IN THE COURT OF THE SESSIONS JUDGE, GUNTUR.

Present:-Sri………. (Name of the Judge), B.A., B.L.,

Friday, the 12th day of June, 1973.

Judgment in Criminal Appeal Nos. 23/73 and 54/73.

ADVERTISEMENTS:

From what Court, the appeal Judicial First Class Magistrate’s Court, is preferred: Mangalagiri.

Number of the case in the Court: C.C.No. 324/69.

Name and description of the appellants:

1. P. Kantha Rao,

ADVERTISEMENTS:

S/o Appala Narasimha, Deputy Tahsildar, Guntur.

2. S. Kanna Rao,

S/o Ramayya, Revenue Appellants in Criminal Appeal

Inspector, Guntur. No. 23/73 (A-l to A-3)

ADVERTISEMENTS:

3. S. Satyanarayana, S/o Dhanayya,

Village Munsif, Managalagiri.

Art of Writing Criminal Judgements

4. Bhavana Appa Rao,

ADVERTISEMENTS:

S/o Gaddenna, Appellants in Criminal Appeal

Village Thalayari, No. 54/73. (A-4 and A-5) Mangalagiri.

5. Potugadda Subramanyam,

S/o. Narasimha, Village Vetti, Mangalagiri.

ADVERTISEMENTS:

The sentence and law under (i) A-l to A-5 were convicted under Sec. 143 which it was imposed in the IPC and sentenced each to pay a fine of lower Court. Rs. 25/- in default S.I. for one month.

(ii) A-l to A-5 were convicted under Section 341 I.P.C. and sentenced each to pay a fine of Rs. 50/- in default S.I. for 15 days.

(iii) A-l to A-3 were convicted under Section 380 I.P.C. and sentenced each to suffer R.I. for 3 months and to pay a fine of Rs. 100/- in default to suffer S.I. for one month.

The complainant and A-l to A-5 compounded the offence punishable under Sec. 341 I.P.C. and it was recorded as per the order on Criminal M.P. Nos.505 and 507/73. In view of the orders passed on criminal M.P. Nos. 505 & 507/73 A-l to A-5 are found not guilty of the offences punishable under Section 143 and 341 I.P.C., and A-l to A-3 are found not guilty of the offence punishable under Section 380 I.P.C., and in the result both those appeals are hereby allowed, the convictions ordered and the sentence passed against the appellants accused by the lower Court are set aside, and the appellants accused are acquitted.

ADVERTISEMENTS:

The fine amount, if already paid, shall be refunded to the respective appellants accused.

These appeals coming on for hearing before me, upon perusing the petition of appeal and the record of the evidence and proceedings, and upon duly considering the same after hearing the arguments of Sri……, Advocate for the appellants in Criminal

Appeal No. 23/73 and Sri…, Advocate for the appellants in Criminal Appeal No. 54/

73 and of public prosecutor for the state respondent in both the appeals, I do adjudge and pass the following:

JUDGMENT

A-1 to A-3 in C.C.No. 324 of 1969 on the file of the Judicial First Class Magistrate’s Court, Mangalagiri, are the appellants in Criminal Appeal No. 23 of 1973, whereas A- 4 and A-5 in the said case are the appellants in Criminal Appeal No. 54 of 73.

2. The lower Court convicted A-l to A-5 of the offence under Section 143 I.P.C., and sentenced them to pay a fine of Rs. 25/- each and in default to suffer simple imprisonment for one month each. A-l to A-5 were also convicted of the offence under Section 341 I.P.C. and sentenced to pay fine of Rs. 50/- each and in default to suffer simple imprisonment for fifteen days each. The lower Court found A-l to A-3 alone guilty of the offence under Section 380 I.P.C. and convicted them of the same and sentenced each of them to suffer rigorous imprisonment for three months and also to pay a fine of Rs. 100/- and in default to suffer simple imprisonment for one month. The lower Court found A-4 and A-5 not guilty of the offence under Section 380 I.P.C. and acquitted them of the same.

