Kishun Mandar vs King-Emperor

Ross, J.—The first petitioner has been sentenced to six months rigorous imprisonment u/s 147 of the Indian Penal Code and to four months rigorous imprisonment u/s 332, Petitioners Nos. 2, 3 and 4 have been sentenced to six months rigorous imprisonment u/s 147 and petitioner No. 5 has been dealt with u/s 562 of the Code of Criminal Procedure on conviction u/s 147 of the Penal Code.

It appears that three persons, Dipu Kishun and Bawan had been charged before the police with the theft of a bullock. On the 3rd of June 1925. the Sub-Inspector deputed a constable Harihar Singh to arrest them. Harihar Singh, accompanied by the complainant in that case, went to the house of Dipu in the early morning and found him asleep and arrested him and took him away. He had gone some distance when he was attacked by the petitioners and Dipu was rescued, injuries being inflicted upon the constable. The ground upon which the conviction is attacked is that the constable did not comply with the provisions of Section 56 of the Code of Criminal Procedure in making the arrest inasmuch as he did not, before making the arrest, notify to the person to be arrested the substance of the order. This provision has been added to Section 56 by the recent amendment of the Code of Criminal Procedure; and it is contended that the effect of that amendment is to bring in the decisions on Section 80 of the Code to the affect that if the police officer executing a warrant of arrest does not notify the substance thereof to the parson to he arrested, he is not acting in the discharge of his public functions in the manner authorized by law.

The learned Government Advocate who appeared in support of the conviction did not contend that the provisions of Section 56 had been complied with; but he argued that independently of Section 56 the constable was entitled to arrest Dipu without a warrant u/s 54. The terms of Section 54 are very wide and authorize 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 reasonable complaint has been made out or credible information has been received or a reasonable suspicion exists of his having been so concerned. Now there can be no doubt in the present case that Dipu was such a person. The fact that he was eventually acquitted is of no consequence. A complaint had been made which the police believed to be true and his arrest had been ordered. The fact that a command certificate had been given to the constable u/s 56 is immaterial, as the constable, independently of any such command certificate was entitled to make the arrest.

It was contended on behalf of the petitioners that Section 56 lays down the procedure to be followed in the cases to which it applies and that that procedure had not been followed in the present case; and that the section applies to constables equally with chaukidars. But the fact that Section 56 applies to constables does not deprive them of their statutory powers conferred independently of that section. In my opinion, therefore, this arrest was perfectly legal and the petitioners were rightly convicted. The application must be dismissed and the petitioners will surrender to there bail to undergo the rest of their sentences.

Kulwant Sahay, J.

I agree.