Beverley, J.

1. The petitioner, Dharam Chand Lal, has been convictedunder Section 186 of the Penal Code of obstructing one Miyajan, a Civil Courtpeon who was attaching his property in execution of a decree, and he has beenfined Rs. 100. Against this conviction the petitioner has appealed to theSessions Judge, and he has also obtained a rule from this Court to show causewhy the proceedings should not be quashed as bad in law, or, why the appealshould not be transferred to be heard by some other Judge. The principal pointurged before us is that, at the time of the occurrence, Miyajan was not actingin the discharge of his public functions, inasmuch as the warrant of attachmentwas addressed to the Nazir of the Court, and the Nazir had no authority todelegate its execution to the peon; nor, in fact, did he so delegate itsexecution.

2. A further point was raised that the Deputy Magistrateought not to have taken cognizance of the case, inasmuch as there was no formalcomplaint or sanction of the Court which issued the warrant; but on this pointwe need say no more than this, that although there may have been some slightirregularity in the institution of the proceedings, it does not appear to usthat that irregularity has occasioned any failure of justice, and we shouldnot, therefore, be disposed to interfere with the conviction on that ground.

3. The warrant in question in this case is in the printedform No. 28 authorized by this Court, corresponding with the form No. 136 ofthe fourth schedule to the Code of Civil Procedure with such modifications ashave been, sanctioned by this Court under Section 644.

4. The warrant was issued by the District Judge of Purneahon the 5th May 1894, and was addressed, as usual, to the Nazir of his Court,Durga Proshad Dube by name. On the reverse is the following endorsement: 481,Jhumak Lal (scored through) 4 days. 14-5-94. Miyajan. (Sd.) K. Bhaduri.15-5-94."

5. The endorsement is thus explained in the evidence of theNazir Durga Proshad Dube, and of the Naib Nazir Kali Nath Bhaduri. The warrantwas made over for execution to Jhumuk Lal, in the first instance, on the 14thMay. He returned it on the morning of the 15th, with a report that he could notexecute it, as no one attended on the part of the decree-holder to point outany property belonging to the judgment-debtor which he could attach. Thedecree-holders mukhtar complained that Jhumuk Lal had never told him that hewas going to execute the warrant, and at his request the warrant was that sameday made over to another peon, Miyajan, whose name was then and there endorsedon the warrant.

6. In arguing the matter before us, Mr. Hill has relied uponthe case of Symonds v. Kurtz 16 Cox. 726 and upon two unreported decisions ofthis Court.

7. In Revision case No. 240 of 1894, upon a reference fromthe Sessions Judge of Tirhoot, a Bench of this Court (Trevelyan and Banerjee,JJ.) set aside a conviction under Section 186 of the Penal Code, on the groundthat the person obstructed was not acting in the discharge of his public dutiesin executing a certain warrant. The warrant in that case was issued by theMagistrate for the realization of a chokidars salary under Section 45 ofBengal Act VI of 1870; it was addressed to the Court Sub-Inspector, and was byhim endorsed to a peon of the Sub-divisional Court, who was the personobstructed. The Court, having regard to the words of the section in question(" and shall therein charge some person- therein named with the executionthereof ") appears to have held that the Court Sub-Inspector had noauthority to delegate the execution of the warrant to any other person.

8. In Revision case No. 610 of 1894, another Bench of thisCourt (BANERJEE and Sale, JJ.) set aside a similar conviction under Section 186of the Penal Code, on the ground that it was not proved that the person who wasobstructed in the execution of the warrant had any authority to execute it. Thewarrant in that case was addressed to the nazir of the Collectors Office atSerampore, but the person who went to execute it was the Bahshi or AssistantNazir. The Court remarked: "There is nothing to show how the delegationwas effected in this case, whether there was any delegation at all by theNazir, or whether the Balcshi merely followed what the Deputy Magistrate callsthe usual practice, and took these two purwanahs addressed to the Nazir for thepurpose of executing them without anything express being said to him by theNazir. Upon this point there is an utter blank in the evidence. That being so,and the person against whom the warrants were issued being, as was observed byone of the learned Judges who decided the case of Symonds v. Kurtz 16 Cox. 726,entitled, to know whether it was executed by a person who had authority toexecute it, we are of opinion that the conviction under Section 186 of theIndian Penal Code for obstructing a public servant in the discharge of his publicfunctions cannot be sustained on the evidence as it stands." The furthercontention was raised in that case that the Nazir had no power to delegate hisauthority, but the Court expressly refrained from pronouncing any opinion uponthat contention, there being no evidence before them that the Nazir haddelegated his authority.

