Durga Tewari and Others vs Rahman Buksh

The Petitioners in this case have been convicted under secs. 147 & 224, I. P. C., of what may be shortly described as the offence of having riotously brought about the escape of a person arrested by the police under a particular warrant. The question raised in this matter is whether the arrest is a lawful arrest. It appears that the warrant under which the arrest was made was originally directed to the Court Sub-Inspector, who endorsed it to the officer in charge of the Colgong Police-station. It then appears to have been re-endorsed by a writer constable, under what authority is not apparent, in favour of the officer in charge of the Pirpointi station. In neither instance, that is to say, neither in the endorsement to the officer in charge of the Colgoug Police-station nor in the endorsement to the officer of the Pirpointi Police-station, was any name given such as is required by sec. 79, Cr. P. C, nor is it shown under what authority the writer constable who prima facie was not the officer in charge of the Colgong station, supposing that that endorsement was a valid endorsement, could re-endorse it to somebody else. The warrant was then executed by the officer in charge of the Pirpointi station and it is with reference to the action taken by him that the occurrence out of which this trial has arisen took place. The question was raised, apparently before the Sessions Judge in appeal for the first time, whether, under secs. 224 and 147, I. P. C, as applied to the present case, the conviction was valid having regard to the manner in which the arrest was made, that is to say, whether the arrest was a legal arrest so as to make any attempt at resistance or obstruction or escape an offence punishable with in the terms of sec. 224, I. P. C. We do not agree with the Sessions Judge in the manner in which he has dealt with this case; whatever may be the practice in this district in regard to the execution of warrants of arrest through endorsements, it is quite clear that under the terms of see. 79, Cr. P. C, the endorsement should be regularly made by name to a certain person in order to authorize him to make the arrest. In this instance there was no such endorsement and therefore, the arrest was not a legal arrest so as to make the Petitioners liable for any offence in regard to it. We think it unnecessary to consider in this case the matters of assault which are connected with this particular offence. We accordingly set aside the conviction and sentences passed on the Petitioners.