Raghuni Prasad Mahto and Others vs Emperor

Rowland, J.—The only point of law arising in this case is whether petitioner No. 1 Raghuni was lawfully arrested, so that it was an offence for him to escape from the custody of the constable Rajo Singh and for the other petitioners to rescue him. A prosecution was pending against Raghuni for an alleged offence u/s 186, I.P.C. and a warrant of arrest had been issued against him on his failure to appear in response to a summons. The warrant had come to Mohiuddinnagar Police Station and the constable was aware of this. But he had not the warrant with him. Therefore the provisions of the Code regarding arrest in execution of a warrant did not apply and it is necessary to see whether there were facts entitling the constable to arrest Rughuni in exercise of the general powers of a Police Officer u/s 54, Criminal P.C. That section authorises the arrest without warrant firstly of a person concerned in a cognizable offence or credibly alleged to have been so concerned. This clause does not apply because the offence for which Raghuni was wanted was that of obstructing a Public Officer u/s 186, I.P.C. which is noncognizable. The section authorises arrest thirdly of any person who has been proclaimed as an offender under this Code, and the prosecution relied mainly on this clause, it being their case that a proclamation for the appearance of the accused had been issued and served.

The proclamation has not been put on the record, nor has any witness been examined to prove that he served it. The date on which it was served has also not been disclosed. Prosecution Witness 1, Rajo Singh, Constable and P.W. 8, the Sub-Inspector, have spoken of process having been served under Sections 87 and 88, but it does not appear from their depositions that either of them speaks from direct knowledge or was present at the service. Then the prosecution relies on Ex. 7, order-sheet of Section 186 case against the accused. With reference to this exhibit, I must point out that the original order-sheet is not on the record as submitted to this Court. There is what purports to be a copy of it, but the copy is not authenticated as a true copy. It has been suggested for the prosecution that probably the original order-sheet may have been marked an exhibit at the trial and that at the conclusion of the proceedings the original order-sheet was kept in its proper place on the record of the Section 186 case, a copy being retained on this record. That is the ordinary procedure, but I should point out that if it is so done, the copy placed on the record ought to be certified to be a true copy and in the margin of it, it ought to be noted that the "original has been marked Ex. 7," or whatever the number may be. Assuming however that this is a correct copy of the order-sheet, the order relied on is that dated 2nd October 1934 which runs thus:

Process 87 and 88, Criminal P.C. served, Accused absent. Call P.W.s for recording evidence Section 512, Criminal P.C., for 21st October 1934.

The prosecution relied on this order as sufficient proof of the service in virtue of Section 87, Clause (3):

A statement in writing by the Court issuing the proclamation, to the effect that the proclamation was duly published on a specified day, shall be conclusive evidence that the requirements of this section have been complied with and that the proclamation was published on such day.

This provision is only applicable when a statement in writing by the Court specifies the date on which the proclamation was published. Where this is not done, the recording of such an order will not suffice to take the place of direct evidence of publication and service of the proclamation. I must hold that it is not proved that the proclamation was duly served and that it is not proved that the petitioner Raghuni was a person liable to be arrested without warrant. Consequently, it is not proved that his escape and rescue were from lawful custody and therefore punishable under Sections 224 and 225. The convictions under these sections must accordingly be set aside and the conviction u/s 147 for rioting with the common object to rescue him, must fail with them. The Rule is made absolute.