Public Prosecutor vs Annadham Annamalai and Others

Ramaswami, J.—These are appeals against acquittal preferred by the Public Prosecutor in C. C. No. 2957 of 1949 and 990 of 1949 on the

file of the Stationary Sub-Magistrate, Cuddalore.

Both the appeals relate to the same transactions and the facts are fully set out in C. C. No. 2857 of 1949 and dealt with below.

The facts are: The District Magistrate of South Arcot had promulgated on 17-7-1948 an order of detention u/s 2(1)(A), Madras Maintenance

of Public Order Act against Chottu ''alias'' Vasudeva (See Ex. P. 1). On the night of 26-11-1943 at about 8-15 p.m. P. W. 2, Head Constable

No. 811 attached to the N.V. Pattu outpost, got information that this Chottu ''alias'' Vasudeva was in the house of Subramanian (accused 2) in

East Chetti Street in N. V. Pattu and proceeded there accompanied by P. Ws. 3, 4 and 5. This party was also accompanied by some of the

villagers including P. W. 6. On reaching the house, P. W. 2 found there accused 2 & 6 & questioned them about the presence of this Vasudeva

and not being satisfied with the reply, P. Ws. 2 and 3 got into the house and found the said Vasudeva in the northern room and he was pulled

towards the street door assisted by P. Ws. 4 and 5. Accused 2 and 6 protested and obstructed and the womenfolk raised an alarm and a crowd

of 20 to 30 people gathered and they sided with the accused persons. In the course of this, this Chottu ''alias'' Vasudeva is stated to have made

good his escape. On seeing this the people who obstructed also ran away. Only accused 2 was caught and taken to the Police station and a

special report was given to the Circle Inspector by P. W. 2. Then a charge-sheet was laid against eight persons for obstruction and resistance to a

public servant in the discharge of his duties and rescuing a person from lawful detention, offences under Sections 353 and 225-B, I. P. C.

In C. C. No. 990 of 1947 the self-same witnesses were examined and the evidence is practically the same as set out above.

The accused one and all denied the offence and pleaded not guilty to the charges framed against them and the main point taken was the legality

of the apprehension of this Chottu ''alias'' Vasudeva.

The substance of this contention was as follows: The detention order relied on is a general order of detention and is not a warrant addressed to

any person directing the arrest. P. W. 2 relied on Ex. P. 1 for the apprehension of this Chottu. The power to arrest without warrant a subject

named in the detention order arises u/s 13 of the Madras Maintenance of Public Order Act only when the person is reasonably suspected of

having committed an offence under the said Act. It is not the case for the prosecution that Vasudeva has committed any offence under that Act nor

was it a ground relied upon by the prosecution in support of the power to arrest claimed by P. W. 2 and others. The prosecution has proceeded

almost entirely on the footing that the detention order amounted to an arrest warrant and was entrusted to Head Constable 811 for execution. Both

these assumptions were unfounded because Ex. P. 1 is only a detention order promulgated and did not empower any person to effect the arrest

and inasmuch as the Head Constable left the outpost with intention to apprehend Vasudeva only under this detention order and not because this

Vasudeva was reasonably suspected of having committed an offence, Section 23 of Police Act V of 1861 could not be invoked and which

invocation was both belated and an afterthought and not permissible as pointed out in In Re: Appaswamy Mudali and Others, .

The learned Sub-Magistrate accepted this contention and acquitted the accused, though on the facts constituting the gravamen of the charge,

viz., obstruction and escape, he found the prosecution case to be true.

The point for consideration is whether the acts complained of fall within Section 225-B and Section 353 I. Penal Code. Section 225-B was

substituted by the Indian Criminal Law Amendment Act 10 of 1886, Section 24 (1). This section was introduced to provide for cases referred to

in --''Empress v. Shasti Churn Napit'', 8 Cal 331 (B) and -- ''Queen Empress v. Kandhala'', 7 All 67 (C), in which it was held that a person

escaping from custody when being taken before a Magistrate for the purpose of being bound over to be of good behaviour not being punishable

u/s 224 or 225 could not be punished, and for cases which Section 651 of the old CPC was intended to meet. The requirements of this section are

however the same as u/s 224 or Section 325.

