Bansidhar Modi vs Emperor

Agarwala, J.—Nagarmal Modi was convicted u/s 145, Penal Code, and Section 7(2), Criminal Law Amendment Act, and sentenced to two years'' rigorous imprisonment and to pay a fine of Rupees 1,000. The fine not having been paid a warrant for the attachment of Nagarmal's movables was issued u/s 386, Criminal P.C. Nagarmal's brother, Bansidhar Modi paid the fine on 26th July 1932. On 5th December 1932, he applied for refund of the amount paid alleging that the officer deputed to attach the movable property of the convict had attached property belonging to the joint family of which Nagarmal and Bansidhar are alleged to be members. It was further alleged that the petitioner Bansidhar had paid the fine under protest, on the assurance of the police officer executing the warrant that his protest would be reported to the proper authorities and their decision duly communicated to him.

The learned Magistrate rejected this application on the ground that the police had reported that no attachment of the petitioner's property had been made and the fine had been paid by the petitioner without protest. Against that order the petitioner moved the learned Judicial Commissioner of Chota Nagpur who rejected the petition.

It appears that the petitioner was not given an opportunity to substantiate his allegations that the fine was paid under protest and that the officer executing the warrant had undertaken to communicate his protest to the proper authorities. Furthermore, the learned Magistrate has acted solely on the report of the police that there was no protest.

The report of the police is not by itself sufficient as it is not evidence. The Chief Justice of the Lahore High Court in Parshotam Das v. Emperor AIR 1931 Lah 543 set aside a similar order where the Magistrate did not himself make an inquiry regarding the objection to an attachment, but acted on the report of a Naib Tahsildar. As was pointed out by the learned Chief Justice in that case, this procedure is wholly unwarranted and it was the duty of the Magistrate himself to record the evidence of the parties and to come to a decision on the evidence.

The order complained against is therefore set aside and the case will now go back to the Magistrate for determination of the question raised by the petitioner who will have an opportunity of producing evidence in support of the allegation.