Jogendra Nath Mukerjee, and four others vs Queen Empress

This case comes before us on a reference by the Sessions Judge of Hooghly u/s 438 of Cr.P.C., and we have beard the learned vakil who appeared in support of the reference. It appears that one Upendra Nath Bhattacharji, preferred a complaint of criminal breach of trust u/s 406, Indian Penal Code, against certain persons and this complaint was referred to the Police for enquiry by the Magistrate of Howrah. One of the witnesses whom the complainant wished to be examined by the Police in support of this charge was a lady named Manomohini Davi; and the Sub-Inspector of Police, who was holding the investigation, by an order in writing, required her to attend before him for the purpose of being examined as a witness in the case. She however failed to attend in accordance with his order, and accordingly the Sub-Inspector reported the matter to the District Magistrate, who immediately issued a warrant for her arrest and production before the Sub-Inspector in order that she might be examined by him as a witness. The Sub-Inspector, a head constable and some constables armed with the warrant, proceeded to the lady''s residence to execute it, and there having laid hands on one Aghoremony, instead of on a Manomohini, they were obstructed, and one or other of them was assaulted by certain persons. These persons, five in number, were accordingly prosecuted for committing offences under sections 143 and 186, Indian Penal Code, were convicted by the Deputy Magistrate of Howrah of such offences, and sentenced each to pay a fine of Rs. 30 or in default to undergo one month''s rigorous imprisonment. The learned Sessions Judge is of opinion that the District Magistrate had no authority in law to issue a warrant of arrest against Manomohini for her production as a witness before the investigating Police officer, and that therefore the conviction of the 5 accused persons under sections 143 and 186, Indian Penal Code, is bad in law; and in support of the view he has referred to the case. In the petition of Rakhmaji ILR 9 Bom. 558 Queen Empress v. Tulsi Earn ILR 13 Bom. 168 and Lilla Singh v. Queen Empress ILR 22 Cal 286 and the learned vakil has drawn our attention to another case in point reported in Cal. W. Notes, vol. I, p. 47, In the matter of Baroda Kant Pramanick 1 C.W.N. 74. We have considered the terms of the reference, the explanation of the District Magistrate, the authorities cited and the arguments advanced by the learned vakil in support of the reference, and we are of opinion that the Judge has taken a correct view of the law in this case. We are unable to find any provision in the Cr. P. Code authorizing the issue of such a warrant of arrest as the District Magistrate issued in this case. Reading sections 76 and 81 of the Code together, it would appear that a Magistrate is only competent to issue a warrant of arrest for production of a person before his own Court and not before a Police officer. No doubt, as the District Magistrate points out, Sec. 90 of the Cr.P.C. empowers him to issue a warrant in any case in which he is competent to issue a summons, but, we observe that the Code makes no provisions for the issue of a summons by a Magistrate, requiring a person to appear before a Police-officer. The investigation in the present case was being made by the Police under Chapter XIV of Cr.P.C., and accordingly the Sub-Inspector was empowered under sec. 160 by an order in writing to require the attendance of Manomohini before him, and on her failure to comply with the order, she might have been prosecuted for disobedience under sec. 174, I.P.C.; but we think that no warrant of arrest could under such circumstances be lawfully issued against her. We are also of opinion that inasmuch as the issue of the warrant was illegal, the conviction under sections 143 and 186, I.P. Code, cannot be sustained, and the authorities above cited support this view. The District Magistrate relies on sec. 99, I.P.C., but we think, that this section has no application to a case like the present in which the Police-officers were acting under a warrant, the issue of which was altogether illegal. For the above reasons we set aside the conviction and sentences and direct that the fines, if realized, be refunded.