Jagpat Koeri and Others vs Emperor

Edward Chamier, C.J.—The four applicants have been convicted u/s 353, Indian Penal Code, of having assaulted a constable with intent to prevent him from taking the applicant Jagpat Koeri to the thana under arrest upon a warrant issued by a Magistrate. It appears that Jagpat Koeri had been arrested by the Police on a charge u/s 143, Indian Penal Code, and had entered into a personal recognizance to appear before a Magistrate on July 24th, 1916. He failed to appear on that date and the Magistrate who took cognizance of the case ordered that warrants should be issued for his arrest and that he should be called upon to show cause why his recognisance should not be estreated. On the same day a warrant was issued for the arrest of Jagpat Koeri, but it was signed not by the Magistrate who had taken cognizance of the case (the presiding officer within the meaning of Section 75 of the Code of Criminal Procedure), but by an Honorary Magistrate who lived in the same town. On July 25th Jagpat Koeri appeared in Court and was released upon his personal recognizance but on the 26th, the constable to whom the warrant issued on the 24th had been endorsed and made over, met him and arrested him. Jagpat Koeri objected but the constable insisted on taking him to the thana. On the way to the thana with the assistance of the other applicants before us, he managed to free himself from the constable and escape to his house. A purely technical assault was committed upon the constable. In the circumstances I am of opinion that the applicants should not have been convicted. It appears to me that the warrant was invalid having been signed by an unauthorised person: see Section 75 of the Code of Criminal Procedure. Whether the warrant was valid or not Jagpat Koeri should not have been arrested, seeing that he had surrendered and had been released by the Magistrate on his personal recognizance.

I would allow these applications and set aside the conviction of the applicants. They must be released at once.

Sharfoddin, J.

I agree.