundation in fact, (2) that the bailiff sent at least three messengers to the local thana for assistance, (3) that the evidence regarding the alleged kicking could not be accepted and (4) that he, therefore, could not act on the evidence to the effect Hint the accused bailiff had given the complainant a push, In fact he appears to have been of the opinion that the defence was true and that the trifling injuries sustained by the complainant were sustained in her efforts to push her way into the house which she had left.
9. Against Mr. Keays' order of acquittal the complainant moved this Court, which on the 23rd of October set aside the order of acquittal as against Moredith and directed his retrial mainly on the ground that the trying Magistrate had not Inquired into the authenticity of a certain letter of complaint (now marked Exhibit 1) said to have been written by Purno, signed by Sanjibani find taken to the thana by Purno at 7 to 7-30 on the evening in question.
10. The case against Meredith accordingly came on for retrial before the Chief Presidency Magistrate, Mr. Swinhoe, who on the 20th of May 1914 delivered judgment convicting the accused and sentencing him as we have already stated.
11. Mr. Swinhoe's findings are to the effect (1) that the prosecution story as to the letter, Exhibit 1, is substantially true, (2) that the accused bailiff was not drunk or under the influence of liquor, (3) that the bailiff experienced considerable difficulty in ejecting the women of the house, more particularly the complainant, and accordingly sent three or four messengers to the thana for assistance, (4) that in the hope of inducing the mother to go quietly the bailiff first had the child taken out, (5) that this device failing he became exasperated and palled or dragged the woman out of the house and lastly (6) pushed or jerked her from him in such a manner as to cause her to fall and so receive the injuries found on her elbows and knee.
12. He further found that the accused did not deliberately kick the complainant, but having come to this distinct finding he went on to say. 'I think it quite possible that on seeing her fall he went up to ascertain what had happened to her and pushed her more than once with his foot to make her rise.'
13. Against the conviction and sentence based on these findings, the accused moved this Court on the 24th July and being dissatisfied with the manner in which the case had been tried, we issued the present Rule in order to our examination of the evidence and our consideration of the question whether the accused had in fact exceeded his lawful authority in the execution of the warrant entrusted to him.
14. We have now been taken over the whole of the evidence and have had the advantage of hearing the learned Advocate General for the petitioner, and Babu Manmatha Nath Mukerji on behalf of the complainant, opposite party.
15. The warrant of possession, it is to be premised, was one issued under the provisions of Sections 41 to 43 of the Presidency Small Cause Courts Act XV of 1882, is in the English Common Law form, and 'requires and authorises' the bailiff 'to give possession.'
16. The contentious of the learned Advocate-General are: (1) that to the execution of this warrant in the Presidency town of Calcutta the provisions of the English Common Law are applicable, (2) that on the refusal of the complainant to vacate, the accused bailiff was justified, and indeed, in order to complete the execution of the warrant, was required to remove the complainant from off the premises by the use of such force as might be found necessary, (3) that in dragging or pulling the complainant out of the house and pushing or jerking her so as to cause her to fall, the bailiff did not in fact use excessive or unnecessary violence, (4) that the passage in the judgment regarding the touch or push with the foot does not embody a finding and lastly (5) that the more serious allegations of the prosecution having been disbelieved, no findings adverse to the petitioner should have been arrived at.
17. On the other hand on behalf of the complainant, opposite party, it is contended (1) that by reason of the provisions of Section 48 of the Presidency Small Cause Courts Act, the provisions of the Code of Civil Procedure (that is Order XXI, Rule 34) are applicable to a writ or warrant such as that now in question, (2) that by reason of the omission from the writ or warrant of the words 'and you are hereby authorised to remove any person bound by the decree who may refuse to vacate the same,' being the words used in warrant issued under Order XXI, Rule 35 (vide Form No. 11, first Schedule, Appendix E), the accused bailiff was not justified in using force, and on show of opposition or resistance should have proceeded in the manner indicated in Order XXI, Rule 97, (3) that in any view of the case in 'pushing or jerking the complainant from him in such a manner as to cause her to fall' and thereafter 'in pushing her with his foot to make her rise,' he used unnecessary and improper violence.
