Chepa Mahton and Others vs Emperor

Wort, J.—The petitioners in this case were prosecuted and convicted u/s 225-B and 353, I.P.C., for having rescued a person from the lawful custody of the constable who had taken that person into his custody under a warrant issued u/s 100, Criminal P.C.

It appears in the first place that the petitioner Chepa Mahto was prosecuted u/s 499, I.P.C.; but for the offence alleged against him under that section he was acquitted. During the course of those proceedings the complainant alleged that his wife was being unlawfully detained in the house of Chepa Mahto and in consequence the Magistrate issued a search warrant u/s 100, Criminal P.C., and as a result of that search, as I have already indicated, a person was taken into custody and while being brought before a Magistrate that person was rescued by the petitioners.

A lengthy argument has been addressed to me, chiefly based upon the allegation that the warrant in the circumstances, was illegal.

The first point taken was that in order to enable the Magistrate to issue a warrant u/s 100 he has to be in the belief that a person has been detained in such circumstances as to make that detention an offence; and the argument which is advanced is that as the Magistrate acted merely upon the petition of the complainant, he cannot be said to have been in the position to believe that person has been detained in circumstances which created an offence. I, however, cannot accept that argument. Otherwise, in my judgment, it would necessitate almost in every that case the Magistrate would have to try out a case before he could determine the question whether it was a bona fide application that was being made to him. The only question is whether the Magistrate was of the belief that a person had been detained and he may be of that belief by reason of the petition itself or for any other reason which may be brought before him. In any event I cannot hold that the point taken can be sustained.

Now, what happened in this case was that the search warrant was issued to a police officer in charge of the Bara Bazar police station and was endorsed to a constable for execution, which of course the police officer in charge was entitled to do under the law. Eventually that police officer searched the house of Chepa Mahton and did not find the woman for whom he was searching. A second attempt was made and the woman in question was found not in the house of Chepa Mahto huti was found in a field planting chillies. The warrant was directed to the police officer in charge of the Bara Bazar police station and entitles the holder of the warrant to search the woman Sajani Mahtani in the house of Chepa Mahto. As I have stated she was not found in that house but was found in a field. The point taken on this state of the case is as follows: that if the arrest or detention of Sajani Mahtani was not in accordance with the search warrant, then her detention could not be lawful within the meaning of Section 225-B and consequently any rescue by the petitioner could not in itself be illegal or unlawful; and, in those circumstances, the petitioners would not be guilty of any offence under the Indian Penal Code. There is no doubt that, if the detention of Sajani Mahtani was unlawful or unwarranted by the search warrant, then the argument of the learned advocate for the petitioners must be held to be well founded. In my judgment it necessarily follows that it cannot be said that a person is rescued from unlawful detention if that detention is not lawful. I think this much may be said, that it was unnecessary for the Magistrate to state that the officer holding the warrant was to search the house of a certain person. I do not decide the point; but it seems to me that it would not have been illegal for the Magistrate to have issued a warrant u/s 100 under which section this warrant was issued without confining it to any particular place. But the Magistrate has in fact confined it to the house of Chepa Mahton. Section 100 of the Code, under which the warrant was issued, states amongst other things:

and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate.

It is unnecessary to state at this stage that the Criminal Procedure Code and the Indian Penal must be construed strictly, and when Section 105 says:

search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate,

it follows as a result of the search in accordance with the warrant. The simple way of testing the point, which was argued before me, is: Would such a warrant as this entitle a constable to take into his custody a person for whom he was searching and ordered to search in a particular house if that person were found walking in the street apparently as a free agent? In my judgment that could not be said so be so. An officer would not be justified, in my view of the law, in taking a person into his custody in circumstances such as those. The very section, under which the warrant was issued, contemplates an unlawful detention, the person so detained being taken out of that unlawful detention by reason of a search warrant. It is true that it is not for the constable to decide whether the person was unlawfully detained. But nevertheless, in my judgment, he must confine his activities to what the warrant provides. In this case the officer who endorsed the warrant on to, another states that the officer to whom he endorsed it may execute the warrant if the person is confined outside. What justification he had for that I fail to see. It purports, in any event, to alter the warrant as issued by the Magistrate. In my judgment, without discussing any other question in the case, I think that this was not strictly within the provisions of the section under which this was issued. There are other matters on the merits, which I might have discussed; but the point which I have determined seems to me sufficient to decide that the conviction under these sections cannot stand and must be set aside as the petitioner did not rescue a person from lawful custody within the meaning of Section 225-B, I.P.C.