B.C.Jauhari - (1.) THIS Criminal Revision is directed against an order of Sri K. K. Sharma, Ilnd Addl. Sessions Judge, Mathura dated 6-1-81 by which he has convicted the revisionists Ladili Prasad and Ras : Bihari under Section 352 of the Indian Penal Code and has sentenced them to pay a fine of Rs. 50/- each in default to undergo rigorous imprisonment for one; month.
(2.) THE case against the applicants was that on 8-2-78 one Sri Govind Prasad Amin accompanied by one Sri Ram Pratap Maurya and his peon went to the applicant Ladili Prasad for recovery of certain dues against him. It is said that when Ladili Prasad was taken into custody on the strength of a warrant of arrest, his son Ras Bihari and others came and assaulted the Amin and rescued Ladili Prasad from the custody of Amin. THE accused denied the allegations and contended that they were falsely implicated. THE Magistrate before whom the case was tried found the appellants guilty under Section 332 IPC. On appeal the learned Sessions Judge converted the conviction under Section 332 into one under Section 352 of the Indian Penal Code and also reduced the sentence passed against the applicants. THE applicants feeling aggrieved have filed this revision. I have heard the learned counsel for the applicants and the learned State counsel and come to the conclusion that this revision must be allowed and the conviction recorded by the learned Sessions Judge must be set aside. The applicants were convicted under Section 332 IPC by the trial Magistrate on the ground that they had voluntarily caused hurt to the Amin who was a public servant in performance of his duty. The learned Sessions Judge in his judgment has clearly disbelieved this story of the Amin arresting the applicant Ladili Prasad on the basis of any alleged warrant off arrest. It appears that the learned Sessions Judge came to this conclusion because the warrant of arrest was not produced before the trial court. The learned Sessions Judge opined in his judgment that the assault was caused to the Amin in some other circumstances. In other words the entire story of the arrest and the release by using criminal force was not believed. This according to the own showing of the learned Sessions Judge the case was reduced to an assault simplicitor against a private person under Section 352 of the Indian Penal Code. The learned Sessions Judge, however, did not take into consideration the circumstance that if the story of arrest on the basis of some warrant was disbelieved, then the story remains that the Amin had no business to arrest Ladili Prasad. If the Amin; took into his head to arrest Ladili Prasad without any rhyme and reason then Ladili Prasad and his son could justifiably assault and use criminal force in order to protect their liberty. Consequently this would be a case of justifiable assault which cannot be punished under the terms of Section 352 of the Indian Penal Code. Giving the matter my anxious consideration I feel that the conviction recorded by the learned Sessions Judge is incorrect. The revision is, therefore, allowed and the conviction and sentences of the applicants are set aside. The fine if paid, shall be refunded. Revision allowed.;