3. P.W.I is the complainant and she is P.W.7’s wife. P.W.3 is the complainant’s brother. They are residents of the village Mangalagiri. P.Ws. 2, 4 and 5 are also residents of the same village. A-3 is the village Munsif of Mangalagiri whereas A-4 and A-5 are village servants working under him. A-l is the Deputy Tehsildar and A-2 is the Revenue Inspector having jurisdiction over this village.

4. P.W. 7 is a rich land-lord of the village Mangalagiri owning extensive properties. In the year 1957 he effected a partition of his properties with his brother. Ex.P. 3 is the registration copy of the partition deed dated 16-10-1957 under which considerable properties fell to P.W. 7’s share. P.W. 7 is said to be a man of frail health. He executed Ex.P. 1, the registered settlement deed, dated: 15-2-1966 under which he settled Ac. 27-41 cents of land comprised in patta Nos. 790, 1099 and 24 of Village Mangalagiri besides a terraced-cum-tiled house with appurtenant thatched sheds and vacant sites situated in Ward No. 1 of Mangalagiri Panchayat on his wife, the complainant, and his two sons. He retained for himself some more properties which are said to be in the enjoyment of tenants. Ever since the date of Ex. P-l the complainant is alleged to have been in management of the properties covered by Ex. P.l. The complainant also claims to have been paying land revenue due in respect of the aforesaid extent of Ac. 27-41 cents covered by Ex.P. 1. Presumably applications for transfer of patta for this land in the name of the complainant and her sons were submitted at the time of the registration of Ex.P. 1. or shortly thereafter to the concerned authorities. But it is an admitted fact that no change of registry was effected and that P.W. 7 continues to be shown in the village accounts, and, in particular in account No. 10, (1), as the registered pattadar for the said lands. It may be mentioned at this stage that even P.W. 7’s brother who got some properties for his share under the original of Ex.P. 3. settled those properties on his wife. For the year 1969 levy of paddy had to be given in respect of the lands covered by Ex.P-1 under the provision of Andhra Pradesh Paddy Procurement (levy)

Order, 1967 and it is the admitted case of the prosecution that the levy was not given. Land Revenue due in respect of these lands fell in arrears from faslis 1372 and 1378 and even this fact is admitted by the prosecution, though there is some dispute regarding the exact amount that was payable by way of arrears of land revenue.

5. It was the duty of A-l as the Deputy Tehsildar to collect the levy paddy from the persons liable to give it. It was the duty of A-2 as the Revenue Inspector to ensure prompt payment of land revenue and also to collect arrears, if any. As the village Munsif it is A-3’s duty to assist A-l and A-2 in collecting levy paddy and in securing payment of arrears of land revenue. A-4 and A-5 as village servants are bound to carry out the directions issued to them by the superior officers.

6. At about 10-30 A.M., on 3-2-1969 A-l to A-5 went to the house in which the complainant is residing with her husband and children and A-l is said to have asked P.W.I to deliver the levy paddy. On the complainant expressing her inability to deliver levy paddy by reason of failure of crops, A-l is alleged to have directed A-3 to lock the living room of the house. After A-3 locked the house in accordance with A-l’s directions, A-l is stated to have sealed the lock. A-2 is alleged to have directed A-3 to seize and remove a pair of he-buffaloes worth Rs. 1500/- said to belong to the complainant presumably because the arrears of land revenue were not paid. Under A-3’s directions A-4 and A-5 removed the pair of he-buffaloes from the Cattle shed and thereafter a guard over the sealed house is said to have been arranged. It is alleged that the complainant protested in vain that her husband was absent from house. All the accused are stated to have acted in this manner in pursuance of their common object of coercing the complainant to deliver levy paddy and to pay arrears of land revenue though there was no proper demand on her for the same. P.Ws. 2 to 5 claim to have witnessed this occurrence. It is further alleged that after P.W. 7 returned home on the evening of 4-2-1969 the complainant informed him about the occurrence. P.W. 7 is said to have approached A- 1 to A-3 and that it was of no avail. This in brief is the case for the prosecution.

