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PETITIONER: HAZARI LAL

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 27/09/1962

BENCH:

ACT: Criminal  Trial-Criminal  force-Use  of,  to  deter   public servant from discharging duty-Tax Officer inspecting account books-Snatched  by accused-If offence made  out-Act  consti- tuting  offence under Sales Tax law  also-Prosecution  under Penal  Code, whether, colourable-Bihar Sales Tax  Act,  1947 (Bihar  XIX of 1947), ss. 17, 26 (1) (h)-Indian Penal  Code, 1860 (Act XLV of 1860), ss. 349, 350, 353.

HEADNOTE: The  Assistant  Superintendent of Commercial  Taxes  paid  a surprise  visit to the shop of the appellant where he  found two  sers  of account books.  He took them  up  and  started looking  into  them.  The appellant snatched away  both  the books.   An  attempt by the orderly peon  of  the  Assistant Superintendent  to  recover  the books  was  foiled  by  the appellant.   The  appellant was tried and convicted  for  an offence  under s. 353 of the Penal Code for  using  criminal force to deter a public servant from discharging his duty. Held, that the appellant was properly convicted under s. 353 Penal  Code.  The snatching of the books amounted to use  of force; the snatching necessarily caused a jerk to the  hands of  the officer which caused motion to his hands within  the meaning  of  s.  349 of the Penal  Code.   The  Officer  was entitled under the Bihar Sales Tax Act, and the Rules to pay a surprise visit to the shop of the appellant without giving him  any notice and the appellant was bound to show him  his account  books.  The officer was lawfully in  possession  of the account books and the appellant had no justification  to snatch them away.  The officer was naturally annoyed at this and accordingly the act of the appellant amounted to use  of criminal force. A  seizure  of the books under s. 17 of the  Sales  Tax  Act would  be  valid only if the reasons for  the  seizure  were recorded  by the officer.  But the present case was not  one of seizure.  Merely holding books found lying in a shop  for perusing them does not amount to their seizure. Prahlad  Ram  v.  State.  (Patna  High  Court.  unreported). distinguished. 420 The act of the appellant amounted to an offence under s.  26 (1)  (h) of the Sales Tax Act also and for  his  prosecution under  that section sanction of the Commissioner would  have been  necessary.   His act was an offence  both  under  that section  and  under  s.  353  of  the  Code.   He  could  be prosecuted  for either or both these offences.  The  offence under s. 353 of the Penal Code was a graver offence than the one  under  s. 26 (1) (h) and in choosing to  prosecute  the appellant under s. 353 the prosecution could not be  charged

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with acting colourably to obviate the necessity of obtaining the sanction. Sonelal  Seth  v.  State, (Patna  High  Court,  unreported), disapproved.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeals Nos.  35 and 36 of 1961. Appeals by special leave from the judgments and orders dated November 1 and September 1960 of the Patna High Court in Cr. Revisions Nos. 812 of 1960 and 76 of 1959 respectively. Sarjoo Prasad and K. K. Sinha, for the appellants. S. P. Varma, for the respondents. 1962.   September  27.   The  judgment  of  the  Court   was delivered by MUDHOLKAR,  J.-This is an appeal by special leave  from  the judgment   of  the  High Court  of  Patna  upholding   the appellant’s  conviction under s. 353, Indian Penal Code  and the sentence passed against him. The facts which are not in dispute are as follows On  the  evening of October 29, 1957, Mr.  Bhupendra  Narain Singh,  Assistant Superintendent of Commercial Taxes,  Patna Sadar  circle, paid a surprise visit to the shop  of  Hazari Lall  & Co., in Barah town in order to inspect the books  of accounts  421 maintained  by the shop.  At that time the appellant  Hazari Lall  was  in the shop.  Mr. Singh found that  two  sets  of account  books were kept in the shop.  He took them  up  and started  looking  into them.  Tile appellant  snatched  away both  the  books  from him, passed them on  to  one  of  his servants  who made them over to another servant who  was  on the  upper  floor.  Mr. Singh directed his orderly  peon  to recover the books.  The peon was, however, prevented by  the appellant  from going to the place where the  account  books had  been taken and in the scuffle which ensued between  the two,  the  orderly’s shirt was torn.  Thereafter  Mr.  Singh went  to  the  police station to  lodge  a  complaint.   The appellant  who  was  brought  there  by  the  Sub-Inspector, tendered  an  apology in writing and so Mr.  Singh  did  not lodge  a  complaint.   He, however, submitted  a  report  in writing  to  the Superintendent of  Commercial  Taxes.   The Superintendent thereupon reported the incident to the Deputy Superintendent  of  Police  and eventually  lodged  a  first information report on November 1. It is urged before us by Mr. Sarjoo Prasad, who appears  for the  appellant, that mere snatching away of books  does  not amount  to using force,.as contemplated by s. 349, 1. P.  C. and at any rate it does not amount to use of criminal  force as   contemplated  by  s.  350,  Indian  Penal  Code.    If, therefore,  the act of the appellant did not constitute  the use of criminal force, his conviction under s. 353, 1. P, C. cannot  be sustained.  His contention is that no  force  was used  against  the person of Mr. Singh and,  therefore,  the requirements of s. 349, I. P.C, were not satisfied.  Section 349, 1. P. C. reads thus :               "Force.   A  person is said to  use  force  to               another if he causes motion, change of motion,               or cessation of motion to that other, or if he               causes to any substance such motion, or change               of  motion, or cessation of motion  as  brings               that               422

