Kartik Chandra Maity vs Emperor

Dhavle, J.—The petitioner Kartik Chandra Maity has been sentenced to nine month''s rigorous imprisonment and a fine of Rs. 200 u/s 234, concurrently with rigorous imprisonment for six months under Sections 342 and 147, I.P.C. each. The other four petitioners have been sentenced to concurrent terms of six months'' rigorous imprisonment under Sections 225, 342 and 147, I.P.C. All the five petitioners have also been convicted u/s 353, I.P.C., but on appeal the learned Sessions Judge, while affirming the conviction, did not consider it necessary to pass any separate sentence under this section.

It appears that Kaira Ho, a constable, was deputed from police station Baharagora in the Dhalbhum Subdivison of Singhbhum to execute a warrant of arrest against the petitioner Kartik Chandra Maity and his brother Nabo Kumar Maity, following a complaint u/s 379, I.P.C. which had been preferred before the Subdivisional Magistrate of Dhalbhum. Kartik was found outside the house, shown the warrant against him and formally arrested. He asked the constable to go with him to Nabo''s house where, he said, both the brothers would furnish bail together. On approaching Nabo''s house however the constable was assaulted by the five petitioners and tied with a rope to a post inside Nabo''s. house.

The learned advocate for the petitioners has assailed the conviction on the ground that the arrest of Kartik was not lawful. He has contended that the endorsement. on the warrant against Kartik should have been given not the name only but the designation also of Kairo Ho. Section 79, Criminal P.C., however only requires the name to be endorsed, and Form 2, Schedule 5 Civil P.C., to which reference has been made, has no bearing on endorsements kinder Section 79 and will further not have the effect of invalidating the arrest: vide Bankey Behary Singh v. Emperor [1918] 3 Pat. L.J. 493. The learned advocate has also contended that the arrest was illegal because the constable does not in his report say that he had notified the substance of the warrant of Kartik. But Section 80, Criminal P.C. does not require the fact of the notification to be mentioned in the report; and on the fact found by the lower Courts it is quite clear that the requirements of the section were substantially complied with in the present case and that Kartik had

reasonable opportunity of knowing on what charge he was being arrested and before what Court he was to appear, so that he might take steps to arrange for his defence

to quote from p. 498 of the report of Bankey Behary Singh''s case [1918] 3 Pat. L.J. 493 already cited.

A more substantial objection on behalf of the petitioners is based on the fact that the warrant is signed not by the Subdivisional Magistrate who had taken cognizance of the case u/s 379, I.P.C., but by another Magistrate Babu K.C. Chatterji, "for S.D.O. Dhalbhum." Section 75, Criminal P.C. requires that the warrant shall be signed by the presiding officer; and the learned advocate has cited the case of Jagpat Koeri v. Emperor [1917] 2 Pat. L.J. 487, in which a warrant of arrest signed not by the Magistrate who had taken cognizance of the case but by an Honorary Magistrate who lived in the same town was held invalid under the section. Prima facie the "presiding officer" of the Court of the Subdivisional Magistrate was the Subdivisional Officer himself. An inquiry has been made from the Deputy Commisioner of Singhbhum regarding Mr. Chatterji''s powers under the Code of Criminal Procedure and his authority to sign the warrant for the Subdivisional Officer of Dhalbhum. The reply received does not refer to any provisions of the Code under which Mr. Chatterji could have signed the warrant, but says that he has been vested with powers under "Sections 190 (a) and (b), 143, 144 and 192" of the Code and that he is almost invariably left in charge in the inevitable absence of the Subdivisional Officer on tour and signs "for Subdivisional Officer" if that officer has sanctioned the order previously and as Deputy Magistrate in charge if he acts on his own initiative. Mr. Chatterji did not in the present case act "on his own initiative." I do not see how the absence of the Subdivisional Officer on tour could operate to enlarge Mr. Chatterji''s powers under the Code or to confer on him the authority that the S.D.O. had u/s 204, as the Magistrate taking cognizance of the offence, to issue the warrant. It is true that the order for the. issue of the warrants was passed by the S. D. O. himself, but we have not been referred to anything in the Code which will enable a Subdivisional Magistrate to get his warrants signed by a Subordinate Magistrate.

The learned advocate for the petitioners has in this connexion drawn attention to the contrast between Sections 68 and 75 of the Code: warrants issued under the latter section "shall be...signed by the presiding officer," while summonses issued u/s 68 may be signed by the presiding Officer "or by such other officer as the High Court may, from time to time, by rule direct." The inference seems clear that the legislature did not intend to permit a delegation of the duty of signing warrants. I am not at all satisfied that the warrant signed as it was by Mr. Chatterji, was valid. Sections 224 & 225, I.P.C., deal with resistance to or escape from "lawful apprehension," and Section 353 with "assault...to deter a public servant from discharge of his duty." It thus becomes essential for the convictions under these sections that the prosecution should show that the apprehension or arrest made or attempted by Kaira Ho was lawful in every way--vide such cases as Queen-Empress v. Dalip [1896] 18 All. 246, Sampat v. Emperor [1917] Cri. L.J. 803, Durga Charan v. Queen-Empress [1900] 27 Cal. 457 and Raman Singh v. Queen-Empress [1901] 28 Cal. 411 . Mr. Agarwala for the Crown has not contested this but has endeavoured to meet it by referring to Section 54(1), Criminal P.C., which authorizes any police officer, without an order from a Magistrate and without a warrant, to arrest any person who has been concerned in any cognizable offence or against whom a reasonble complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. He has cited Kishun Mandar Vs. King-Emperor, in support, but that was not a case of an invalid warrant and the person wanted in that case was found by their Lordships to come within the terms of Section 54.