18. Whether the provisions of the English Common Law or of the Code of Civil Procedure are applicable to the writ or warrant now in question need not, we think, he decided in the present case Under the provisions of either law in the execution of a writ of possession a reasonable degree of force may he used in order to the removal of persons bound by the decree and refusing to vacate. That the complainant a dependent of the judgmant-debtor and asserting no independent right to the premises was bound by the decree is not questioned. In a writ of possession issued under the English Common Law words expressly authorising forcible removal are not inserted, but it is settled law that the orddr to 'give possession' authorises and requires the removal of all persons from off the premises by force, if need be. In the Small Cause Court it appears this form is followed and even if the Civil Procedure Code be applicable, the omission of the words expressly authorising removal is, in our opinion, immaterial. Order XXI, Rule 97, merely provides an additional or alternative remedy.
19. We are then unable to accede to the complainant's contention that the trying Magistrate has found as a fact that after the complainant had fallen the accused touched or pushed her with his foot. To say that a thing may possibly have happened is not to find that it did happen. The Magistrate, who was evidently not prepared to come to a definite finding that the accused touched the complainant with his foot, should have said so without ambiguity, and should have omitted from the judgment what is mere conjecture.
20. We are then left with the finding that 'on pulling or dragging the complainant out, the accused pushed or jerked her from him in such a manner as to cause her to fall and receive the injuries found on her knee and elbows.'
21. The complainant having obstinately refused to leave, and the hour being late, it has not been contended before us that in pulling her out of the house by her hand, the bailiff, in the view of the law we have taken, did more than he was justified in doing, But it is contended and no doubt properly contended that, the woman being once on the roadway, it was highly improper for the accused to proceed further to 'push or jerk her' so as to cause her to fall. It is, however, not disputed that between the dragging and the so-called jerk there was no interval and that the whole represented one continuous act. In effect then it comes to this that when the accused let go his hold, the force used for the purpose of pulling out the resisting complainant was sufficient to cause her to fall. In cases such as this it is impossible to calculate and apply with the utmost nicety the degree of force necessary and yet not more than sufficient. Even, therefore, on the Magistrate's own findings ' we think that the accused should not have been convicted.
22. But we should further say that we are not satisfied that the Magistrate's findings are correct. We need not discuss the evidence at great length, but we may observe that the Magistrate has accepted the prosecution story with regard to Exhibit 1, the letter of complaint said to have been taken to the thana at 7 or 7-30. That letter is of importance mainly from the point of view of the charges of drunkenness and kicking, but the Magistrate's estimate of the value of this letter has doubtless largely coloured his view of the rest of the evidence.
23. We are of opinion that he should not have relied upon this letter. It is not referred to in the complaint of the 1st of February, It was not put to the prosecution witnesses in their examination-in-chief. It was mentioned for the first time on the 4th of April in a volunteered statement made by Purno during his cross-examination at the 8th hearing before Mr. Keays, and was not produced before the 10th hearing on the 10th of April.
24. In the Thana Case Register there is no independent entry of the letter and of its receipt at 7 or 7-30. No doubt in the 'Thana Bengali Case Register' against the entry of Sanjibani's complaint at 11-45 in the column intended for the signature of complainant, above the signature of Purno Chandra Pal appears the word 'chithi' (letter), but in the English register submitted to the Deputy Commissioner at midnight, the entry in the corresponding column is merely a reference to the Bengali register implying that the signature would there be found. There is no reference to any letter, though according to the correct practice, no doubt not invariable followed, the word 'chithi' or letter should have been reproduced in the English register. Moreover the signature of Sanjibani on the letter is much more regular and more formed than that on the complaint, though in the agitation following upon the occurrences of the evening, the reverse was to be expected. No doubt the thana Sub-Inspector has supported the prosecution in respect of the letter, but it is to be observed that by reason of a stormy interview between him and Meredith, who went to the thana at about 6-30 to complain of the Sub Inspector's failure to send assistance, the Sub-Inspector has obviously reasons for irritation against the accused and it is on his evidence and on a belated entry relating to Meredith's visit that the discredited charge of drunkenness largely rests.
25. There has also been some controversy as to the medical certificate spoken to by the Medical Practitioner (L.M.S.) Phanindra Kumar Gupta. Such certificates, when filed with complaints in the Chief Presidency Magistrate's Court, it appears, are stamped and then returned for production at the trial. In the present case the certificate, Exhibit 3, was not produced at the trial before Mr. Keays until the 29th of March and it is suggested that it is not the certificate first granted and referred to in the complaint. As, however, it is not disputed that there were scratches on the complainant's elbows and one knee, the certificate is of importance only in so far as the reference therein to 'contusions on the back and loins' (reduced in the Doctor's deposition to an 'oval contusion an inch in size below the right shoulder') supports the discredited charge of kicking; we need not enter into this question. We may, however, take the opportunity of deprecating the return of such documents when once filed.