7. On 5-2-1969 the complainant filed a private complainant in the Court of the Judicial First Class Magistrate, Mangalagiri against A-l to A-5. The learned Magistrate recorded the complainant’s sworn statements and took the case on file against all the accused under Sections 452, 380, 341, 506 part II and 143 I.P.C. After recording the evidence of P.Ws. 1 to 5, the learned Magistrate pronounced orders on 28-4-1969 discharging all the accused on the ground that the prosecution was bad for want of sanction since the accused did the acts complained against in discharge of their official duties. The complainant preferred Criminal Revision Petition No. 51 of 1969 against the said orders of discharge. The learned Additional District and Sessions Judge, Guntur, made a local inspection of the sealed premises on 14-6-1969 in the company of P.W. 6, the Court-Clerk and Ex.P. 2 is the notes of inspection prepared by him. The learned Additional District and Sessions Judge, Guntur, came to the conclusion that the accused acted beyond the scope of their authority, that their act was a malicious one and that therefore there was no need to obtain prior sanction for prosecution. He, therefore, pronounced orders on 18-6-1969 allowing the revision, setting aside the orders of discharge and directing the lower Court to make a further enquiry into the matter and dispose of the case according to law. Thereupon, the learned Magistrate recorded further evidence in the case and framed charges against A-l to A-5 under Sections 143 and 380 and 341 I.P.C. The accused pleaded not guilty to these charges.

8. When examined under Section 342 Cr.P.C., A-l stated that they went to P.W.7’s house, that P.W. 7 was asked to deliver the levy paddy as per the demand notice already served on him, that P.W. 7 refused to do so and left the house, that P.W. 7 also declined to open the door of the house in which he was suspected to have stored paddy, and that A-l put a seal on the lock with which that room was already locked. A-2 stated that a demand notice was served upon P.W. 7 for payment of arrears of land revenue, that on 31-1-1969 when he went to the village of Mangalagiri to collect land revenue from P.W. 7. the latter gave him a statement that he would pay land revenue to the village Munsif on 1-2-1969, that on 3-2-1969 he again went to the village with A-l, that as land revenue had not been paid by P.W. 7 as promised, A-3 attached a pair of he- buffaloes after following the prescribed procedure. A-3 to A-5 also stated on the same lines as A-l and A-2.

9. On behalf of the accused two witnesses were examined. D.W. 1 worked as Tehsildar, Mangalagiri, at the relevant point of time and his evidence is that the levy notice was served upon P.W. 7, which likewise a demand notice for payment of arrears of land revenue was also served upon P.W. 7. and that he issued a notice for attachment of the he-buffaloes. D.W. 2 is B. 3 clerk attached to the Taluk Office, Mangalagiri. He produced a true copy of No. 13 account (Chitta) which is marked as Ex.D. 27.

10. The learned Magistrate held that A-l to A-5 committed the offences punishable under Sections 143 and 341 I.P.C whereas A-l to A-3 alone committed the offence punishable under Section 380 I.P.C. Hence he convicted the accused of the said offences and sentenced them as already mentioned while acquitted A-4 and A-5 of the offence under Section 380 I.P.C. Hence, these appeals.

11. The complainant and A-l to A-5 compounded the offence punishable under Section 341 I.P.C. and it was recorded as per orders on Criminal M.P. Nos. 505 and 507 of 1973. It is therefore not necessary to consider the evidence of P.W.6 and refer to the contents of Ex.P.2. and express any opinion on the question whether the sealed premises are used by the complainant for residential purposes or by P.W. 7 for storing paddy or whether the complainant or P.W. 7 is the real owner of those premises. Hence what remains to be considered is whether A-l to A-5 are liable under Section 143 I.P.C., and whether A-l to A-3 are liable under Section 380 I.P.C.

