Hazari Lal vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 35 and 36 of 1961

Decision Date: 27 September, 1962

Coram: MUDHOLKAR, J.

In the matter of Hazari Lal versus the State of Bihar, decided on 27 September 1962, the Supreme Court considered a criminal prosecution involving the use of force to obstruct a public servant in the discharge of his duty. The case arose from an incident in which the Assistant Superintendent of Commercial Taxes made an unannounced, surprise inspection of the shop belonging to the appellant, Hazari Lal. During the inspection the officer discovered two sets of account books, lifted them, and began to examine them. The appellant seized both books from the officer’s hands, and when the orderly peon accompanying the officer attempted to retrieve the books, the appellant prevented that effort. The appellant was subsequently tried and convicted under section 353 of the Indian Penal Code for employing criminal force to deter a public servant from performing his official functions.

The Court held that the conviction under section 353 was proper because the act of snatching the books constituted the use of force within the meaning of that provision. The Court explained that the removal of the books caused a jerk to the officer’s hands, which amounted to motion of the officer’s hands as contemplated in section 349 of the Penal Code. The Court further observed that under the Bihar Sales Tax Act of 1947, specifically sections 17 and 26(1)(h), the tax officer was authorised to make a surprise visit to the shop without prior notice and was entitled to demand the production of the account books. Consequently, the officer was lawfully in possession of the books at the time of the incident, and the appellant had no lawful justification for seizing them. The Court noted that the officer’s annoyance was a natural consequence of the appellant’s unlawful act, thereby satisfying the element of criminal force.

The Court distinguished the present circumstances from a situation involving a seizure under section 17 of the Sales Tax Act, which would require the officer to record reasons for seizure. Here, the officer merely held the books for inspection and did not effect a formal seizure, a distinction reinforced by reference to the Patna High Court decision in Prahlad Ram v. State. The Court also addressed the appellant’s alleged violation of section 26(1)(h) of the Sales Tax Act, indicating that such a breach would require prior sanction from the Commissioner, which had not been obtained. Nonetheless, the Court clarified that the appellant’s conduct constituted an offence both under the Sales Tax Act and under section 353 of the Penal Code, and that he could be prosecuted for either or both offences. Because the offence under section 353 is of a more serious nature than that under section 26(1)(h), the prosecution’s choice to proceed under the Penal Code provision did not amount to colourable conduct intended to evade the requirement of obtaining sanction. The Court therefore affirmed the conviction under section 353, rejecting any argument of procedural impropriety.

Disapproved. Judgment: Criminal Appellate Jurisdiction. Criminal Appeals Nos. 35 and 36 of 1961. These appeals were filed by special leave against the judgments and orders dated 1 November 1960 and September 1960 rendered by the Patna High Court in Criminal Revisions Nos. 812 of 1960 and 76 of 1959 respectively. Counsel for the appellants were Sarjoo Prasad and K. K. Sinha, while counsel for the respondents was S. P. Varma. The judgment was delivered on 27 September 1962 by Justice Mudholkar.

This case arises on an appeal by special leave from the decision of the Patna High Court that upheld the conviction of the appellant under Section 353 of the Indian Penal Code and the sentence imposed on him. The parties agree on the basic facts of the incident. On the evening of 29 October 1957, Mr. Bhupendra Narain Singh, who held the position of Assistant Superintendent of Commercial Taxes for the Patna Sadar Circle, made an unannounced visit to the premises of Hazari Lall & Co., a shop located in Barah town. The purpose of his visit was to examine the shop’s books of account. At the time of his arrival, the appellant, Hazari Lall, was present inside the shop.

During the inspection, Mr. Singh discovered two sets of account books kept in the shop. He lifted the books and began reviewing them. The appellant then forcibly seized both books from Mr. Singh, transferring them first to one of his servants and subsequently to another servant who was situated on the upper floor of the premises. Mr. Singh instructed his orderly peon to retrieve the books. However, the appellant prevented the peon from reaching the location where the books had been taken. In the ensuing struggle between the appellant and the peon, the peon's shirt was torn. Following this altercation, Mr. Singh proceeded to the police station with the intention of lodging a formal complaint.