26. We may next observe that the trying Magistrate has apparently overlooked the fact that a sanction for the prosecution of the witness Krishna Dhan Mitter had been granted by the Chief Judge of the Small Cause Court and that this witness and the other witnesses concerned in him cannot, therefore, be regarded as wholly disinterested.
27. Lastly we have to say that the witnesses having been disbelieved with regard to the graver charges brought against the accused, for instance, the charges that he was drunk in the execution of his duty and that having thrown the woman down, he deliberately stamped upon and kicked her, we are of opinion that they cannot be safely believed with regard to the small residum of what the Magistrate has conceived to be truth.
28. For these reasons we make this Rule absolute, acquit the petitioner and direct that the tine, if paid, be refunded.
29. We might end our judgment here, but we are of opinion that in the public interests it is our duty to comment on the facts, brought to our notice in this case, in connection with the procedure followed both in the Small Cause Court and in the Courts of the Presidency Magistrates.
30. The arrangements which in the Small Cause Court permit of the disappearance of papers and do not permit op their being traced to some officer or person who can be held responsible must, in our opinion, be defective.
31. We have next to observe that in taking with him as an assistant one Bomswitch who, it appears, is not a bailiff or assistant bailiff or other Court or Government officer, Meredith's conduct, if not permitted by the rules, of the Court, was reprehensible. If permitted by the rules of the Court, the practice, if it be practice, should, we think, be strictly forbidden.
32. Lastly, the evidence shows that in this case the writ of possession, to be executed on the 31st January, was not handed over to the bailiff until at or about 4 P.M. of that day. The bailiff, it appears, protested but the Clerk of the Court insisted upon immediate execution. It would seem to be obvious that a writ of this nature, involving in many cases, as in this case, the ejectment without notice of persons in peaceful possession of their houses should be put into execution at a much earlier hour. To do otherwise is unfair to the bailiff, must necessarily cause much gratuitous hardship, and so bring the Court into disrepute.
33. Turning now to the Courts of the Presidency Magistrate we have to say that we view with grave concern the procedure that has been followed in this case. In the Court of the second Presidency Magistrate the trial began on the 12th of March 1913 and did not close till the 3rd of May. In the course of this one month and 22 days there were so many as 17 hearings for the examination of witnesses, on each occasion 1, 2 or at most 3 witnesses being examined or cross-examined either in whole or in part.
34. In the Court of the Chief Presidency Magistrate the re-trial opened on the 5th December 1913 and judgment was not delivered until the 20th of May 1914. The trial then extended over a period of 51/2 months, and in the course of the 51/2 months the case was put down for hearing on as many as 38 days. At 25 hearings, lasting on many occasions apparently for not more than 10 or 15 minutes, one or more witnesses were examined or cross-examined mostly only in part. Arguments similarly were spread over portions of six days.
35. We are aware that the Presidency Magistrates have much to do, and it is possibly for this reason that the procedure we have illustrated has been adopted. We cannot, however, too strongly condem this piecemeal method of dealing with cases. So far from economising time, by necessitating the preparation of an unnecessarily voluminous record, by giving to parties and witnesses opportunities for consultation and for the connection and fabrication of evidence,, and otherwise, the system must necessarily result in much waste of public time, while entailing upon parties intolerable inconvenience, loss of time and expense.
36. The procedure is further prejudicial to the course of justice, inasmuch as the excessive and in many cases impossible cost involved must necessarily deter parties from seeking the best legal advice and assistance. Moreover it impairs the value of the findings ultimately arrived at, inasmuch as in a case dealt with in this manner and proceeding pari passu with a large number of cases similarly treated it cannot be expected that when proceeding to judgment the Magistrate will have that lively recollection of the evidence so essential to a just conclusion.
37 We trust that the Presidency Magistrates will now abandon a procedure so calculated to bring odium upon their Courts and will so arrange their business as to enable them to set apart for lengthy cases certain specified days in each week. A trial once opened should then proceed throughout the day and, as far as possible, from day to day until completed. If so dealt with the present case, which is essentially a simple case of hurt, should have been disposed of, and satisfactorily disposed of, in two or at most three hearings.