The evidence requisite to prove the offence u/s 225 is (i) that the person in question was detained in custody; (ii) that such detention was in

respect of an offence; (iii) that such detention was lawful; (iv) that the accused rescued or attempted to rescue such person; and (v) that he did so

intentionally. There must be a clear finding as to the Intention with which the accused acted; -- ''Alawala v. Emperor'', AIR 1922 Lah 73 (D); --

''Geevarghese Khathanar v. State'', 36 Trav LJ 694 (E). It must be proved further that the case falls under a particular clause of the section.

The word ""offence"" means a thing punishable under the Penal Code or of any special or local law (Seciton 40). A special law is defined in

Section 41 as a law applicable to a particular subject and a local law has been defined in Section 42 as the law applicable only to a particular part

of British India (now Republic of India). Therefore, we have got to see whether Madras Act 1 of 1947, (hereinafter referred to as the Act) is a

local law or a special law. The special laws contemplated in Sections 40 and 41 are only laws such as the Excise, Opium and Cattle Trespass

Acts, creating fresh offences, i.e., laws making punishable certain things which are not already punishable under the Penal Code. The Whipping

Act is not a special law in this sense. It creates no fresh offence but merely provides a supplementary or alternative form of punishment for offences

which are already punishable primarily under the Penal Code: -- ''Emperor v. Po Han'', AIR 1914 Low Bur 145 (P) and -- In Re: Swami

Arunagirinathar, .

The preamble to Madras Act 1 of 1947 states:

Whereas for the maintenance of public safety and to prevent and put down disorders involving menace to the peace and tranquillity of the

Province, it is necessary to provide for preventive detention. Imposition of collective fines, control of meetings and procession, control of services

essential to the life of the community & certain other purposes; it is hereby enacted as follows.

This Act creates no fresh offences but merely provides the supplementary or alternative punishment for offences already primarily punishable under

the Penal Code or which can be dealt with under the preventive or reformative provisions of the Code of Criminal Procedure. This is made clear

by Section 18 of the Act:

The provisions of this Act shall be in addition to and not in derogation of any other Act, Ordinance or Regulation for the time being in force.

Therefore, this is not a special law. On the other hand, it can be considered to be a local law applicable to the State of Madras. A local law does

not necessarily include all the rules made under the provisions of a local law: --''Ganda Shah v. Queen Empress'', 23 Pun Re Cri 1894 (H);&--

''Ma Khwet Kyi v. Emperor'', AIR 1929 Rang 75 (I). Where a local law declares a breach of the rules made under its authority to be punishable,

then a breach of such rules might constitute an offence within the meaning of Section 40 of the Code. Therefore, when the act in respect of which

apprehension or detention was made was in respect of an offence falling within a local law it will be a detention in respect of an offence falling

within the meaning of Section 40, Penal Code, and a rescue by others and the escape by the detainee will attract the application of Section 225B,

I. P. C. provided the detention was lawful.

Was the detention in this case lawful is the further point for our consideration? Section 2 of the said Act deals with the powers to make

detention orders. The detention order in this case has been marked as Ex. p. 1 and it recites that Vasudeva was being detained in exercise of the

powers conferred u/s 2(1)(a) of the Madras Act 1 of 1947 read with the order of the Government of Madras G. O. Ms. No. 907 (Public)

General (E) dated 21-3-1947 and that the attention of the said Vasudeva was being drawn to the general order of the Government of Madras u/s

2(5) of the Act, a copy of which was being attached. Section 2(5) states:

So long as there is in force in respect of any person such an order as aforesaid directing that he be detained, he shall be liable to be removed to

and detained in such place and under such conditions, ..... as the Provincial Government may, from time to time by general or special order,

specify.