12. The points arising for determination are-

(1) Whether A-l to A-3 dishonestly or with fraudulent intention committed theft of a pair of he-buffaloes belonging to the complainant at Mangalagiri on the morning of 3-2-1969?

(2) Whether A-l to A-5 were members of an unlawful assembly at Mangalagiri on the morning of 3-2-1969?

13. Point No. (i): There can be no doubt of the fact that the real owners of the property covered by Ex.P. 1 including the land measuring Ac. 27-41 cents in question are the complainant and her two sons. They acquired title to the said property under Ex.P. 1.

14. It is contended that the accused were fully aware of the fact that by under Ex.P. 1, P.W. 7 divested himself of his title to the properties covered by the said document and that the title thereto vested in the complainant and her sons and that inspite of the same the accused purported to distrain the complainant’s pair of he- buffaloes for alleged arrears of land revenue without following the prescribed procedure before taking coercive steps. Hence it is argued that A-l to A-3 must be deemed to have committed theft within the meaning of Section 380 I.P.C.

15. Exs. P. 4 to P. 8 and P. 10 to P. 25 cist receipts are relied upon by the prosecution to show that the revenue authorities including A. 3 knew that the complainant and her sons were the owners of the property covered by Ex.P. 1 and that from the date of execution of the said document P.W. 7 ceased to have any interest in the said property. Ex.P. 4 to P. 8 and P. 23 are issued in favour of the complainant. But, they were all obtained after the date of the alleged offence. Ex.P. 15, P. 18 and P. 24 Exs. P. 11 to P. 13 and P. 20 are issued in favour of P.W. 7 and they are related to the years 1964 and 1965 namely, prior to the execution of Ex.P. 1. Exs. P. 14 to P. 15, P. 17, P. 19, P. 21 and P. 22 are issued in favour of P.W. 7 and others and they also relate to the years 1963 and 1964. Thus these cist receipts were also of little value. Thus we are left only with Ex. P. 10, P. 16 and P.25 in which the complainant’s name is found. The learned Magistrate did not place any reliance upon Ex.P. 16 on the ground that the inclusion of the complainant’s name in it is of doubtful character. He relied only upon Exs.P. 10 and P. 25 for coming to the conclusion that the date of the alleged offence the Revenue Authorities knew about the complainant’s enjoyment of the land in question. These two receipts are after the date of Ex.P. 1 but before the date of the alleged offence. As far as Ex.P. 10 is concerned, we find P.W.7’s name also mentioned in brackets below that of the complainant’s against patta No. 790 whereas only the complainant’s name is mentioned against patta No. 1099. In Ex.P. 25 the name of the complainant alone is mentioned against all the pattas noted therein. From the mere fact the Ex.P. 10 and P. 25 were issued in the complainant’s name it need not necessarily follow that the complainant was in possession and enjoyment of the land in question to the exclusion of her husband, P.W. 7. It might be that these receipts were issued in her name because she paid the land revenue. If ownership of the land and possession thereof formed the basis for the issue of Exs. P. 10 and P. 25, not only the complainant’s name but also the names of her two sons, in whose favour Ex.P. 1 was executed, should have found place in these two receipts. The learned Magistrate was not correct in his observation found at page 13 of his judgment that the amount covered by Ex.P. 16 does not find place in Ex.D. 27. That is because all the five payments mentioned in Ex.P. 16, are also recorded in Ex.D. 27 under the same date, namely, 3-1-1967. But, instead of mentioning the complainant’s name only that of P.W. 7 is entered in Ex.D. 27 as he happened to be the pattadar for the said lands. In all probability, Exs.P. 10 and P. 25 were issued in the complainant’s name, not because, she paid land revenue in her own right, but because she paid it on behalf of her husband, P.W. 7. who was the registered pattadar at the relevant point of time. Hence from the mere fact Exs.P. 10 and P. 25 were issued in the complainant’s name it need not necessarily be inferred that the Revenue Authorities including A. 1 to A. 3 were aware of her interest in the land in question.

