Bishundayal Mahton and Others vs Emperor

Varma, J.—Criminal Revision No. 38 of 1943 is on behalf of 25 persons, and Cri. Revn. No. 77 is on behalf of two persons, namely, Mangal Mahto and Rajendca Upadhya. As both the petitions arise out of the same judgment, they have been heard together. All the petitioners have been convicted u/s 147, Penal Code, and sentenced each to six months rigorous imprisonment with a fine of Rs. 50 in default six weeks further rigorous imprisonment. All of them have been convicted under Sections 332/149 and sentenced to nine months rigorous imprisonment. Two of them Damar Mahton and Kishun Mahto have further been convicted u/s 332, Penal Code, and sen-tenced to one year''s rigorous imprisonment. Baldeo Singh, Harihar Mahto, Hari Kishun Mahton, Sukhdeo Mahto and Rajendra Upadhya have also been convicted u/s 342, Penal Code, and have been awarded six months'' rigorous imprisonment each. The substantive sentences of imprisonment are to run concurrently. The prosecution case has been very well summarised by the lower appellate Court and is a follows:

A dacoity had been committed within the jurisdiction of Bakhtiarpur Thana, which lies within the jurisdiction of the Sub-Divisional Officer of Barh. Some of the suspects had made confessional statements in which they implicated several persons, including Dukhi Mahto of village Kistipur, police station Chandi, within the Bihar sub-division. As several of the persons named in the confessional statements were not forthcoming, the police officer submitted a report to the Sub-Divisional Officer of Barh on 13th January 1942, praying for the issue of warrants of arrest and processes under Sections 87 and 88, Criminal P.C., against them, including people residing within the jurisdiction of Chandi police station. On 24th January 1942, the learned Sub-Divisional Officer of Barh passed an order directing the issue of warrants of arrests and processes under Sections 87 and 88, Criminal P.C., and fixed 7th February 1942, and 24th April 1942, as the returnable dates of the two processes, respectively. These processes were duly forwarded to the Sub-Divisional Officer of Bihar for service by police officer-in-charge of the several police stations lying within his jurisdiction, including Chandi police station.

On 23rd February 1942, the Sub-Inspector of Chandi Police Station proceeded to village Kistipur on a khatoli for serving these processes. He arrived at village Kistipur at 3 P.M. with one constable, one dafadar and, some chaukidars and made a search for Dukhi Mahto, who was not found. He then proceeded to attach the live-stock of Dukhi Mahto in the cowshed which was outside. Then he entered into the zenana apartments of Dukhi Mahto and attached his utensils, saris and two wooden boxes. An old woman, said to be the aunt of Dukhi Mahto, was in the house. The attachment was effected in the presence of two witnesses, Rajendra Upadhya and Sukhdeo Mahto (who are petitioners before us). The signatures of these witnesses were taken on the search-list. The attached articles were then brought outside the house and kept in charge of the dafadar.

When the Sub-Inspector was arranging for, the removal of the articles, one Baldeo Singh who was known as Babaji, turned up and remonstrated demanding release of the attached properties. The Sub-Inspector Baidya Nath Prasad Rai declined to release the properties until Dukhi Mahto surrendered. Then a mob of about 100 persons armed with lathis, bhalas and gransas emerged out of the bye-lanes and confronted the Sub-Inspector. Apprehending an attack, the Sub-Inspector tried to bring out his revolver, when Harihar Mahton ordered Kishun Mahton to strike. The Sub-Inspector was then given a lathi blow on the right arm on which the revolver dropped from his hand. He was further assaulted with lathis and brickbats on which he fell down and momentarily lost consciousness. The mob chased away the constable, dafadar and the chaukidars. The Sub-Inspector was then relieved of his uniform and of all his articles including the revolver, fountainpen and the official papers that he had with him. He was then dragged inside the house of Dukhi Mahton and was confined in a dark and dingy room. The villagers guarded the house for about an hour, and the old woman, who is said to be the aunt of Dukhi Mahton, washed the underwear of the Sub-Inspector as it was soaked with blood. All the villagers then left the place.