When the appellant was escorted to the police station by a Sub‑Inspector, he submitted a written apology to Mr. Singh. Consequently, Mr. Singh chose not to file a complaint at that time. Nevertheless, Mr. Singh prepared a written report and forwarded it to the Superintendent of Commercial Taxes. The Superintendent, after receiving the report, communicated the incident to the Deputy Superintendent of Police, who thereafter registered a First Information Report on 1 November 1957.

For the appellant, counsel argued that the mere act of snatching the books should not be characterized as the use of force contemplated by Section 349 of the Indian Penal Code, and that it certainly did not constitute the criminal force defined in Section 350 of the same Code. The counsel maintained that, because no force was employed against the person of Mr. Singh, the requirements of Section 349 were not fulfilled. Accordingly, the conviction under Section 353 could not be sustained. The appellant’s contention was that the snatching did not amount to a criminal force, and therefore the statutory basis for the conviction was absent.

The Court placed before it the wording of Section 349 of the Indian Penal Code, which reads: “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, or cessation.” This provision was cited to examine whether the appellant’s act of taking the books from Mr. Singh satisfied the legal definition of force.

Section 349 of the Code of Criminal Procedure defines force as any motion, change of motion, or cessation of motion that brings a substance into contact with any part of another’s body, or with anything that person is wearing or carrying, or with anything positioned so that such contact affects the other’s sense of feeling. The provision further states that the person causing the motion may do so in one of three ways: first, by his own bodily power; second, by placing a substance so that the motion occurs without any further act by him or anyone else; or third, by inducing an animal to move, change its motion, or cease to move. A plain reading of this description shows that a person can be said to have used force against another when he causes any of these motions, changes, or cessations. By forcibly snatching the books that Mr Singh was holding, the appellant inevitably produced a sudden jerk in the hand or hands that were grasping the books. This action therefore caused motion of Mr Singh’s hand or hands, and the immediate effect of that motion would be to affect the sense of feeling in those hands. Accordingly, there is no doubt that the appellant’s conduct satisfies the definition of force contained in section 349 of the Code of Criminal Procedure.

While the presence of force satisfies section 349, the offence under section 353 of the Code of Criminal Procedure also requires that the force be used intentionally against a person without that person’s consent, either to commit an offence or with the knowledge that the force will cause injury, fear, or annoyance to the person. The counsel for the appellant argued that the appellant’s sole intention was to retrieve his own property that Mr Singh had taken without permission, and contended that no injury, fear, or justifiable annoyance resulted from the snatching. The Court, however, rejected this contention, holding that the appellant’s act did cause annoyance to Mr Singh and therefore satisfied the additional element required by section 353. The counsel further suggested that Mr Singh could not examine the account books without the appellant’s permission, citing section 17 of the Bihar Sales Tax Act, 1947 and rule 50 made thereunder. The Court noted that section 17 expressly authorises the Commissioner to inspect, at reasonable times, all accounts, registers, documents, and goods of any dealer, and that such authority may be delegated to sub‑ordinates such as the Assistant Superintendent of Commercial Taxes. Consequently, the appellant’s claim that the books could not be inspected without his consent was untenable in view of the statutory provisions governing inspection rights.