16. I have already mentioned that inspite of Ex.P. 1, the lands continue to be registered only in P.W. 7’s name in the village accounts. Exs. D. 2 to D. 16 are demand notices issued under the provisions of the Andhra Pradesh Revenue (Enhancement) A 1967 and they were all served upon P.W. 7 who signed therein. We are not concerned with Exs. D. 9 to D. 16 in these proceedings as they do not relate to the land covered by Ex.P. 1 but to some other land owned by Y. Venkata Lakshmamma and others on whose behalf P.W. 7 accepted the notices. But, Exs.D. 2 to D. 8 relate to the lands covered by Ex.P.l and they were all issued by A.3 and received by P.W. 7 on 12-4-1968. If P.W. 7 had no subsisting interest in the land covered by Ex.P. 1, he ought not to have in the first instance received Exs. D2 to D.8. Even if he had done so, he should have immediately brought it to the notice of the concerned authorities that these demand notices should be served not upon himself but upon the complainant and her sons. P.W. 7 no doubt claims to have put in petitions to the Tahsildar and other authorities bringing this fact to their notice. But, the complainant has not chose either to summon for the said records from the Tahsildar’s office or at least to exhibit office copies of the said written representations alleged to have been made by P.W. 7. Hence not with standing the execution of Ex.P. 1, P.W. 1, continues to be associated with the lands covered by the said document and the accused in the demands issued as per Exs. D. 2 to D. 8 and accepted them without indicating in any manner that he was doing so on behalf of the complainant and her sons. This circumstance has not at all been considered by the learned Magistrate.

17. It is P.W. 7’s evidence that he is not getting any ambaram from tenants who are cultivating his own lands, namely, those retained by him after the execution of Ex.P. j 1. But, he admits that since two years prior to the dispute he has been storing paddy in his brother’s room. If so that paddy must have been realised only from the land covered by Ex.P.l not from his other lands. P.W.4 states that in the year of the incident P.W. 7 got about: 5 or 6 gareces of paddy. P.W. 5’s evidence is that in the year of the incident P.W. 7 might have got 5 gareces of paddy. He immediately corrects himself and states that P.W. 1, namely the complainant received 3 gareces yield. Those two statements made by P.Ws. 4 and 5 only suggest that even during 1969 it was P.W. 7 who supervised the cultivation of the land covered by Ex.P. 1 and that P.W. 7 received the yield from the land also. This could not have happened if the land had been exclusively in the complainant’s management.

18. No doubt the prosecution has adduced evidence to show that from the date of Ex.P. 1 the complainant was managing the lands covered by that document. The complainant states that she has been looking after the cultivation and management of the lands and the family and that her husband has nothing to do with the affairs and management of their family. But, she is not able to state the extents of the rainfed land and the extents of the channel-fed land. She is also unable to state the extents of her wet and dry lands pertaining to her husband. She does not know her husband had settled all his lands in her name. She is not aware of the amount of cist paid by her husband. P.W.3 admits that demand notices in respect of land revenue and levy of paddy were issued to P.W. 7. He does not state that P.W. 7 accepted the said demands on behalf of the complainant and her sons. P.W. 7 states that his wife namely, the complainant attends to cultivation and that if he is in the village he himself attends to cultivation. This is contrary to the evidence of P.Ws. 2 and 5. P.W. 2’s evidence is that P.W. 5 has not been looking after the affairs of his family since 5 or 6 years. If what he says is true P.W. 7 must have ceased to manage the lands covered by Ex.P. 1 in the year 1963 or 1964 since P.W. 2’s evidence was recorded in 1969. P.W. 5’s evidence is that P.W. 7 never looked after the cultivation of P.W.I’s lands for the past 12 years which takes us to 1960. But, it has to be remembered that Ex.P. 1 was executed only in the year 1966. P.W. 3 is the complainant’s own brother and P.W. 4 admits that previously he worked as coolie under P.W. 7 in or about the year 1969 and he also states that on his own suggestion he was cited as a witness for the prosecution. Hence the evidence adduced by the prosecution regarding the alleged exclusive managements of the lands covered by Ex.P. 1 by the complainant cannot be accepted.