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             substance  into contact with any part of  that               other’s  body,  or with  anything  which  that               other is wearing or carrying, or with anything               so  situated  that such contact  affects  that               other’s sense of feeling :               Provided  that the person causing the  motion,               or  change of motion, or cessation of  motion,               causes  that  motion,  change  of  motion,  or               cessation  of motion in one of the three  ways               hereinafter described :               First.-By his own bodily power.               Secondly.-By disposing any substance in such a               manner that the motion or change or  cessation               of motion takes place without any further  act               on  his  part,  or on the part  of  any  other               person.               Thirdly.-By  inducing any animal to  move,  to               change its motion, or to cease to move." It  would be clear from a bare perusal of the  section  that one person can be said to have used force against another if he  causes motion, change of motion, or cessation of  motion to that other.  By snatching away the books which Mr.  Singh was  holding the appellant necessarily caused a jerk to  the hand  or  hands  of Mr. Singh in which he  was  holding  the books.   His  act,  therefore, may be said  to  have  caused motion  to Mr. Singh’s hand or hands.  Further, the  natural effect of snatching the books from the hand or hands of  Mr. Singh would be to affect the sense of feeling of the hand or hands  of  Mr. Singh We have, therefore, no doubt  that  the action  of the appellant amounts to use of force as  contem- plated by s. 349, I. P. C. Mere  use of force, however, is not enough to bring  an  act within  the  terms of s. 353, I.P.C. It has  further  to  be shown  that  force  was used  intentionally  to  any  person without that person’s consent in order  423 to  commit  an  offence or with the intention  or  with  the knowledge  that the use of force will cause injury, fear  or annoyance to the person against whom the force is used.  The contention of Sir.  Sarjoo Prasad is that the appellant  did not intend to commit any offence but only wanted to retrieve his  own  property of which Mr. Singh had  taken  possession without   his  permission.   He  also  contended  that   the appellant’s  act has admittedly caused no injury or fear  to Mr. Singh nor can it be said to have caused any  justifiable annoyance  to  him.  We cannot accept  Mr.  Sarjoo  Prasad’s contention  that the appellant did. not cause  annoyance  to Mr. Singh by snatching away the books from his hands nor  do we  accept his contention that the action of  the  appellant does not  amount to an offence. The contention of Mr. Sarjoo Prasad that Mr. Singh could not inspect  the  account books without the  permission  of  the appellant ignores the provisions of s. 17 of the Bihar Sales Tax  Act,  1947 (Bihar XIX of 1947) and r. 50 of  the  Rules framed  under the Act.  Sub-section (2) of s. 17 of the  Act provides that all accounts, registers and documents relating to  stocks  of goods or purchases, sales and  deliveries  of goods  by  any  dealer and all goods kept in  any  place  of business of any dealer shall at all reasonable times be open to inspection by the Commissioner.  It is common ground that the Commissioner is authorised by law to delegate his  power to  his subordinates and it is not disputed that such  power has  been  delegated  to  the  Assistant  Superintendent  of Commercial Taxes.  Sub-section (4) of s. 17 further empowers the  Commissioner to enter and search any place of  business

