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ABEYAKOON v. SODALAYANDI ACHAltl.
D. C., Regalia, 81,367.
Penal Code, e. 183—Obstructing public servant in discharge of public duty—Meaning oj voluntary obstruction—Punishment for such offences.
Where a Deputy Fiscal, entrusted with a writ of possession, informedthe accused, who was in possession of the house, that he had come toplace the purchaser in execution in possession, hut the accused in anexcited state said in anger to the Deputy Fiscal. *' It would be eithermy life or your life; you will have to cut my th-oat before I am sentout; ” and the Deputy Fiscal, apprehendug somei’ung serious, did notgive effect to the writ of possession :
Held, that the conduct of the acoused, though devoid of physical resist-ance, amounted to criminal intimidation, and therefore to voluntaryobstruction.
In the absence of special circumstances of aggravation, the punishmentin such cases should not be greater than that which may be indictedunder section 326 of the Civil Procedure Code, namely, simple imprison-ment, or a fine.
HE accused in this case was found guilty under section 183of the Penal Code of obstructing the complainant as a public
servant in the discharge of his duty as Deputy Fiscal of Kegalla,of putting the purchaser at a sale in execution in possession ofcertain lands described in the writ of possession which was issuedfrom the District Court of Kegalla. The evidence of the com-plainant as regards the nature of the obstruction was aB follows:—“ I entrusted the writ of possession to a subordinate officer of“ mine to put Muttyah Chetty, the purchaser, in possession;“ he reported that the accused refused to leave the land. I went“ to the land myself in consequence in December last. The“ defandant refused to vacate the premises. I went again on the“ 16th April last, reaching the land at about 9 o’clock. I saw the“ accused’s wife, but the accused himself was absent. She refused“ to go away. I came to the land again at 3 p.m. Both husband“ and wife were in the house. I explained to them that I came“ to place Muttyah Chetty in possession. The accused asked me“ not to step into his house, and he threatened me if I came there“ something serious would happen. He said it would either be“ my life or your life; you will have to cut my throat before I“ am sent out. He was very angry and in an excited state. I“ apprehended that something serious would happen, and I was“ therefore unable to put Muttyah Chetty in possession.”
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1900.Bait a, for appellant.—It is not proved that accused barricaded
July !<*■ his doors or assaulted the Deputy Fiscal, or took any active stepto oppose the execution of the writ of possession. “ Voluntaryobstruction ” in section 183 implies use of physical force. Itcannot be said that the words used by the accused amount to suchphysical resistance (Queen-Empress v. Sommanna, 1. L. R. 15Madras 221), and it has been held in Queen-Empress v. Hussain(7. L. R. 15 Bombay 564) that an oral statement to a bailiff that hewould not be allowed to take away the articles does not amountto an offence under the corresponding section of the Indian PenalCode. [Bonser, C.J.—The first case cited only shows that theowner of the goods sought to be inventorized simply remainedinside his house with his'closed doors; and in the second case citeda person claiming certain goods which were lying on the road infront of the judgment-debtor’s shop, which was sought to beattached, the owner told the bailiff that he would not let him takethem away unless he entered them as the claimant’s property.But in the present case there is evidence of intimidation, owingto which the Deputy Fiscal says he was obliged to desist' from hisduty.] But there was no physical resistance here.
The sentence of three months’ imprisonment is much toosevere. A fine would be more consistent with the facts of the case..
Ramanathan, 8.-G., for respondent, was not called upon.
This is an appeal against a convention under section 183 of thePenal Code for voluntarily obstructing a public servant in thedischarge of his public duties. It appears that the appellantwas the owner of a house and land which had been seized inexecution in a suit by the creditor and sold and purchased by thecreditor. The purchaser obtained a delivery order and went withthe Deputy Fiscal to be put in possession. They went first at 9o’clock in the morning. At that time the appellant was absent;his wife and children were there. The Fiscal tried to remove thewife and seized her by the arm to pull her out of the house. Butas she refused to go, they desisted from using more force.
The Deputy Fiscal and the purchaser returned in the afternoonand found the appellant in the house. The Deputy Fiscalexplained to the accused that he had come to put the purchaserin possession. Thereupon the appellant told the Deputy Fiscalnot to step into the house, and said that if he did so it would be“ either my life or yours.” The Deputy Fiscal would have to cuthis throat before he went out. The Deputy Fiscal says that the
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man was very excited and angry, and that he was afraid that hewould do him some harm if he carried out' the order of the Court.That being so, he was unable to put the purchaser in possession,and they went away and reported the matter to the Court. Theappellant at the trial denied that he was there at all but theMagistrate disbelieved him, and it has not been attempted to showthat the Magistrate was wrong.
But it was urged that on the facts proved there was no obstruc-tion within the meaning of section 183: that there must be somephysical act of obstruction to bring the case within that section,and two cases from the Indian Law Reports were cited as author-ities for that proposition. One was Queen-Empress v. Sommana(15 Madras 221). In that case a search warrant had been issued tosearch a house, and when the person deputed to execute the warrantarrived at the house the owner shut the door and took no noticeof the Commissioner. The Court- held there was no obstructionin that case, for all that the man did was, when the Commis-sioner asked to search the house, to shut the door and refuseto make any answer. The judgment states that his objectapparently was not to obstruct, but to gain time for the compro-mise which later on in the day was effected; and that the use ofthe word “ voluntary ” implied some active conduct, and theLegislature did not intend to render penal mere passive conduct.In the present case there was something more than passive conduct.There were threats; and threats coming from an excited andangry man might not unnaturally lead the officer to believe thatthey would be followed by action.
The other case, Queen-Empress v. Hussfiin (15 Bombay, 564), wasunder a different section, i.e. under the section which answers toour. section 181.
In that case the accused was charged with offering resistance tothe taking of property by the lawful authority of a public servant,and the only evidence against him was that, when the baliff wentto the property, he said, “ I shall not let you seize it unless youeiiter it as my property.” This was held not to be resistance.
There is no case which decides that criminal intimidation suchas existed in the present case is not obstruction.
It seems to me that the previous section 182 throws some lighton the question, for there it is made an offence to obstruct a saleof property which is offered for sale by lawful authority, and itseems to me the most obvious way to obstruct a sale would be bythreatening bidders or would-be bidders with personal violenceif they made bids. I am of opinion that the conviction was right.
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Then, aB to the punishment, the Police Magistrate has inflictedthe full amount of punishment, which is three months’ rigorousimprisonment.
Had the matter been referred to the District Court and thisobstruction complained of to the District Judge, the DistrictJudge might have dealt with it under section 326 of the CivilProcedure Code; but under that section the utmost punishmentwhich he could have inflicted would have been thirty days'simple imprisonment. I am of opinion that in a case like this thepunishment should not, if the case is brought under section 183,exceed the punishment prescribed by the Civil Procedure Code inthe absence of special circumstances of aggravation.
I think that in the present case the justice of the case will bemet by a fine of Bs. 10, or in default a fortnight’s imprisonment.
ABEYAKOON v. SODALAYANDI ACHARI