19. There is considerable force in the contention that the original of Ex.P. 3 as well as Ex.P. 1 were executed not with the bona fide object of dividing family properties or settling them upon P.W. 7’s wife and children but these documents were executed only to circumvent the law relating to land ceiling that inspite of the execution of these documents P.W. 7 continued to exercise all acts of ownership in respect of the said lands. P.W. 7 admits that he has debts. A suggestion was made to him that he had executed Ex.P. 1 to defraud his creditors. The suggestion was no doubt denied. However, it may be the evidence adduced by the prosecution does not establish clinchingly that P.W. 7’s connections with the lands covered by Ex.P. 1 and that from the date of the said document the complainant alone was in management of the said lands to the knowledge of the Revenue Authorities.

20. There is one other important circumstance which was not properly considered by the learned Magistrate. Ex.D. 17 is the order issued under D.W. l’s signature on 19- 1-1969 to P.W. 7 describing him as the defaulter and authorising A-3 to distrain P.W. 7’s properties for recovery of arrears of land revenue for faslis 1370 to 1378 amounting to Rs. 1650-21 ps. A copy of Ex. D-l was served on P.W. 7 on 19-1-1969 in token of which he signed on the reverse of Ex.D. 17. Ex. D. 23 is the statement recorded by A- 2 from P.W. 7 on 31-1-1969 and P.W. 1′ signature in it is marked as Ex.D. 18. In this statement P.W. 7 admitted having received a copy of Ex. D. 17 on 19-1-1969 and he also undertook to pay Rs .878/- out of the amount mentioned in Ex.D-17 to A-3 on 1-2-1969 and he further stated therein that in case of default he would be bound by any action taken by A-2. Even in Ex.D. 23 P.W. 7 did not state that his property could not be attached or destrained for recovery of the amount mentioned in Ex. D.17, or that the persons to be proceeded against for recovery of the said amount were only the complainant and her sons and not himself or that the amount mentioned in Ex. D. 17 was not correct. P.W. 7 admits his signature marked as Ex.D. 18 but states that he did not state before A-2 as mentioned in Ex. D. 23 Ex. D. 25 is a sale notice issued under D.W’s. signature on 3-2-1969 and P.W. 7 received it on 6-2-1969 in token of which he signed therein. His signature is marked as Ex.D. 10. D.W. 7 admits his signature marked as Ex.D. 19 but denies knowledge of the contents of Ex.D. 25 We may ignore Exs. D.19 and D. 25 as P.W.7’s signature marked as Ex.D. 19 was obtained after the present complainant had been filed. But, P.W. 7 cannot for a moment be believed when he deposes that he did not state before A-2 as mentioned in Ex.D. 23. The learned Magistrate chose to ignore Ex.D. 17 on the sole ground that the date for payment was given as 10-1-1969.1 do not think that this circumstance is of such vital importance. Hence, even Ex. D. 17 probablises the case put forward by the accused that it was only P.W.7 that was looked to by the Government as the proper person from whom arrears of land revenue should be collected and that the prescribed procedure was followed before distraining the pair of he-buffaloes. If there was any dispute about the correctness of the amount mentioned in Ex. D. 17, atleast the admitted amount should have been paid and P.W. 7 did not pay even the amount which he agreed to pay to A-3 on 1-2-1969 as mentioned in Ex.D. 23. It was under these circumstances that A-2 and A-3 were forced to have recourse to coercive process.

21. The learned Magistrate observed at page 15 of his judgment that whenever patta transfer applications were submitted, it was the burden of the Revenue authorities to give effect to them and if they did not do so it would work only to their disadvantage. I find it difficult to follow how the Deputy Tahsildar, The Revenue Inspector and the Village Munsif could be proceeded against criminally if the Tahsildar, whose duty it is to order transfer of patta, fails to pass such orders and if the Karanam, whose duty it is to give effect to such orders of transfer passed by the Tahsildar in the village accounts, omits to do so.