Then Section 2 proceeds to make provision for two sets of conditions:

If the Provincial Government have reason to believe that a person in respect of whom such an order as aforesaid has been made directing that he

be detained has absconded or is concealing himself so that the order cannot be executed, they may --

(a) make a report In writing of the fact to ...... a Magistrate of the first class .... having jurisdiction in the place where the said person ordinarily

resides; and thereupon the provisions of Sections 87, 88 and 89, Crl. P. C., 1898 Shall apply, In respect of the said person and his property, and

if the order directing that he be detained were a warrant issued by the Magistrate;

(b) by order notified in the Fort St. George Gazette and published in such other manner as they think fit, direct the said person to appear before

such officer, at such place and within such period as may be specified in the order .... .... ...

If the said person fails to comply with such direction provision is made for his punishment. Then, for persons harbouring or concealing these

persons ordered to be detained or persons reproducing or publishing statements etc. made by persons ordered to be detained, offences are

enacted and punishments prescribed. Section 13 provides:

Any police officer may arrest without warrant any person who is reasonably suspected of having committed an offence punishable under this Act.

Section 14 provides for attempts and abetment to contravene the provisions of this Act. In other words, after a detention order is made and the

detainee is found to be absconding or concealing himself, provision is made in the Act for a report to a First class Magistrate and then the detainee

becomes a notified or proclaimed offender and all the incidents attached to Sections 87 to 89 of the Crl. P. C. apply. Section 87 of the Crl. P. C.

deals with proclamation and attachment, Section 88 with the attachment of property and Section 89 with restoration of attached property of the

proclaimed offender. In other words, by virtue of the report in writing to the First Class Magistrate the detention order becomes as if it view

transmuted into a warrant issued by a magistrate and thereupon and thereafter the provisions of Sections 87, 88 and 89 can be applied and if

applied thereupon it will be open to any police officer to arrest the detainee wherever he may be found under the third category of Section 54, Crl.

P. C., viz, a person who has been proclaimed as an offender either under the Criminal Procedure Code or by order of the State Government. If

the provisions of Sections 87 to 89 have not been applied and the detention order remains at one stage or as if it were a warrant Issued by a

Magistrate even then it would be a case falling within Section 54, Cri. P. C. or Section 13 of this Act, viz, ""any police officer may arrest without

warrant any person who is reasonably suspected of having committed an offence punishable under this Act"", viz, becoming a detainee absconding

or concealing himself after the Gazette notification had been made under Sub-clause (b) of clause (6) of Section 2 of the Act and not complying

with the terms of the detention order and thereby committing an offence punishable under the Act.

This has not been the case here as it will be seen that beyond passing the detention order there is no evidence that action had been taken under

clause (6) of Section 2 of the Act. This cannot be got over by invoking Section 23 of the Police Act 5 of 1861, because as pointed out by the

learned Sub-Magistrate, that section lays down nothing more than that.

It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully Issued to him by any competent authority;

to collect and communicate Intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring

offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists:

and it shall be lawful for every police officer, for any of the purposes mentioned In this section, without a warrant, to enter and inspect any drinking

shop, gaming house or other place of resort of loose and disorderly characters.

It will be seen that none of the clauses applies to this case. This section does not cover the execution of an invalid warrant or extend a constable''s

powers of arrest; -- Kartik Chandra Maity Vs. Emperor, . Therefore, the apprehension of the person in question Vasudeva was not lawful and

once the apprehension or detention is not lawful, it is well settled law that his own escaping as well as the rescuing of such a person by others is no

offence. The person from whose custody the rescue is effected or escape made must have authority to lawfully detain the person rescued.

