Full Judgment
1. Upon the facts, we agree with the finding of the Subordinate Magistrate that there was a resistance by the accused to the attachment, and we cannot agree with the Assistant Magistrate that such resistance was not proved. The evidence of the Union servants is corroborated by the probabilities as well as by the official report that was submitted at once, and it is impossible to believe the defence story that the Chairman of the Union with a large escort should have come to make the distraint and then have gone away without doing so, although there was no resistance.
2. The next question is whether the resistance was lawful as has been ruled by the Assistant Magistrate on the ground that the provisions of the Local Boards Act (V of 1884) under which the distraint was made were not regularly complied with in regard to
(1) the preliminary steps for making the demand,
(2) the service of the notice, and
(3) the subjects of seizure. In regard to
(1) the only defect appears to have been an omission to fill up one column in the house register, which defect may be taken to be cured by Section 155, Clause
(1) of the said Act (V of 1884), inasmuch as the provisions of the Act were in substance and effect complied with. The Assistant Magistrate was wrong in saying that no house-register was kept, and also in saying that it is not shown the demand notice was served ten days after the tax was payable, because the Chairman gives evidence proving both these points. In regard to
(2) we consider that there was no real departure from the procedure prescribed in the Act (V of 1884) for the service of notices. As regards
(3) we must admit that the articles seized a spade and a bucket--were either tools of an artisan, such as a potter or implements of husbandry, and were therefore exempt under Section 94 of the Act (V of 1884) from attachment. The question then is whether this circumstance justified the resistance, and rendered it no offence. We clearly think that it did not, as the act, however irregular or illegal it may have been, was the act of a public servant acting in good faith under colour of his office, and against such an act the accused had no right of self-defence under Section 99 of the Penal Code, inasmuch as there was no apprehension of death or of grievous hurt. This case is governed by the rulings of this Court in several previous cases Queen-Empress v. Ramayya I.L.R. 13 Mad. 148 Queen-Empress v. Pukot Kotu I.L.R. 19 Mad. 349 and Queen-Empress v. Tiru chittarnbala Pathan vide ante p.
78. The case, Queen-Empress v. Tulsiiam I.L.R. 13 Bom. 168 referred to by the Assistant Magistrate, was a case in which it was found that the person acting was in effect not a public servant. The other case, Queen-Empress v. Kalian I.L.R. 19 Mad. 310 has no application here, the question there being only in regard to the lawfulness or otherwise of the custody from which the accused escaped.
3. We must therefore set aside the judgment of acquittal passed by the Appellate Court and uphold the conviction of the accused under Sections 186 and 353 of the Penal Code. As regards the sentence of two months' rigorous imprisonment and Rs. 50 fine imposed by the Subordinate Magistrate, we consider it to he excessive as no violence was used. We reduce the imprisonment to the 26 days' imprisonment, which the accused has already undergone, and remit the fine which, if paid, must be refunded.
4. Ordered accordingly.