9. The case of Symonds v. Kurtz 16 Cox 726 arose out of theexecution of a warrant of distress for sewers rates under Section 7 of 12 and13 Viet., cap. 50. Section 9 of that statute provides that the warrant issuedby the Commissioners "may be directed to the Bailiff, Expenditor,Dyke-reeve, Collector, or other sewers officer within such limits, and to anyother person or persons, or to any one or more of them, as by the two Commissionersof Servers granting the same shall be deemed fit." The warrant in thatcase was directed to the Collector of the sewers rates, who made it over forexecution to another person, who again handed it over to a third person. It washeld that, under the statute, the Collector had no authority to hand it over toany other person for execution. Field, J., said : It is a general principle/oflaw that every person whose house is entered and whose property is seized, isentitled to know the authority under which it is done, and to be able to seewhether that authority-has been followed. Here the warrant under the statutewas given to him who had no authority to hand it over to another person forexecution. It would be a shocking thing to say that an authorized man can givethe warrant to any person he pleases, and allow that person to commit atrespass. The respondent against whom the warrant was issued was entitled toknow whether it was executed by a person who had authority to execute it, andthe only person who would have such authority would be the person to whom itwas directed." And Cave, J., said : I am clearly of the same opinion. Theman who executed the warrant was not authorized to execute it."

10. It seems to me that none of the cases relied on by Mr.Hill concludes the matter now before us. In two of those cases the decisionturned upon the wording of the special statute under which the warrant inquestion was issued,, and in the third case this Court expressly refrained fromdeciding the point,, not being satisfied that the Nazir had, as a matter offact, delegated his authority.

11. On the other hand, the question appears to have beenbefore the Allahabad High Court in the case of Abdul Karim v. Bullen I.L.R.All. 385, and that Court decided that a Nazir was not debarred by anything inthe Code of Civil Procedure from authorizing a deputy to execute a warrant forhim, and that the endorsement of the deputys name on the back of the warrantwas sufficient prima facie evidence of the delegation. The learnedAdvocate-General has also drawn our attention to the case of Walsh v.South-worth 6 Exch. 150, in which it was held that a warrant directed by twoJustices to the Overseers of a township could legally be executed by them bydeputy. In that case POLLOCK, C.B., said : It is quite clear that for mereministerial purposes every public officer may appoint a deputy as for theperformance of acts which do not require any exercise of discretion orjudgment." PARKE, B., said: "A public officer, whose duty is purelyministerial, may always appoint a deputy." And MARTIN, B., said: "Ithink that the execution of a warrant is purely such ministerial duty as tojustify the Overseers in deputing it to other parties."

12. It seems to me, however, that this is not a matter to bedecided in accordance with English law and precedents, but that we shouldrather look to the practice and procedure which obtains and has obtained inBengal in respect of the service and execution of processes. There is noanalogy whatever between the legal status of a Sheriff in England and theoffice of the Nazir of one of our Mofussil Courts. The question before us issimply, whether, under the law and practice obtaining in the Mofussil, a Nazirhas authority to execute processes addressed to him through his deputies orsubordinates; and this is really the only question in the present case, becausethe evidence clearly shows that the peon, Miyajan, was deputed by the Nazir toexecute the warrant of distress.

13. Now it may be convenient, in the First Instance, toexamine the provisions of the Code of Civil Procedure as regards the serviceand execution of processes of Court.

14. Section 72 deals with the summons to a defendant, and itprescribes that the summons shall ordinarily be delivered or sent to the properofficer, to be served by him or one of his subordinates.