It is admitted that a pair of he-buffaloes was seized by A-3 under A-2’s directions. The complainant’s case is that the he-buffaloes belong to her and not to her husband, P.W. 7. That is also the evidence of the other witnesses. The complainant states that they had two pairs of he-buffaloes since the time when her husband was in management. She further states that she purchased them but she adds that she did not purchase them personally but got them through one Kolanu Subramanyam. This individual has not been examined for prosecution. The complainant does not state from whom the pair of he – buffaloes in question was purchased, when they were purchased and for what price.

None of the other witnesses states from whom, when and for what price the complainant purchased the pair of he-buffaloes. P.W. 7 also states that his wife has got two pairs of he-buffaloes and that he does not have the- buffaloes: If so the evidence of the complainant that they had two pairs of he-buffaloes from the time when her husband was in management cannot be believed. On the other hand, it will have to be held that the two pairs of he-buffaloes including the one pair seized by A-3 under A-2’s directions must have been acquired by P.W. 7 himself sometime prior to the date of Ex.P. 1 and thus there is no satisfactory evidence that the pair of he- buffaloes which are the subject matter of distress belong exclusively to the complainant.

23. Board Standing Order 28(2) provides that unless and until transfer or disposal made by the registered holder of ryotwari land is registered in the Land Register, the registered holder remains liable for assessment and all other legal charges due on the land, just as if no such transfer or disposal had occurred. At page 56 of the Village Officer’s and Ryot’s Manual (1958 Ed.) it is stated that payments may be made by the registered holders or their relations and friends or by some other persons interested in the holding. It is also specifically mentioned in the said book that the Government look to the registered holder for payment of kists and that when he offers to pay no payment made by others should be accepted. Since admittedly transfer of registry pursuant to Ex.P. 1 has not been effected in the village accounts in favour of the complainant and her sons and since P.W. 7 continues to be shown in the village accounts as the registered pattadar of the said lands, it is only to him that the Government could look for payment of the land revenue due in respect of the said land. The procedure prescribed under Section 8 of the Revenue Recovery Act II of 1864, has been strictly followed in this case and Ex.D.17 was duly served on P.W. 7 before the pair of he-buffaloes was seized. Ex. D.24 and D.25 also show that the steps to be taken subsequent to seizure were also scrupulously followed and there is no point in the criticism that they are illegal or malicious in the action taken by A-l to A-3. The complainant admits that she has no enmity with A-3. P.W.3 also states that A-3 has no enmity with his family or with the complainant’s family. A-3 acted under A-2’s directions and seized the pair of he-buffaloes as the arrears of land revenue remained unpaid even after the service of notice upon P.W. 7. Hence, there is no substance in the contention that A-2 and A-3 actuated by any fraudulent or dishonest motive in effecting seizure of the pair of he-buffaloes. As far as A-l is concerned, he has nothing to do with the seizure of the pair of he-buffaloes. It is alleged in the complaint that A-2 directed A-4 and A-5 to remove the pair of he- buffaloes. In her sworn statement the complainant stated that A-2 took the pair of he- buffaloes and directed A-4 and A-5 to take them away. It was not alleged either in the complaint or in the complainant’s sworn statement that A-l had anything to do with the seizure of the pair of he-buffaloes. For the first time a version is given in the course of the evidence that A-l also had something to do with the seizure of the he-buffaloes. This development introduced in the course of the evidence falsifies the prosecution case as far as A-l is concerned.

