Jioo Mian and Others vs Emperor

Varma, J.—Originally there were nine petitioners who moved this Court but the application of three of them was rejected at the time of admission. The remaining petitioners, in whose favour the rule was issued, were convicted u/s 147, I.P.C. and sentenced by the lower Appellate Court to six months'' rigorous imprisonment. There were charges under Sections 353 and 225, I.P.C. against all the accused, and although no sentence was passed under any of these sections, the learned Sessions Judge on appeal set aside their conviction under these two sections.

The case for the prosecution was that the Sub-Inspector of Nasriganj thana went to Barnadihri the village of the accused Manrakhan, on 16th October 1936, in connexion with a police case u/s 148, I.P.C. against Manrakhan and with him went a constable named Nathuni Khan. Nathuni Khan was given a command certificate to arrest Manrakhan Mian. The constable Nathuni Khan went with a number of dafadars and chaukidars to arrest Manrakhan and when he reached near the Baithak of Manrakhan he saw a man moving away. Nathuni Khan enquired who the man was and when the man gave his name as Manarkhan the constable asked him to go to the Sub-Inspector. Manrakhan tried to escape but Nathuni caught hold of him. Thereupon Manrakhan raised a cry upon which the other accused rushed to the place variously armed and rescued Manrakhan. Two of them, whose petition has already been refused, are said to have assaulted with lathis, and the rest took part in the scuffle which took place in rescuing Manrakhan from the constable. The defence advanced was a denial of the whole occurrence and they came out with a counter version, which has not been accepted by the Courts below, that the constable and his party wanted to enter the zanana of Manrakhan and that they beat the tiles and thatch of his house.

Now, so far as the occurrence is concerned, there can be no doubt on the evidence that the occurrence took place as alleged by the prosecution. In revision it has been urged before us that the arrest of Manrakhan was illegal because the provisions of Section 56, Criminal P.C., were not complied with inasmuch as the substance of the command certificate was not given out to the accused before they were arrested.

This line of argument was advanced before the lower Appellate Court also and it seems that the lower Appellate Court was impressed by the argument and accepted it with the result that it set aside the conviction under Sections 353 and 225, I.P.C. The lower Appellate Court relied on the decision in Kartik Chandra Maity v. The King-Emperor A.I.R.1932. Pat 171. That was a case in which a warrant was given to the constable to be executed, and it was held by one of the Judges constituting the Bench that that warrant was illegal and therefore the constable could not rely on his powers u/s 54 to make the arrest.

There reference was made to the provisions of Section 54(1), Criminal P.C., and one of the learned Judges held that as the constable was acting under the warrant, and as the question of the powers given u/s 54(1) was not gone into by the lower Courts, the case relied upon on behalf of the Crown, i.e. the case in Kishun Mandar v. Emperor A.I.R.1926. Pat 424 was distinguishable.

We find no mention of Clause (9) of Section 54, Criminal P.C., in that judgment. Clause (9) of Sub-section 1, runs as follows:

Any police officer may, without an order from a Magistrate and without a warrant, arrest any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made, and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

In the present case the facts are very similar to the case reported in Kishun Mandar v. Emperor (A.I.R.1926. Pat 424, where it was held that the issue of a written order u/s 56 does not limit the power conferred by Section 54. I may mention that that decision has been relied upon in the Bombay High Court in Emperor v. Keshavlal Harilal A.I.R.1937. Bom 56.

In my opinion the lower Appellate Court was not justified in holding that the arrest of Manrakhan was illegal. The lower Appellate Court, even after holding that the arrest of Manrakhan was illegal, came to the conclusion that the conviction of the petitioners u/s 147, I.P.C., was correct inasmuch as the other common object mentioned in the charge did not fail, and all that the lower Appellate Court did was to reduce the sentence of the present petitioners. This was the only law point urged and as it has failed, I am of opinion that there is nothing illegal in the conviction of the present petitioners u/s 147, I.P.C. The next question is the question of sentence.

The present petitioners are not said to have assaulted the constable, but it cannot be doubted that they were members of an unlawful assembly. Most of the petitioners before us are members of the same family, and three of them are sons of Manrakhan whose petition has already been rejected.

As they did not take a very prominent part in the assault on the constable, I think the ends of justice will be served, if the sentence on the petitioners now before us, other than Zahoor Mian, is reduced to three months'' rigorous imprisonment in each case.

Petitioner Zahoor Mian is a boy of 17 and in his case I would reduce the sentence to the Period already undergone.

Madan, J.

I agree.