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of  any  dealer.  Under his delegated  power  the  Assistant Superintendent of Commercial Taxes, therefore, has the right to   enter  a  place  of  business.   Rule  50  deals   with inspections.   That rule empowers the Commissioner  ’in  his discretion to pay a surprise visit to the business  premises of a dealer for inspection of the 424 accounts,  registers,  documents, stocks and goods  of  such dealer  though the normal procedure is that he  should  give reasonable notice in writing to the dealer of his  intention to make an inspection.  Therefore, though Mr. Singh has  not given  any notice of his intention to visit the shop of  the appellant,  he  was entitled to pay a surprise  visit.   Mr. Singh  paid  such  a surprise  visit  evidently  because  he suspected that the appellant was maintaining a double set of account  books.  In view of the fact that the law confers  a power  upon  the Sales Tax authorities  to  inspect  account books  of  a dealer and for that purpose even  pay  surprise visits to the shop of the dealer it would follow that  there is  an obligation on the dealer to allow the authorities  to inspect  his  books  of account.  No  permission  from  him, express or tacit, for that purpose is necessary.  Mr.  Singh was, therefore, lawfully in possession of the account  books when he took them up in the shop and started perusing  them. The  appellant  had no justification in law  to  snatch  the books  of accounts.  To feel’ annoyed at this action of  the appellant  would be the natural reaction of Mr.  Singh  and, ’therefore,  the appellant’s act must be held to  amount  to use  of  criminal  force.  We are  further  clear  that  the appellant’s  act  in  snatching away the  books  amounts  to obstruction of an officer making an inspection, which act is made punishable by s. 26(1)(h) of the Act. Mr.   Sarjoo  Prasad  then  referred  to   the   prosecution allegation  that  Mr.  Singh, after being  deprived  of  the possession  of account books, directed his peon to  retrieve them and said that the real object of Mr. Singh was to seize the account books under S.    17. He added that this is made further clear from the   following  passage  in  the  report made by Mr.    Singh to his superior.               "From  the statement given above, it is  clear               that  Sri  Hazari  Lall,  proprietor  of  M/s.               Hazari Lall & Co., has deliberately obstructed               me from                                    425               seizing the double sets of accounts which were               found  in  his  business  premises.   He   had               further  assaulted  my peon  in  his  business               premises  besides  snatching away  the  double               sets  of accounts as referred above.   He  has               thereby  committed  offence  punishable  under               law." His  first contention is that Mr. Singh had in  fact  seized the  account  books or had picked them with  the  object  of seizing  and as he had not complied with the requirement  of sub-s.  (3) of s. 17, that is, of recording his  reasons  in writing  for  making a seizure of the books,  his  act  was, illegal  and  the appellant was justified in  resisting  the seizure.   In  support of his contention he  relied  on  the unreported  decision of Patna High Court in Prahlad  Ram  v. State(1).   In that case account books had been seized by  a Superintendent  of Commercial Taxes from the premises  of  a dealer  for the purpose of inspecting them and it  was  held that the seizure was illegal because he had not recorded  in writing  his reasons for making the seizure as  required  by sub-s. (3) of s. 17 of the Act.  The dealer and some of  his

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employees  were convicted of an offence under s. 353, 1.  P. C.  The  High Court acquitted them on the ground  that  they were entitled to use force as the search of the premises and the seizure of the books was illegal.  That case is  distin- guishable from the present one.  Mr. Sarjoo Prasad, however, contends  that here also Mr. Singh had taken  possession  of the account books and he must be deemed to have seized them. In  our  opinion  merely holding books found  lying  in  the premises  for perusing them cannot properly be  regarded  as seizure  because  seizure implies doing something  over  and above  holding an article in one’s hand.  According  to  the Shorter  Oxford  Dictionary  seizure,  among  other  things, means  ......  confiscation or  forcible  taking  possession (land  or  goods); a sudden and forcible  taking  hold."  As already  stated, Mr. Singh merely picked up the books  Which were lying in the shop and did not snatch (1)  Crl.   Revision No. 824 of 1960 decided on  October  6, 1960. 426 them away from anyone nor did he take them by force.  On the contrary  they  were taken away by force by  the  appellant. If, indeed, he had retrieved them by force it may have  been possible  to  urge that that latter act of  his  amounts  to seizure.   The  case,  therefore,  does  not  help   learned counsel. He next contended that the only offence which the appellant has committed was one under s. 26(1) (h)     of the Act  and that  as no previous sanction of the Commissioner  had  been obtained for launching the prosecution the trying Magistrate was precluded by the provisions of sub-s. (2) of s. 26  from taking  cognizance of the alleged offence.  Undoubtedly  had the appellant been prosecuted for obstructing Mr. Singh from inspecting   or  seizing  the  account  books,  the   trying Magistrate would have been incompetent to take cognizance of the   offence   without  the  previous   sanction   of   the Commissioner.    The  appellant  is,  however,   not   being proceeded against for that offence but only for the  offence under  s. 353, I. P. C. for which no sanction  is  required. Learned  counsel  contends  that the  whole  object  of  the prosecution is to get round the provisions of sub-s. (2)  of s.  26  and that that is why the  prosecution  was  launched under s.353, 1. P. C. The suggestion apparently is that  the prosecution of the appellant for the offence under s. 353 is merely  colourable.  Whether Mr. Singh was obstructed  while making  an inspection of the account books or which  he  was intending  to seize them, the Commissioner’s sanction  would certainly have been required under sub-s. (2) if in fact the appellant  was prosecuted specifically for  obstructing  Mr. Singh.   He  could have been prosecuted for  these  offences even  without  proof of the fact that he had  used  criminal force.   From the facts found it would no doubt appear  that the  appellant has committed an offence under s. 26 (1)  (h) of  the  Act as also under s. 353, I. P. C. because  he  has used  criminal force.  He could be prosecuted for either  or both these offences at the discretion of  427 the  prosecution.  It may be that he was not  prosecuted  in respect  of  both  the  offences  and  the  prosecution  was restricted  to  the offence under s. 353, 1. P. C.  only  to obviate  the  necessity  of  obtaining  the   Commissioner’s sanction.   Even so. the prosecution cannot be said to  have done  something  which is unwarranted by  law.   An  offence under  s.  353, I. P. C. is a graver offence  than  the  one under  26 (1) (h) of the Act because it is  punishable  with imprisonment  for a period up to two years or to payment  of