15. Section 94 prescribes that all notices and ordersrequired by this Code to be given to or served on any person shall be...servedin the manner hereinbefore provided for the service of summons.

16. Section 166 provides that every summons to a person togive evidence or produce a document shall be served as nearly as may be inmanner hereinbefore provided for the service of summons on the defendant.

17. Section 251 relates to the issue of a warrant for theexecution of a decree and runs as follows: "Such warrant shall be datedthe day on which it is issued, signed by the Judge or such officer as the Courtappoints in this behalf, sealed with the seal of the Court, and delivered tothe proper officer to be executed. And a day shall be specified in such warranton or before which it must be executed, and the proper officer shall endorsethereon the day and manner in which it was executed, or, if it was notexecuted, the reason why it was not executed, and shall return it with suchendorsement to the Court from which it issued."

18. The words "to be executed" in this sectionwould seem to imply that it was not intended that the "properofficer" should himself execute all warrants sent to him. And indeed thereis nothing in the Code which indicates in any way that warrants, being eitherwarrants of arrest or warrants of attachment or for distress and sale, are tobe executed by the "proper officer" in any manner different from theservice of summonses. In the case of attachment of moveable property, forinstance, the warrant is directed to the Nazir, and Section 269 of the Codeprovides that "the attaching officer shall keep the property in his owncustody, or in the custody of one of his subordinates, and shall be responsiblefor the due custody thereof."

19. Section 336 treats of the arrest of a judgment-debtorand speaks of the officer authorized to make the arrest; and Section 337 speaksof "the officer entrusted with the execution of the warrant."

20. Now the "proper officer" to whom all summonsesand warrants are sent in the ordinary course of business in accordance with theprovisions of Sections 72 and 251 of the Code is the Nazir, and in the case ofwarrants they are expressly directed to him for execution. That is clear fromthe printed forms prescribed by the High Court.

21. The Nazir has been recognized as the proper officer ofthe Court for the purpose of executing its processes from the earliest times ofthe British administration of justice in Bengal. In Regulation IV of 1793,which was the first enactment on the subject of procedure in civil cases, itwas laid down in Section 5 that the summons on the defendants was to be served"by the Nazir or his inferior officer;" and Section 6 provided thatwhen material witnesses did not appear upon summons, the Court might issue anorder to the Nazir to seize and bring the witnesses before the Court; Section13 prescribed that "every process, rule, order or decree of the Zillah andCity Courts was to be immediately served or executed without application to anyperson or the interference of any individual whomsoever, according to therequisition of it within the limits of the special jurisdiction of eachCourt."

22. Section 21 provided for the service of sommonses and theexecution of processes by peons, and fixed their scale of remuneration. Thename of each peon deputed to serve the process, the amount of his subsistencemoney, and the number of days for which he was to receive it, were to beendorsed on the writs.

23. Regulation V of 1804 provided for the appointment andremoval of native officers of Government in the judicial and other departments;but the Regulation was not to affect the "Naib Nazirs, mirdahs, peons andburkundazes, and similar descriptions of public servants who are nominated andremoved upon sufficient cause by their immediate superiors under theresponsibility of the latter for their good conduct;" and Section 12allowed the Nazirs as heretofore to appoint their own naibs and the mirdahs andpeons or any similar descriptions of public servants employed under theirimmediate direction and control."

24. By Regulation II of 1806, Section 2, Clause (3) thesummons was to be served on the defendant "through the Nazir of the Courtby a single chaprassi or peon;" Regulation XXVI of 1814 again dealt withthe same subject of procedure in civil cases; and Section 13 treated of thepeons employed under the Nazir for the execution of processes. Those peons whowere not salaried servants of Government were to be registered and to wear adistinguishing badge, and the section provided for their remuneration out ofthe tallubbanah. By Regulation VII of 1825, Section 3, the Judges andRegistrars of the Zillah and City Courts, who usually employ the Nazirs ofthose Courts to conduct the public sale of personal property in execution ofdecrees, or other judicial process, were authorized to employ the same officersin the public sale of Immovable property.

