THAKUR PRASAD Vs. EMPEROR

JUDGEMENT

(1.) In an execution case the Subordinate Judge of Monghyr on receipt of an application purporting to be under Section 195 read with Section 476, Criminal P.C. relating to resistance to the Naib Nazir in attaching the property of the judgment-debtor held a sort of judicial inquiry and directed a complaint to be filed against the present petitioners of an offence under Section 186, I.P.C. As the valuation of the suit out of which the execution case arose exceeded Rs. 5,000, an appeal against his order was preferred to the High Court ostensibly under Section 476-B, and it was held that any appeal that lies must lie to the District Judge. The appeal was then preferred to the District Judge who having correctly pointed out that the complaint must be one under Section 195(1)(a) so that no appeal lies under Section 476-B, opined more dubiously that the error was only technical since the matter would, in any case, come to him as the superior of the Naib Nazir Having considered all the circumstances, he held that there was a prima facie case for a complaint and declined to intervene. The material facts are briefly as follows:

(2.) In an execution case following upon a mortgage suit Mt. Sundarbati filed an application to be substituted in place of a judgment-debtor from whom she had purchased three villages and Rs. 10 was awarded against her as costs. The decree-holder to whom the costs were payable, filed an application to execute the decree by attaching certain moveable properties of Sundarbati and when the order of attachment was returned unexecuted by the peon, it was re-issued to the Naib Nazir. The Naib Nazir went to a house pointed out by the identifier as the, place in which the moveables were and when the Naib Nazir was about to secure entry by breaking open the doors, he was resisted by the petitioner, Thakur Prasad, brother of the deceased husband of Sundarbati, and his men, one of whom is the second petitioner. Admittedly Sundarbati sometimes lives in that house. Mr. B.C. De raises certain question of fact. The facts are however the province of the Court which will try the complaint case. The substantial, point for consideration here is whether Section 195(1)(a) precluded the Magistrate from taking cognizance. Manifestly there has been much confusion in the minds of the legal practitioner of the decree-holder and the Subordinate Judge as to the position. Section 476 and the other provisions of Ch. 35, Criminal P.C. have no application. The only bar to a complaint under Section 186, I.P.C. is Section 195(1)(a) which makes cognizance dependent upon a complaint in writing of the public servant who was obstructed in the discharge of his public functions or some other public servant to whom he is subordinate. In short, the point of investigation is whether either the learned Subordinate Judge has been obstructed in the discharge of his public functions or the Naib Nazir who Was obstructed in the discharge of his public functions is the subordinate of the Subordinate Judge.

(3.) Section 186 does not appear to contemplate constructive obstruction to a judicial officer in the discharge of his judicial functions, even when they are of a quasi executive character or when the proceedings before him are in execution. It is clear that the complaint referred to in Section 195(1)(a) could have been lodged by the Naib Nazir or by the Nazir to whom he is subordinate or by the District Judge to whom all the nazarat staff is subordinate and probably also by the Munsif who under the order of the District Judge is in charge of the nazarat department. The question is whether the Naib Nazir was also when executing the order of attachment on deputation by the Nazir acting in pursuance of the order of the Subordinate Judge, who in the exercise of his judicial functions, was executing the, decree and who in that connexion directed the issue of process of attachment for execution by the, Nazir subordinate to the Subordinate Judge in any way. The Naib Nazir was indeed not subordinate to the Subordinate Judge administratively as he is to the Nazir, the Munsif in, charge of the nazarat and the District Judge Can he be said to be subordinate to the tribunal which issues an order of attachment which he is executing so far as that particular case or the particular process is concerned? On the whole, I am of opinion that the answer is in the negative. Certainly if the Naib Nazir had done something in connexion with the particular process, worthy of blame or of praise, the Subordinate Judge could not call him to account. All he could do was to report him to, one of the superior administrative authorities named for, punishment or reward, as the case might be. In my judgment Section 195(1)(a) applies to non-judicial authorities only while C1s. (b) and (c) apply to Courts, a special procedure being provided under Ch. 35 of the Code in respect of the latter, including an appeal against the complaint.