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fine without any limit, or both, whereas an offence under s. 26(1)  (h) is punishable with imprisonment which may  extend up  to six months or with a fine not exceeding Rs.  1,000/-, or  both.   In  choosing to prosecute the  appellant  for  a graver offence under the general law the prosecution  cannot be regarded as having acted colourably. Section  26 (1) (h) of the Act deals only with one  kind  of obstruction  and no more.  But there may be  an  obstruction which  may  involve  graver  consequences  to  the   officer obstructed  such as grievous hurt or even death.   It  would lead  to  startling results if it were to be held  that  the prosecution   acted  colourably  in  not   restricting   the accusation  to a minor offence requiring sanction.  For,  if the  prosecution  were to be so restricted,  grave  offences will   go  unpunished.   Surely,  that  is  not   what   the legislature  could ever have intended when it enacted s.  26 of  the Act.  It makes little difference if the  prosecution decided  to  proceed with respect to a  graver  offence  and ignore one which is of a comparatively minor character. Mr. Sarjoo Prasad relied upon an unreported decision of  the Patna  High  Court in support of his  aforesaid  contention. That  is  the  decision in Sonelal Seth v.  The  State  (1). There the question which arose for consideration was whether an act of the kind proved in the case before us falls  under s.  353, I.P.C., Das, J., who decided the case held that  it does not.  The reason given by him is that the definition (1)  Patna High Court, unreprted. 428 of criminal force contained in s.353, I.P.C.shows that  what is contemplated by the section is the use of criminal  force to  or against a person and not to an inanimate object.   He then observed               "It  is  true that  in  certain  circumstances               criminal force used to an inanimate object may               result  in  the  use of criminal  force  to  a               person   also;   that   is   made   clear   by               illustrations  (a)  and (b)  to  section  350,               Indian  Penal  Code.  In the  particular  case               before me, no force appears to have been  used               to the Inspector of Sales Tax at all.  I doubt               whether  in the circumstances of this case  it               can  be said that criminal force was  used  to               the  Inspector of Sales ’Tax.  In my  opinion,               it would be over-taxing ingenuity to bring the               act  of the petitioner within the mischief  of               criminal  force, as defined in section 350  of               the Indian-Penal Code." The   learned  judge  went  on  to  observe  that   a   more straightforward  course  would have been  to  prosecute  the accused under s. 26 of the Sales Tax Act.  With respect,  we may point out that the learned judge has omitted to consider the words "’change of motion or cessation of motion to  that other........  Had the learned judge home these  ingredients in  mind  he would no doubt have considered  the  effect  of snatching  away the books from the hands of the  officer  in that  case.   In the circumstances we find it  difficult  to agree with the conclusion of the learned judge.  We also  do not  agree  with the suggestion implicit in  the  concluding part  of  his  judgment that where  the  facts  disclose  an offence under s. 26 of the Bihar Sales Tax Act resort should rather be had to the provisions of that section’ than to the general law even if the act amounts to an offence under  the general law.  We are, therefore, unable to accept his  view. We, therefore, dismiss the appeal.  429

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Along  with this appeal Criminal Appeal No. 35 of  1961  was also  heard  and this judgment will govern the  decision  of that  appeal also.  There the facts are  slightly  different only  in  one respect, in that the account  book  which  was snatched away from the hands of the Assistant Superintendent of  Commercial  Taxes was in the process torn,  part  of  it remaining in the hands of the- Assistant Superintendent  and a  part  in the hands of the dealer who  snatched  it  away. Apart from that, there is no difference and the points which were urged before us were identical.  For the reasons  given by us we dismiss this appeal also. Appeals dismissed.