In the meantime, two chaukidars went and informed the Assistant Sub-Inspector about this occurrence at the police station. He came to the place with all available force and proceeded to village Gilanichak, a neighbouring village, the zamindar whereof had a gun who supplied him with some men to accompany him to Kistipore. When they reached Kistipur they found the village deserted. They rescued the Sub-Inspector from the house of Dukhi Mahto, and next day police reinforcements arrived. Charges were framed against the petitioners on these facts under the Sections under which they have been convicted, and also u/s 379, Penal Code, which, however, failed in the trial Court.

The petitioners pleaded not guilty to the charges against them. They alleged that the warrant of arrest and the processes of proclamation and attachment were illegal and could not be executed, that there were two Dukhi Mahtons in the village, one being the son of Prem Narain Mahton and the other being the son of Chhotu Mahton, that in the absence of the parentage of Dukhi Mahton in the warrant of arrest and in the other processes the police officer was not justified in executing those invalid processes, that Dukhi Mahton, as a matter of fact, was pre-sent in the village and had come up when the attachment was being made but was pushed out, that the properties were the joint properties of Dukhi Mahton and his coparceners. It was further alleged that the Sub-Inspector was not in his uniform, and he arrived at candle light and entered the zenana house without any warning where there were women and children, who out of fear ran upstairs when the Sub-Inspector effected the attachment of the articles including the boxes, in one of which there were jewellery which were all missing, that Dukhi Mahto being a rich man, possibly, resisted the action of the Sub-Inspector through his servants and the Sub-Inspector out of fear ran inside the house and concealed himself in a dark room to save himself, and the old woman present inside gave him shelter and water to drink, that when there was a hulla of "bhago! bhago!" they left the place and as the Sub-Inspector had entered the room in which he was found, without telling anybody and without being noticed by anybody, the room was locked from outside. There was also a suggestion that the petitioners were implicated at the instance of the malik of Gilanichak with whom they were on bad terms, that no search-list was prepared, and that Rajendra Upadhya and Sukhdeo Mahton never signed any such list.

The lower appellate Court formulated the following four points for determination: (1) Whether the accused were members of the unlawful assembly with the common object of deterring the Sub-Inspector from discharging his duties and of rescuing the properties attached by him; (2) whether they caused hurt to the Sub-Inspector Baidyanath Prasad Roy; (3) whether Damar Mahton and Kishun Mahton caused hurt to the Sub-Inspector; and (4) whether Harihar Mahton, Harikishun, Rajendra Upadhya, Sukhdeo Mahton and Baldeo Singh wrongfully confined the Sub-Inspector Baidyanath Prasad Roy in the house of Dukhi Mahton. The learned Additional Sessions Judge has held against the petitioners on all these points.

Before dealing with the points raised on behalf of the petitioners, I should like to mention that no copy of the proclamation under Sections 87 and 88, Criminal P.C., nor of the search-list prepared by the Sub-Inspector has been filed in this ease, on the allegation that all those were taken away by the rioters. This may be so in connexion with the papers that were in the possession of the Sub-Inspector, but it does not explain the non-production of the proclamation which was made in Court. So far as the charges under Sections 147 and 332/149, Penal Code, are concerned, the chief point that has to be considered is whether the common object mentioned in the charge has been made out. The charge framed u/s 147 runs as follows:

That you on or about the 23rd day of February 1942 at village Kistipur, police station Chandi, were members of an unlawful assembly, and, in the prosecution of the common object of such assembly, viz., in deterring a public servant, Police Sub-Inspector, B. Boy, from discharging his duties as such public servant and in order to rescue property attached u/s 87, Criminal P.C., committed the offence of rioting and thereby committed an offence punishable u/s 147, Penal Code, and within my cognizance.

The charge under Sections 332/149, Penal Code, runs as follows:

That you on or about the 23rd day of February 1942 at village Kistipur, police station Chandi, were members of an unlawful assembly, and, in prosecution of the common object of the assembly, viz., in deterring a public servant Sub-Inspector, B.P. Roy, from discharging his duties as such public servant and in order to rescue property attachad u/s 87, Criminal P.C., two of the members, viz., Damar Mahto and Kishun Mahto caused hurt to Sub-Inspector, B.P. Roy, and constable Rajnarain Singh was also hurt, and you are thereby u/s 149, Penal Code, guilty of causing the said hurt, an offence punishable u/s 332, Penal Code, and thereby committed an offence punishable under Sections 332/149, Penal Code, and within my cognizance.