24. Before concluding, one other point remains to be considered. A-2 and A-3 acted in exercise of their official duties to secure payment of arrears of land revenue. It was not their intention either to cause wrongful loss to the complainant or to cause wrongful gain to themselves. The fact that land revenue fell in arrears is not disputed. In fact it was paid subsequently. If so the seizure of the pair of he-buffaloes can never be said to amount to theft. It has been held in Ram Ratan vs. State of Bihar [AIR 1965 S.C. 926] that when a person seizes cattle from the disputed land on the ground that they trespassed upon his land he cannot be said to have committed theft of the cattle. In Mohd. Yousuf vs. Abdul Razak [AIR 1965 Mad. 483], it was held that if a creditor through his servants seizes a radio belonging to his debtor claiming it as security for repayment of the debt due to himself, he cannot be held liable for the offence of theft. Even if it be that the seizure was illegal, the remedy available to the complainant is only in tort for damages and there is no right of prosecution. This is especially so when public servants act bona fide and in good faith in the discharge of their duties as has been laid down in Babulal Agarwal vs. Province of Orissa [AIR 1954 Orissa. 227] and L. Ram Narayan Singh vs. A. Sen [AIR 1958 Allahabad 758], The distinction sought to be drawn by the learned Magistrate, as far as the principle laid down by these decisions are concerned, does not appear to my mind to be sound.

25. For all these reasons, I hold that the seizure of the pair of he-buffaloes does not constitute an offence of theft punishable under Section 380 I.P.C. and that the learned Magistrate was not justified in convicting A-l to A-3 of the said offence.

26. Point No. iii: The common object of the alleged unlawful assembly of A- 1 to A-5 is mentioned in the charge as “levy of paddy”. I fail to understand how levy of paddy under statutory provisions can be said to be the common object of an unlawful assembly. Ex. D.20 is the levy demand notice issued by A-2 directing P.W. 7 to deliver Q. 66-00 of paddy as levy on or before 31-1-1969. It is the defence case that since P.W. 7 refused to receive this notice service thereof was effected by affixture. The Karanam of the village has also signed on the reverse of Ex.D-20 on 20-1-1969 in proof of the affixing of the notice. This individual is no more and it is admitted by P.W. 7 that he has no enmity with the said Karanam. Of course P.W. 7 pretends inability to identify the Karanam’s signature found on the reverse of Ex. D-20 though the said individual acted as Karanam during P.W.7’s tenure of office as Village Munsif. There is no apparent reason why A-l and A-2 who are strangers to the complainant and her family and why A-3 who admittedly has no enmity with their family should fabricate Ex.D-20. If for the purpose of collecting levy paddy A-l to A-5 went to the house in the occupation of the complainant and P.W. 7, it is impossible to hold that they constitute themselves into an unlawful assembly. Similarly if the seizure of a pair of he-buffaloes was effected in accordance with the statutory provisions for the lawful purpose of collecting arrears of land revenue and if A-l to A-5 assembled in order to effect such a seizure, then also it cannot be held that they were members of an unlawful assembly. Hence, the lower Court was not justified in finding A-l to A-5 guilty under Section 143 I.P.C.

27. As already mentioned P.W. 7 is a rich and influential ryot. P.W. 4 admits that P.W. 7 is a big ryot of his village wielding considerable influence. Neither he nor the complainant had any intention of delivering the levy paddy lawfully due in respect of the land covered by Ex.P. 1; nor had they the intention of payment of the arrears of land revenue due in respect of the said land. They seem to believe that they could successfully prevent Government servants from collecting what was due from them. It is natural that they felt hurt when the accused took coercive steps against them for collecting what was lawfully due and the present prosecution is the result of their wounded pride and I am satisfied that it is not launched in vindication of the just rights.

28. For all these reasons mentioned above and in view of the orders passed on Criminal M.P.Nos. 505 and 507 of 1973, I find A-l to A-5 not guilty of the offences punishable under Sections 143 and 341 I.P.C. and I also find A-l to A-3 not guilty of the offence punishable under Section 380 I.P.C., and in the result, both these appeals are hereby allowed, the convictions ordered and the sentences passed against the appellants- accused by the lower Court are set aside and the appellant-accused are acquitted. The fine amount, if already paid, shall be refunded to the respective appellant-accused.

Dictated to short-hand writer, transcribed by him, corrected and pronounced by me in open Court, this the 12th day of June, 1973.

(Sd/……. ) Signature of the Judge.

Sessions Judge.