The Court observed that sub‑section (2) of section 17 of the Bihar Sales Tax Act, 1947 states that all accounts, registers and documents concerning the stocks of goods, purchases, sales and deliveries of goods by any dealer, as well as all goods kept in any place of business of any dealer, must be open to inspection by the Commissioner at all reasonable times. It was accepted as common ground that the Commissioner is authorised by law to delegate his powers to subordinate officials and that it was not contested that such delegation had been made to the Assistant Superintendent of Commercial Taxes. Moreover, sub‑section (4) of section 17 further empowers the Commissioner to enter and search any place of business of any dealer, and consequently, under the delegated authority, the Assistant Superintendent of Commercial Taxes also possessed the lawful right to enter a dealer’s place of business. Rule 50, which deals with inspections, empowers the Commissioner, at his discretion, to make a surprise visit to the premises of a dealer for the purpose of inspecting the accounts, registers, documents, stocks and goods of that dealer, although the normal procedure requires that he give reasonable written notice to the dealer of his intention to inspect. Accordingly, the Court held that even though Mr Singh had not given any prior notice of his intention to visit the appellant’s shop, he was legally entitled to make a surprise visit. The Court explained that Mr Singh’s surprise visit was apparently motivated by his suspicion that the appellant was maintaining a double set of account books. In view of the statutory provision that confers upon the sales‑tax authorities the power to inspect a dealer’s account books, and which expressly allows surprise visits, the Court concluded that a dealer has an obligation to permit such inspection without needing to give either express or tacit permission. Therefore, when Mr Singh lawfully possessed the account books in the shop and began to examine them, the appellant had no legal justification for snatching the books away. The Court further stated that it was a natural response for Mr Singh to feel annoyed by the appellant’s action, and consequently the appellant’s conduct must be characterised as the use of criminal force. In addition, the Court clarified that the appellant’s act of snatching the books amounted to obstruction of an officer carrying out an inspection, an offence punishable under section 26(1)(h) of the Act. Mr Sarjoo Prasad then referred to the prosecution’s allegation that after being deprived of possession of the account books, Mr Singh directed his peon to retrieve them and asserted that the real object of Mr Singh was to seize the books under section 17. He highlighted a passage from the report made by Mr Singh to his superior, which read: “From the statement given above, it is clear that Sri Hazari Lall, proprietor of M/s. Hazari Lall & Co., has deliberately obstructed me …”. This passage, according to the prosecution, demonstrated that the appellant had willfully obstructed the officer’s inspection.

The report submitted by Mr. Singh stated that the appellant had attempted “from 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.” The appellant’s first contention was that Mr. Singh had actually seized the account books, or at least picked them up with a view to seizure, and that because Mr. Singh had failed to comply with sub‑section (3) of section 17—which requires a written recording of the reasons for making a seizure—his act was illegal and the appellant was justified in resisting. To support this argument, the appellant relied on the unreported Patna High Court decision in Prahlad Ram v. State(1). In that case a Superintendent of Commercial Taxes had taken account books from a dealer’s premises for inspection, and the court held the seizure illegal because the superintendent had not recorded his reasons in writing as mandated by sub‑section (3) of section 17. Consequently the dealer and several employees were convicted under section 353 of the Indian Penal Code, but the High Court acquitted them on the ground that they were entitled to use force since the search and seizure were unlawful. The present court distinguished that case from the current facts.

Mr. Sarjoo Prasad, however, argued that Mr. Singh’s taking possession of the books should be deemed a seizure. The court observed that merely holding books that are lying in the premises for the purpose of perusing them does not amount to seizure, because seizure implies an act beyond simply holding an article. The Shorter Oxford Dictionary defines “seizure” as “confiscation or forcible taking possession (land or goods); a sudden and forcible taking hold.” The court noted that Mr. Singh only picked up the books that were lying in the shop and did not snatch them from anyone, nor did he take them by force; rather, the books were taken away by force by the appellant. Had Mr. Singh retrieved the books by force, that might have been characterized as a seizure, but the cited case therefore did not assist the learned counsel. The appellant further contended that the only offence he committed was under section 26(1)(h) of the Act and that, because no prior sanction from the Commissioner had been obtained, the magistrate was barred by sub‑section (2) of section 26 from taking cognizance. The court acknowledged that, had the appellant been charged with obstructing Mr. Singh’s inspection or seizure of the books, the magistrate would indeed have been precluded from proceeding without the required sanction.

