Kartick Chandra Maity and Others vs Emperor

Courtney-Terrell, C.J.—The case was argued before the Chief Justice owing to a difference between the learned Judges who decided Kartik Chandra Maity Vs. Emperor, --Ed. The facts material to the decision of the only point before me are very simple. The Subdivisional Officer of Jamshedpur received information of an alleged offence of theft and took cognizance of the offence and directed the issue of a warrant for the arrest of the two persons against whom the complaint was made.

After directing the issue of the warrant the Subdivisional Officer went away from the station on duty and the warrant was ultimately signed during his absence by Mr. K.C. Chatterji, First Class Magistrate, who had been invested by the Government with powers under Sections 190(a) and (b), 143, 144 and 192, Criminal P.C. The constable who went to execute the warrant was resisted by the two persons with whose arrest he was charged and by other persons who together with those two are the applicants for revision, and he was assaulted. The applicants for revision have been convicted of assault and with respect to the conviction for assault no point arises.

The only point taken by the applicants in so far as the matter comes before me is their conviction for unlawful resistance to a police officer in the execution of his duty. The question raised on behalf of the applicants is as to the legality of the warrant which had been, signed by Mr. Chatterji. My attention has been directed to Section 75, Criminal P.C., which provides that every warrant of arrest issued by a Court under the Code must be in writing and must be "signed by the presiding Officer." Now Section 204, Criminal P.C., which provides for the issue of warrants makes it quite clear that only the Magistrate who takes cognizance of an offence may direct the issue of a warrant. Having directed the issue of a warrant before the warrant can be executed it must bear the seal of the Court and also it must be signed. It is conceded that although only the Magistrate who has taken cognizance of the offence may direct the issue of a warrant yet nevertheless the Magistrate who signs the warrant provided he comes within the term "presiding officer" may sign the warrant although he may not have been the particular individual who has taken cognizance of the offence, for example, if a Subdivisional Officer receives a complaint and directs the issue of a warrant, but is transferred to another district before he can sign the warrant, it is conceded that the warrant may be signed by his successor who it is said is in fact the presiding officer, and with this contention I agree.

It follows therefore that the presiding officer who alone can sign the warrant is not necessarily the officer who has taken cognizance of the offence. He must therefore be the officer who presides in the Court at the time when the warrant comes to be signed and not necessarily the Magistrate who has presided in the Court at the time when cognizance was taken of the offence. In this particular case Mr. Chatterji was appointed by the Government with power to take cognizance of offences and indeed to perform the functions of the Subdivisional Officer while he was away from the station and in those circumstances it seems to me that he is the presiding officer within Section 75 and could properly sign the warrant the issue of which had been directed by the person whose place he was for the time being filling.

My attention has been called to Jagpat Koeri v. Emperor [1917] 2 Pat. L.J. 487 which was decided by Chamier, C.J. But the facts in that case differ materially from the facts in this. There the Subdivisional Officer took cognizance of the case and directed the issue of the warrant, but the Magistrate who actually signed the warrant was in no sense the presiding officer u/s 75. He was merely an Honorary Magistrate and he does not appear to have been vested with any powers either for taking cognizance of offences or indeed any other powers which would bring him within the meaning of the words "presiding officer." There is a passage in the report of Sir Edward Chamier''s judgment which may have given rise to a little misunderstanding. In stating the facts the learned Chief Justice said:

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 ease (the "presiding officer" within the meaning of Section 75, Criminal P.C.,), but by an Honorary Magistrate who lived in the same town.

It would seem, on reading these words, that it might be possible to construe the learned Chief Justice as implying that only one who has taken cognizance of the case can be termed a "presiding officer" within the meaning of the section; but it is clear that that cannot be the meaning of the Chief Justice because it is conceded that if a Subdivisional Officer has taken cognizance of a case and directed issue of a warrant the warrant may be signed by the successor of that Subdivisional Officer who ex hypothesi has not taken cognizance of the case.

In my opinion the warrant was legal and accordingly the resistance to the arrest was unlawful and the accused persons were properly convicted. The application is accordingly rejected.