E.C. Chinnaswami Pillai Vs. Chairman of the Arkonam Union - Court Judgment

Excerpt:
penal code (act xlv of 1860), sections 353, 358 - madras local boards act (v of 1884), section 82, clause (2) illegal distraint of doors of house--assault while distraining--offence. - ordersadasiva aiyar, j.1. it is clear to me that the doors ought not to have been distrained under section 82, clause (2) (i), of the local boards act, as they are not moveables see the definition of immoveable in general clauses act and also purushottania v. municipal council of bellary 14 m. 467 on the interpretation of the analogous section in the district municipalities act . the bill collector was, therefore, not acting in the lawful discharge of any duty imposed on him as a public servant when he proceeded to distrain the doors. the conviction under section 353 cannot, therefore, stand.2. it is unnecessary to consider the rather difficult question whether the appellate magistrate was precluded by section 556 of the criminal procedure code from hearing the appeal, as i think that the magistrate who tried the case in the first instance was justified on the evidence in his finding that the petitioner did assault the bill collector, though the assault might have been committed on sudden and grave provocation.3. i alter the conviction to one under section 358. indian penal. code, and reduce the sentence to a nominal fine of three rupees.4. the balance of fine will be refunded.

Judgment:
ORDER

Sadasiva Aiyar, J.

1. It is clear to me that the doors ought not to have been distrained under Section 82, Clause (2) (i), of the Local Boards Act, as they are not moveables see the definition of immoveable in General Clauses Act and also Purushottania v. Municipal Council of Bellary 14 M. 467 on the interpretation of the analogous section in the District Municipalities Act . The bill collector was, therefore, not acting in the lawful discharge of any duty imposed on him as a public servant when he proceeded to distrain the doors. The conviction under Section 353 cannot, therefore, stand.

2. It is unnecessary to consider the rather difficult question whether the Appellate Magistrate was precluded by Section 556 of the Criminal Procedure Code from hearing the appeal, as I think that the Magistrate who tried the case in the first instance was justified on the evidence in his finding that the petitioner did assault the bill collector, though the assault might have been committed on sudden and grave provocation.

3. I alter the conviction to one under Section 358. Indian Penal. Code, and reduce the sentence to a nominal fine of three rupees.

4. The balance of fine will be refunded.