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Tafazzul Ahmed Chowdhry and ors. Vs. Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal634
AppellantTafazzul Ahmed Chowdhry and ors.
RespondentQueen-empress
Excerpt:
penal code (act xlv of 1860), section 353 - deterring a public servant from discharge of his duty--public servant acting under warrant of attachment--non-production of the warrant at the trial. - .....after a little while, a man who was the muktear of the debtor, appeared and required to see the warrant of attachment. he then declared that this warrant was an illegal warrant, which could not be properly executed, and he instigated the debtor and others forcibly to resist the execution. thereupon the nazir was assaulted, and he ran away to the settlement officer, by whom the warrant had been, issued. objections were raised in the trial in the lower court, as well as before us, and it was upon this point that a rule was granted, that the warrant was not a legal one, and that, therefore, the conviction for forcibly resisting its execution could not be sustained.2. it is very unfortunate that, after the lengthy proceedings that have been held, we should find at this stage of the case.....
Judgment:

Prinsep and Hill, JJ.

1. The petitioners have been convicted, one of them under Sections 353 and 147 of the Indian Penal Code, and the others of abetment of an offence under Section 353, that is, of assaulting or using criminal force to the complainant, a Nazir, in the execution of his duty as such, with the intention of preventing or deterring him from discharging his duty. The case for the prosecution is that the Nazir was executing a warrant for the attachment of certain property belonging to Tafazzul Ahmed in satisfaction of a certificate under the Public Demands Recovery Act for costs in certain proceedings. In the first instance, the attachment proceeded quietly, but, after a little while, a man who was the muktear of the debtor, appeared and required to see the warrant of attachment. He then declared that this warrant was an illegal warrant, which could not be properly executed, and he instigated the debtor and others forcibly to resist the execution. Thereupon the Nazir was assaulted, and he ran away to the Settlement Officer, by whom the warrant had been, issued. Objections were raised in the trial in the lower Court, as well as before us, and it was upon this point that a rule was granted, that the warrant was not a legal one, and that, therefore, the conviction for forcibly resisting its execution could not be sustained.

2. It is very unfortunate that, after the lengthy proceedings that have been held, we should find at this stage of the case that the warrant has neither been produced in the lower Court, nor has secondary evidence been given, after proper steps taken to produce the original had failed, to show its contents. We have on the record only another warrant issued on the failure of the first warrant, but there is nothing to show that the contents of the two warrants were the same, nor is there any thing to show what the contents of the first warrant were, to whom it was addressed, or for what period it was current. It is impossible, therefore, to say how far it was a valid warrant. The lower Court seems to have held that the warrant was for the attachment of whatever property the Nazir, the officer executing it, might find on search as belonging to the judgment-debtor. The area of the search is not described, and, if it were a valid warrant, it would be competent to the Nazir to seize any property that he believed belonged to the judgment-debtor at any place within the jurisdiction of the Court issuing it. It seems unnecessary to point out the serious objections that there would be to allowing such a warrant to be regarded as a valid warrant. It is different from the form prescribed by the Code of Civil Procedure, Schedule IV, No. 136, for warrants of this description, inasmuch as it does not fix any responsibility on any person for the attachment of any moveable property which may be found not to belong to the judgment-debtor; whereas the terms of the form, as given in the Code, are express in this respect. In the absence, therefore, of any evidence as to the terms of the warrant, either by the production of the original or in the form of secondary evidence, it; is impossible for us to hold that the conviction is good and can be sustained. One of the petitioners has been convicted of rioting, and in respect of that conviction it is only necessary to say that the charge does not declare what was the common object of the assembly by which the riot was committed. It is impossible, therefore, to say that this petitioner has been properly convicted of that offence. The rule is made absolute, the conviction and sentence will beset aside in respect of all the petitioners, and the fine, if paid, will be refunded.


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