25. By Regulation VII of 1832, Section 5, Munsifs wereauthorized to levy tallubbanah for the service of processes, but by Clause 4 ofthat section the duties assigned to the Nazir in Regulation XXVI of 1814 wereto be performed by the Munsifs themselves. This rule was abrogated by Act XIVof 1845, which enacted that Munsifs also should retain Nazirs on theirestablishments.

26. In the third edition of his "Procedure of the CivilCourts of the East India Company in the Presidency of Fort William in RegularSuits" (1856) Mr. William Macpherson says at p. 181: "The process isexecuted by the Nazir of the Court through his inferior officers, the peonsattached to the Court." And at pp. 190, 196 and 423 forms are given ofwrits, addressed in every instance to the Nazir of the Court.

27. The old Regulations to which I have referred wererepealed some years ago, but it has been thought necessary to refer to them, inorder to show that the present system under which all processes of the CivilCourts are executed through the Nazirs establishment is a system that has beenin existence for over a century. Certain changes in details have been effectedof late years, but they do not affect the general principle that the Nazir hasalways been regarded as the "proper officer" responsible to the Courtfor the execution of its processes, and that he is allowed to entertain asubordinate establishment to whom the duty of personally serving or executingthe processes sent to him may be delegated. The Nazir is now one of the ministerialofficers of the Court referred to in Chapter VI of Act XII of 1887; he is asalaried officer of Government, giving security to Government for the dueperformance of his duties. The Naib Nazir and the peons are also now salariedofficers of Government, subordinate to the Nazir. The number of the peons to beemployed for the service and execution of processes in each district is bySection 22 of the Court Pees Act fixed by the District Judge, and theremuneration is by Section 20 settled by the High Court. The Court Fees Actdistinctly contemplates that the peons are to be employed, not only for theservice of summonses, notices or orders, but for the execution of otherprocesses, such as warrants of arrest or of attachment and distress. By therules of this Court, Nazirs are held responsible for the due and regularservice of all processes entrusted to them for service by themselves and, theirsubordinates, and in each case for the correctness of the statements made inthe return."-Civil Rules and Orders, Part I, Chapter I, Section 9 (m). Therates of salaries fixed by the Court are given in Part LI, Chapter VII; Section10.

28. The practice of endorsing the name of the peon upon theback of the process, as evidence of his being delegated or deputed to executeit dates, as has been said, from 1793, and although, as was pointed out by thelearned Judges who decided the case of Abdul Karim v. Bullen I.L.R. All. 385above referred to, the authority might well be conferred in more clear andexplicit terms than are implied by the mere endorsement of the peons name,still it is impossible to say that that is not sufficient evidence of thedelegation. Nor would it seem that the person against whom such a warrant isissued has any real ground for questioning the peons authority to execute it,or that he has any right to complain that he is left in ignorance as to thatauthority. The warrant itself bears the seal and signature of the Court fromwhich it issues; the peon who executes it wears a badge on which is engravedthe name of the Court to the establishment of which he belongs; he is asalaried Government servant, and his name is endorsed on the back of thewarrant. It would seem, therefore, that there are sufficient safeguards againsta person being subjected to illegal process, and sufficient material to enableany person so subjected to obtain redress.

29. I am of opinion, therefore, that Mr. Hills contentionin this case fails. I find that the Nazir had authority to delegate theexecution of the warrant to Miyajan peon, and that it is proved that he did sodelegate it.

30. At the same time I think that, having regard to the factthat the person alleged to have been obstructed was a peon on the establishmentof the District and Sessions Judge of Purneah, and that the conduct of theNazir of the Judges Court is called in question, it will be more satisfactoryto all parties if the appeal is heard by some other Judge. As we intimated atthe hearing, therefore, the appeal is transferred for trial to the SessionsJudge of 24-Pergunnahs, and we direct that the records be sent direct to hisCourt with a copy of this order, in order that there may be no further delay inthe hearing of the appeal.

John Freeman Norris, J.

31. I am of the same opinion and for the same reasons.

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Dharam Chand Lal vs.Queen-Empress (06.03.1895 - CALHC)