Otherwise no offence is committed to effecting the rescue: --''Bolai De v. Emperor, 35 Cal. 361 (K)''. --''Kesar v. Emperor'', AIR 1932 Lab. 263

(L), --''Shridhar, AIR 1945 Rang. 141 (Sic) (M) and Vijoy Narain Singh v. Emperor 22 Pat L. T. 29 (N)'', -- King-Emperor Vs. Lachhu

Kamara, -- In Re: Mareedu Somaiah and Others, . But if the person rescuing another who is arrested under an illegal warrant uses more force than

is necessary and causes unnecessary hurt to the public servant who has custody of that person, he will be punishable u/s 353, I.P.C; --''Mousi Lal

v. Emperor'', AIR 1918 Pat. 252 (Q). In this case it has been found by the Magistrate that no unnecessary force was used and that the force used

by these rescuers was just the minimum necessary to obtain the apprehension of Vasudeva.

This will also make the escape of Vasudeva from detention equally innocuous. A person cannot be convicted of escape unless the custody in

which he was detained was lawful: --''Emperor T. Ramara'', 7 Cri LJ 74 (LB) (R); --''Emperor v. Khanu Kori'', AIR 1925 Sind 193 (S) -- Jograj

Mahto and Another Vs. Emperor., .

A person about to be arrested is entitled to know under what power the constable is arresting him & if he specifies a certain power which he

knows that the constable has not got, he is entitled to object to such arrest and escape from custody, such custody not being a lawful one. This has

been well laid down in the decision of the House of Lords in --''Christie v. Leachinsky, (1947) AC 573 (U). It was held (affirming the judgment of

the Court of Appeal)

that an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested and it is a condition of lawful

arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested; therefore just as a private person arresting

on suspicion must acquaint the party with the cause of his arrest, so must a policeman arresting without warrant on suspicion state at the time

(unless the party is already acquainted with it) on what charge the arrest is being made or at least inform him of the facts which are said to

constitute a crime on his part. Even if circumstances exist which may excuse this, it is still his duty to give the information at the first reasonable

opportunity after the arrest.

This embodies only the sound rule embodied in Section 30), Cr.P.C. viz, that the Police officer shall inform the warrantee the substance thereof

and if so required has got to show the warrant. This court has laid down in --''AIR 1924 Mad. 555 (A)'', that a person about to be arrested is

entitled to show under what power the constable is arresting him and if he specifies a certain power which the person knows the constable has not

got, he is entitled to object to such arrest and escape from custody, such custody not being lawful one. See also -- Ramjit and Others Vs. Emperor

. Thus where an inspector of police catches hold of the wrist of the accused without informing him for what offence he was being arrested accused

wrenching himself free is not guilty of any offence under the Indian Penal Code: --''Moneshwar Bux) v. Emperor'', AIR 1939 Oudh 81 (W).

There is a long line of decisions that resistance to the execution of an unlawful order, or unlawful arrest or defective warrant making out it is ''ex

facie'' illegal is no offence. Where the Sub-Inspector asked the constable to bring the accused to thana by force and there was a scuffle, held as

there was no direction for arrest accused was not guilty of an offence under Sections 224, 225, 353, I. P. C. -- Gulabi Mahto and Others Vs.

Emperor, . Under the Madras Gaming Act arrest of accused in a shop in the absence of proof that it was a common gaming house led to

obstruction to arrest and it was held to be no offence --''Kandasami Thevan v. Emperor'', 1934 Mad WN 616 (Y). Where warrants have not

been duly signed or sealed or they are sought to be executed beyond duly authorised and authorisable persons obstruction to execution of such

warrants is not unlawful provided the force used is the minimum necessary; -- Jagannath Vs. Emperor, Fattu and Others Vs. Emperor (Yedama)

Subbaramiah Vs. Emperor, ''In re Bhullikhan AIR 1938 Nag. 45 (Z3)''; -- Bansropan Singh and Others Vs. Emperor, .

Therefore, the acquittals made by the learned Stationary Sub-Magistrate are correct and these appeals are dismissed.