Decided on January 20,1953

In Re: Ganapathia Pillai And Anr. Appellant
STATE Respondents


Ramaswami, J. - (1.) THIS is a criminal revision case which has been filed against the conviction and sentence of the learned Sub -Magistrate of Tiruenendur in C. C. No. 447 of 1951 and confirmed by the Sub -Divisional Magistrate of Tuticorin in C. A. No. 14 of 1952.
(2.) THE facts are : The petitioners who are father and son, are running a grocery shop in Udangudi, a major Panchayat. P. W. 1, Shanmugham, Assistant Inspector of Labour, made a surprise inspection of this shop under the Shops and Establishments Act on the night of 5 -2 -1951 (Monday and a shandy day) at 10 -30 p.m . according to his watch and at 9 -20 p.m . according to the timepiece in the shop. This P. W. I wanted to note the time of inspection in the register kept for that purpose. The accused objected and wanted this P. W. 1 to record the time as 9 -30 p.m . as well as per the time -piece in the shop. There was a dispute and according to P. W. 1 accused 1 pushed him by the chest and accused 3 snatched away the register from his hand in addition to having abused. This created a scene and a crowd gathered. Inasmuch as it had become late, P. W. 1 sent next day telegrams to his superior officers and despatched a report to the Sub -Inspector, Kulasekharapatnan. The Police charge -sheeted both the accused. P. W. 1 is corroborated by his peon P. W. 2 and practically by the peon of the Udangudi Panchayat Board office, P. W. 3. P. W. 4 is the Sub -Inspector who received the telegram and complaint and investigated the case. The case for the accused was that no such thing as alleged took place and that this case has been foisted upon them at the instance of the Executive officer of the Udangudi Panchayat Board, a friend and casteman of P. W. 1. They examined three witnesses of whom the village Munsif of Udangudi, D. W. 1, stated that at 11 -30 p.m . that night accused I gave him the statement Ex. D. 2 explaining his version of the incident and that before that when at 10 -55 p.m . P. W. 1 met him he did not tell him anything about the assault. D. W. 2, a neighbouring shop -keeper and D. W. 3 the Secretary of the Co -operative Stores who is stated to have come there on hearing the 'galatta', testified that when P. W. 1 inspected the petitioner's shop he compelled the shop assistants to sign in the book that the time was 10 -30 p.m ., whereas the correct time was 9 -45 p.m . and that when the accused protested P. W. 1 tucked up his sleeves, threw down the book and assumed a fighting attitude and that D. W. 3 pacified and separated them. Both Courts have believed the prosecution version and accused were convicted under Section 353, Penal Code and sentenced to pay a fine of Rs. 50 each. In regard to the findings of fact, they are binding on me and I have to consider here only the point of law which seems to have been suggested in the lower Court but which has been pressed only in this Court. The point is briefly this : 5 -2 -1951 happened to be a Monday and a shandy day. In G. O. No. Ms. 229 (Development) dated 13 -1 -1951 published in the Fort St. George Gazette on 30 -1 -1951, it has been notified that shops in Udangudi Major Panchayat could be kept open, on Mondays (shandy days) till 11 p.m . The point now urged is that there was irregularity in the inspection by P. W. 1 and therefore if force is used by the accused and the officer acting under the Shops and Establishments Act is assaulted, it does not amount to an offence.
(3.) UNDER Section 99, Penal Code, it is enacted that (a) an act done or attempted to be done, (b) by a public servant, (c) acting in good faith, (d) under colour of his office, (e) though that act may not be strictly justifiable by law, does not give rise to the right of private defence. These clauses in favour of public servants rest partly on the probability that their acts will be lawful, in which case resistance must necessarily be unlawful; partly on the theory that resistance is unnecessary since the law will set right what has been wrongly done in its name; and, lastly, on the ground that it is good for society that public servants should be protected in the execution of their duty even where they are in error. But in order to secure the protection of Section 99, I. P. C. it is essential that the act done or attempted to be done by a public servant must be (a) in good faith, (b) under colour of his office, (c) though that act may not be strictly justifiable by law.;

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