The Court observed that a magistrate would be incompetent to take cognizance of the alleged offence without first obtaining the required sanction of the Commissioner. However, the appellant was not being prosecuted for that particular offence; the charge framed against him was solely under section 353 of the Indian Penal Code, which does not demand prior sanction. Counsel for the appellant contended that the entire purpose of the prosecution was to evade the provisions of subsection (2) of section 26, and therefore the case was deliberately instituted under section 353. The suggestion advanced was that the proceeding against the appellant under section 353 was merely colourable and intended to bypass the sanction requirement. The Court noted that whether Mr. Singh had been obstructed while inspecting the account books or while attempting to seize them, the Commissioner’s sanction would have been mandatory under subsection (2) if the charge specifically concerned obstruction of Mr. Singh. Even in the absence of proof that criminal force was employed, the appellant could have been prosecuted for the obstruction offences listed in section 26(1)(h). From the material found, it was clear that the appellant had indeed used criminal force, establishing liability under both section 26(1)(h) of the Act and section 353 of the Indian Penal Code. The prosecution retained discretion to charge the appellant with either one of those offences or with both, and it elected to proceed only under section 353 to avoid the need for the Commissioner’s sanction. Nonetheless, the Court held that this choice did not constitute an act unwarranted by law, because section 353 prescribes a more serious punishment than section 26(1)(h). A conviction under section 353 may attract imprisonment of up to two years or an unlimited fine, whereas a conviction under section 26(1)(h) is limited to six months’ imprisonment or a fine not exceeding one thousand rupees. Therefore, selecting the gravier general‑law offence does not make the prosecution’s conduct colourable, especially since section 26(1)(h) addresses only a narrow category of obstruction. If the Court were to deem the prosecution colourable for not limiting the charge to the lesser offence, serious offences could escape punishment, contrary to the legislature’s intent when enacting section 26. The Court concluded that it made little difference whether the prosecution pursued the more serious offence while ignoring the comparatively minor one, and that such a decision was lawful. Counsel for the appellant, Mr. Sarjoo Prasad, had relied upon an unreported decision to support his argument. Consequently, the argument that the prosecution was colourable was rejected and the charge under section 353 was upheld as valid.

In the present case, the Court examined an earlier decision of the Patna High Court that had been cited in support of the appellant’s argument. The cited case was Sonelal Seth v. State, reported as (1). The issue before the Patna High Court was whether the conduct proved in that case fell within the scope of section 353 of the Indian Penal Code. Justice Das, who decided that case, held that the conduct did not attract section 353. The reasoning given by Justice Das was that the definition of “criminal force” contained in section 353 refers to the use of force on a person or against a person, and not to the use of force on an inanimate object. He further explained that, although force applied to an inanimate object may sometimes result in force being applied to a person, the statute’s illustrations to section 350 of the Indian Penal Code make that point clear. In the facts before him, Justice Das observed that no force appeared to have been used against the Inspector of Sales Tax, and he expressed doubt that the circumstances could be described as the use of criminal force on the Inspector. He concluded that it would be “over‑taxing ingenuity” to fit the petitioner’s act within the mischief of criminal force as defined in section 350. Justice Das also remarked that a more straightforward course would have been to prosecute the accused under section 26 of the Sales Tax Act.

The present Court, however, noted that the Patna High Court judge had omitted to consider certain words of the statute that speak of “change of motion or cessation of motion to that other…”. The Court observed that, had the judge taken those words into account, he would undoubtedly have examined the effect of snatching the books from the officer’s hands. In view of this omission, the Court found it difficult to agree with the Patna High Court’s conclusion. The Court further rejected the implication in the earlier judgment that whenever the facts disclose an offence under section 26 of the Bihar Sales Tax Act, the provisions of that section must be preferred to the general law even if the same conduct also constitutes an offence under the general law. Consequently, the Court was unable to accept the view expressed by the Patna High Court judge. On that basis, the Court dismissed the present appeal.

The Court also heard Criminal Appeal No. 35 of 1961 together with the present appeal and held that the same reasoning would govern the decision in that appeal as well. The facts of Criminal Appeal No. 35 were largely similar, differing only in that the account book seized from the Assistant Superintendent of Commercial Taxes was torn during the seizure, leaving part of the book in the officer’s possession and the remaining part in the dealer’s hands. Apart from this minor difference, the factual matrix and the points raised before the Court were identical, leading the Court to dismiss that appeal for the same reasons.

The Court indicated that it had already set out the reasons for its decision in the preceding portion of this judgment. Relying on those earlier reasons, the Court concluded that the appeal could not be allowed to proceed. Accordingly, the Court ordered that the appeal be dismissed. In the same manner, the Court affirmed that the dismissal applied to the appeal as a whole, without any further qualification. The judgment therefore reflects the Court’s determination, based on the reasons previously articulated, that the appeal must be rejected. As a result, the appeal was dismissed, and the order of dismissal stands as the final disposition of the matter.