Batchelor, J.
1. The applicants in this case have been convicted under Section 186, Indian Penal Code, of the offence of voluntarily obstructing a public servant in the discharge of his public functions. The circumstances underlying the prosecution are these: The petitioners own a shop at Dhulia situated on the Agra Road, and the shop abuts on that road, which is lined by two gutters. Between the petitioners' shop and the near gutter there is a small strip of land which admittedly for a period of over forty years the petitioners have been using for the purpose of depositing their bales and other goods. Latterly a dispute arose between the Municipality and the petitioners with reference to the title to this strip of .land, the petitioners contending that it was their property and that the public road-way began beyond the gutter.
2. On the 20th September 1911 the Municipality prosecuted the petitioners under the Municipal Act for an alleged encroachment upon this strip of land. The prosecution was unsuccessful, the petitioners being acquitted. Then on the 31st October 1911 the Chief Officer of the Municipality accompanied by a posse of Municipal servants came to the petitioners' shop and attempted to remove the goods which the petitioners had placed upon this disputed strip. The petitioners obstructed the Municipal Chief Officer in his attempt to remove the goods and they have accordingly been convicted.
3. In the Court of the learned Magistrate who tried the case the main issues were : Whether the Municipal Officer had power to remove the encroachment or obstruction on a public street; and whether the accused had deposited boxes and other things on the public street; and thus caused an obstruction. Both these issues were determined in the affirmative, that is to say, against the petitioners.
4. The petitioners appealed to the Sessions Judge and the Judge has affirmed the conviction mainly on the ground that in his view it was wholly unnecessary for the trial Court to go into the merits of the dispute which existed between the Municipality and the petitioners as to the ownership of the land. The Sessions Judge indeed goes so far as to say that it was into this error which the Magistrate fell. In the Sessions Judge's opinion all that a criminal Court is concerned with is whether the action of the Municipality or its servants was on the face of it illegal. The learned Government Pleader who appears to support this conviction admits that he cannot defend it on the grounds taken by the Sessions Judge, and in our opinion those grounds are unsustainable. Before an offence under Section 186 of the Penal Code can be said to be established against any person it is requisite, as the section itself expressly recites, to prove that the public servant obstructed was obstructed in the discharge of his public functions, and that we take it is a matter of fact and not a matter of the public servant's intentions. His intentions may have been perfectly honest, but if in fact and in law the functions in the discharge of which he was obstructed were not public functions, then no offence can be committed under this section. 4. It is plain that the functions would not be public functions if they fell wholly outside the jurisdiction or authority which he as a public officer Now in this case it is admitted on all hands that, as we have said, for a period of over forty years this strip of land has been used by the petitioners. It is equally admitted that there does and did exist between them and the Municipality a bona fide civil dispute as to the ownership of this plot. That being so it is at least equally likely at present that the land may be the Municipality's or that it may be the petitioners', but no man can be convicted of a criminal offence where the theory of his guilt is no more likely than the theory of his innocence.
5. On behalf of the Municipality recourse was sought to be had to the provisions of Section 122 of the Municipal Act. But in our opinion those provisions do not assist the Municipality for they do not contain what alone would justify the Municipality's action in this matter, a clause to the effect That should any bona fide dispute exist between the Municipality and the private citizen as to the ownership of immoveable property, the Municipality is empowered to decide that dispute for itself. The case, we think, resembles that which was decided in Queen-Empress v. Sagan (1888) UCC. 366. The learned Government Pleader indeed suggested that this case should be distinguished on the ground that we have here, what the Judges in that case had not, a finding on evidence that the parcel of land in question is part of a public street. We have looked into the judgment and into the evidence upon this point. There is no issue putting in controversy the precise nature of this strip of land, and as we read the judgment there is not finding that the land is part of a public street.
6. We think, therefore, that the case is indistinguishable from Queen-Empress v. Sagani (1888) UCC. 366, and upon the grounds there stated, as well as those which we have stated for ourselves, we think that the conviction cannot be sustained. We must, therefore, reverse it, acquit the petitioners and direct that the fines, if paid, should be refunded to them.