In the present case there was no reference to the section in the lower Courts, and the question of what the constable knew, believed or suspected against Kartik was not gone into. The constable did not purport to act without a warrant and the probability is that (apart from the invalid, warrant) he had no knowledge or suspicion of his own at all that Kartik was concerned in any cognizable offence. What he actually did was to endeavour to execute the warrant. In In Re: Appaswamy Mudali and Others, , it was observed that if a constable in effecting an arrest specifies a certain power which proves to be wanting, resistance to him or escape from his custody constitutes no offence. To hold that Section 54 applies in such cases without any intimation to the accused, and without any allegation by the constable in his deposition that he proceeded under the section would be to nullify several salutary provisions contained in Part B Ch. 6, Criminal P.C., relating to the execution of warrants of arrest. In Mousi Lal v. Emperor (1918)Cri.L.J. 1000, decided in this Court in 1918, Roe and Jwala Prasad, JJ, refused to accept a similar contention and observed:

But nowhere in his evidence does he (the constable) suggest that he had reason for such belief. He purports to have acted under cover of the warrant and we must take the case as stated by the complainant in it.

The case of Emperor Vs. Bhola Bhagat and Others, , which has also been referred to by Mr. Agarwala, is easily distinguishable. Mr. Agarwala has also referred to Section 23, Police Act 1861, but this section does not cover the execution of invalid warrants, nor does it extend a constable''s powers of arrest. In this view the convictions of the petitioners under Sections 224, 225 and 353, I. P.C., cannot be upheld and I would set them aside.

The learned advocate has also contended that the document admitted as the First Information in the case, Ex. 3 is not in fact the first information and should have been excluded. This contention is supported by the facts that four days before Ex. 3 was drawn up there were two information''s given at the thana and recorded in the station diary, Exs. 5 and 6, of which the latter was given by the constable himself. It is however clear that the convictions of the petitioners do not materially rest on this inadmissible document, and cannot therefore be interfered with on this, ground: see Gansa Oraon v. Emperor AIR 1923 Pat. 550.

The offences under Sections 342 and 147 stand on a different footing from those under Sections 224, 225 and 353. As the warrant was invalid, Kartik and his friends were entitled to resist or escape from a custody which was not strictly lawful. But they went further and caused hurt to the constable and wrongfully confined him. The constable was plainly acting in good faith under colour of office, though like the petitioners themselves he was probably unaware that the warrant he had been deputed to execute had been signed by an unauthorized person. The petitioners are thus clearly punishable for the rioting which was indulged in with the common object of assaulting the constable, and for the wrongful confinement of the constable. I would therefore affirm the convictions and the sentences passed upon the five petitioners u/s 147 and 342, I. P. C.

Scroope, J.

I agree except as regards the third ground on which the warrant is urged to be invalid, namely, because it has not been signed by the Subdivisional Magistrate who directed the issue of the warrant, having taken cognizance of the case u/s 190(1)(a), Criminal P.C., but by another Magistrate Babu K.C. Chatterji" for S.D.O., Dhalbhum." The report received from the Subdivisional Officer of Dhalbhum shows the circumstances in which Babu K.C. Chatterji came to sign the warrant; he was left in charge during the absence of the Subdivisional Officer on tour and accordingly he signed the warrant "for the Subdivisional Officer." He is a Deputy Magistrate with First Class powers and has powers also under Sections 190(1)(a) and 190(1)(b) as well as under Sections 143, 144 and 192, Criminal P. C.; so in respect of taking cognizance of offences on complaint his powers are identical with those of the Subdivisional Magistrate. He thus signed the warrant as Deputy Magistrate in charge during the absence of the Subdivisional Officer on tour and in my opinion he was ''the presiding officer" for the purposes of Section 75. Owing to the exigencies of official business it is not by any means possible for the execution of an order to follow at once on the passing of the order and there may be cases where owing to his absence on tour in the interior of a subdivision or absence at the district headquarters or illness a considerable period might have to elapse before the Subdivisional Officer''s signature can be obtained on a warrant in which he has directed to issue.

The argument of the learned advocate for the petitioner requires one to hold that in such circumstances warrants must be held up until the Subdivisional Officer is himself able to sign them. Obviously the course of justice might very seriously be impeded if such were the law facilitating as it would the escape of offenders. In such a case I consider that a warrant expressed as here to issue from the Court of the Sub-divisional Magistrate and signed as here "for the Sub-divisional Magistrate" by a Magistrate who himself would have jurisdiction in the matter is a valid warrant and that such an officer is a "presiding officer" for the purposes of Section 75. This view does not amount to any enlargement of existing powers; it simply renders feasible the exercise of existing powers; in other words, where there are two Magistrates at the subdivisional headquarters with identical powers in the matter of taking cognizance of offences on complaints and in the matter of issue of warrants u/s 204 (under which section the warrant in the present case was issued) I would say that in the absence of either from the headquarters the remaining one can sign for the other warrants issued under the latter''s direction. The case in Jagpat Koeri v. Emperor [1917] 2 Pat. L.J. 487 is not on all fours with the present one. That was a case of an Honorary Magistrate who, as far as can be seen, had no powers u/s 190, Criminal P.C. and could not in any view of the matter be called the Magistrate incharge or "the presiding officer."

I would therefore maintain the conviction under Sections 224, 225 and 353, I. P.C. but pass no separate sentence thereunder as the sentences passed under Sections 147 and 342, I. P.C. are sufficient punishment for the petitioners.