One of the points urged is that the processes issued: under Sections 87 and 88, Criminal P.C., were invalid inasmuch as the parent, age of Dukhi Mahto was lacking. The prayer for processes was made in Ex. 11, and in that report Dukhi Mahto of Kishtipur, police station Chandi is mentioned. To that extent the processes were defective, as found by the lower appellate Court. The learned Judge has held that although there were two Dukhi Mahtons, the one mentioned in the processes could not but be the Dukhi who is a petitioner before us and who happens to be a son of Prem Narain Mahto, the other Dukhi Mahto son of Chhotan Mahton, also known as Lalit Mahton, is not a regular resident of village Kishtipur. Mr. Manuk, on behalf of the petitioners, has drawn our attention to the case in Alter Caufman v. Government of Bombay 18 Bom. 636, where one of the reasons given for holding that the warrants were not valid was that the persons named in them were not indicated with sufficient certainty and particularity, and the warrants contained no description of the persons against whom they purported to be directed, and did not give their place of residence, and in such circumstances it was held that the warrants were not valid. The same view was taken in Debi Singh v. Queen-Empress 28 Cal. 399. One of the grounds in that case was that the warrant of arrest, which the petitioner was alleged to have disobeyed, was not a valid warrant in law. It was found that the warrant was made out against Debi Singh son of Gunraj Singh; but, in the course of the trial it was found that his father''s name was different. Their Lord, ships in those circumstances held, that

in order to have a conviction for illegal disobedience of the warrant it was for the prosecution to show that the accused was the person against whom the warrant had issued or in other words, that he was the son of Gunraj Singh and not of Rang Lall Singh, as he alleged. It was not for the accused to show that he was not the person against whom the warrant was issued. The onus lay on the prosecution to prove the affirmative, not on the accused to prove the negative.

But on the finding arrived at by the lower appellate Court, these decisions do not seem to help the petitioners in this case. Another line of argument advanced by the learned advocate for the petitioners is that in view of the common object set out in the charge if the Sub-Inspector was trying to seize properties, lie had to justify the seizure. In order to understand the full bearing of this line of argument, we have to go back to the report that was submitted by the Sub-Inspector on 15th January 1942 (Ex. 11). It appears that there was a dacoity within the jurisdiction of the Bakhtiarpur police station. Some time before Ex. 11 was submitted, the police submitted a final report, but later on, as the result of confessional statements of several persons, the case was re-opened, and the prayer was made in the following terms:

I beg to report that the following persons are wanted in the marginally noted oases for the T.I. (which evidently means test identification) as the cases have been re-opened now on the basis of the confessions of XY. These persons have been evading to appear (before) police. I, therefore pray that w.a. (warrants of arrests) and processes under Sections 87 and 88, Criminal P.C., may be issued against them to S.I.S. concerned.

From this it is clear that till then the Magistrate had not taken cognizance of the case and these people were wanted just to enable the police to hold a test identification. In this very report the prayer is for a warrant of arrest and also processes under Sections 87 and 88, Criminal P.C. Section 87 runs as follows:

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. (2) The proclamation shall be published as follows: (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, and (c) a copy thereof shall be affixed to some conspicuous part of the Court-house.

Sub-section (3) of Section 87 is not relevant here. Section 88, Criminal P.C., runs as follows:

(1) The Court issuing a proclamation u/s 87 may at any time order the attachment of any property, moveable or immovable, or both, belonging to the proclaimed person.

* * * (6B) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.

Looking at these two sections, it is clear that first of all there should be a warrant which could not be served because the person against whom it was issued had absconded, then there could be a proclamation, and after the proclamation comes the attachment. An argument has been advanced that processes u/s 88 could not be issued unless processes u/s 87 had been issued first. But that line of argument in view of Sub-section (6B) to Section 88 cannot be sustained. The form of the warrant u/s 88 contains the expression,

and thereupon a proclamation has been or is being duly issued and published requiring the said to appear and give evidence at the time and place mentioned therein.

It appears from this that it is not necessary that processes u/s 88 should be delayed till the time fixed in the process u/s 87 has elapsed. But the fact remains that processes under Sections 87 and 88 cannot be issued unless it is established that a warrant had already been issued against the person wanted and that person was absconding. In the present case it appears from the report Ex. 11 and the materials on the record that there was no such warrant issued before the prayer was made under Sections 87 and 88. In this view of the matter the processes that were issued in this case were without jurisdiction. Reference has been made to various cases on this subject, e.g., Queen-Empress v. Tulsiram 13 Bom. 168, Emperor v. Kadarbhai Usufalli AIR 1927 Bom. 483, Jairam Sahu v. Emperor AIR 1923 Pat. 338, Moinuddin v. Emperor AIR 1921 Pat. 415, Pasuvathia Pillai v. Emperor AIR 1928 Mad. 624 and Jograj Mahto v. Emperor .

As against these, there is a AIR 1940 Pat. 696decision of the Allahabad High Court in Shib Charan and Others Vs. Emperor, . In that case, it was held that where there is no illegality on the face of warrant and it is on the face of it a legal warrant executed by a person who has authority to issue warrants of that nature, it is the duty of the officer executing the warrant to do so and, in so doing he acts in the execution of his duty as a public servant within the meaning of Section 353, Penal Code. It is not for him to demand that he shall not be bound to execute a warrant unless he is satisfied that the Court which issued the warrant was acting properly within its jurisdiction and had a legal right in the circumstances to issue the warrant. A conviction u/s 353 cannot therefore be invalidated on any such ground. According to illust. (e) of Section 114, Evidence Act, which empowers the Court to presume that judicial and official acts have been regularly performed, the Court may presume that a warrant issued u/s 88, Criminal P.C., was issued after a proclamation had already been issued u/s 87, so that the issue of the warrant was regular. The fact found in the case was that a Sub-Inspector and some constables went to attach property in pursuance of a warrant drawn up under the provisions of Section 88, Criminal P.C., and the accused persons had attacked them in order to prevent attachment.

On this finding, the decision was arrived at. It is clear that in that case it was presumed that a warrant was issued u/s 87. The present case is distinguishable from that case on the ground that in the Allahabad case there was no lack of jurisdiction in issuing the warrant. This point has been clarified in the decision in Moinuddin v. Emperor AIR 1921 Pat. 415, where it was observed that if the order of 2 the Magistrate was ultra vires, it was clear that the police constables deputed and the police officers did not derive any lawful authority from this order to allow the first party to cut and remove the crop from the land.

In this view of the matter, I am of opinion that the processes under Sections 87 and 88 were ultra vires. That being so, the convictions and sentences of the petitioners u/s 147 and 332/149, Penal Code, must, be set aside.

Then we are left with the case of individual accused who have been convicted under specific charges. Sukhdeo Mahto and Rajendra Upadhya have been convicted u/s 342, Penal Code. These are the search witnesses. Their presence at the place originally was for a legitimate purpose, and it ought to have been shown that they were heard to say or seen to do something which showed that they identified themselves with or assisted the men who actually shut the Sub-Inspector up in the room. The Sub-Inspector did not, however, say any% thing like this. All that he said was that these two men were still there when he recovered after the assault and before he was shut in the room. That was not inconsistent with their being involuntary spectators of the occurrence. One of them at least had no apparent motive for taking part in it. Both men are, in my opinion, entitled to the benefit of the doubt. With regard to the convictions of Baldeo Singh, Harihar Mahto and Harekishun Mahto u/s 342, those must be maintained, as also the sentences passed on them under that section.

Dumar Mahto and Kishun Mahto have been convicted u/s 332. But as I have held that the processes were ultra vires, their convictions will be altered into one u/s 323, Penal Code, but the sentences will remain as u/s 332, namely, rigorous imprisonment for one year each. In the result the order of the Court below is modified. The convictions and sentences passed upon the petitioners under Sections 147 and 332/149, Penal Code, are set aside; the convictions of petitioners Baldeo Singh, Harihar Mahto and Harekishun Mahto will be maintained u/s 342, Penal Code as also the sentences thereunder; and the convictions of Damar Mahto and Kishun Mahto are altered from one u/s 332 to one u/s 323, Penal Code, but the sentence of one year''s rigorous imprisonment on each of them ia maintained. Accordingly, petitioners other than Baldeo Singh, Harihar Mahton, Harekishun Mahto, Damar Mahto and Kishun Mahto, will be acquitted and set at liberty forthwith.

Shearer, J.

I agree.