Patna High Court
Bankey Behary Singh And Ors. vs Emperor on 5 June, 1918
Equivalent citations: 46IND. CAS.523, AIR 1918 PATNA 613
JUDGMENT Mullick, J.
1. The petitioner Banke Behari Singh has been sentenced under Section 353, Indian Penal Code, to rigorous imprisonment for three months and a fine of Rs. 30 and under Section 224, Indian Penal Code, to a concurrent term of rigorous imprisonment for three months. The petitioners Jagdip Singh, Umedi Singh and Sawkhi Singh have been sentenced under Sections 225 and 353, Indian Penal Code, to concurrent terms of rigorous imprisonment for three months each.
2. The case for the prosecution is that a warrant was directed by the Deputy Magistrate of Monghyr to the Sub-Inspector of Lakhi Serai for the arrest of Banke Behari Singh on a charge under Section 420 of the Indian 'Penal Code. There was in the warrant a direction that if the accused gave bail himself for the sum of Rs. 100, then he was to be directed to appear before the Deputy Magistrate on the 7th November 1917. That warrant was directed by the Sub-Inspector of Lakhi Serai to a constable named Ram Saran, who alleges that he arrested Banke Behari Singh opposite the door of one Jehal Singh on the 23rd November 1917. Banke Bihari Singh maintained that no warrant had been issued against him and after some conversation the constable proceeded to take him to the house of one Jhagru Singh, so that the accused might execute a bail bond. On the way to Jhagru Singh's house it is alleged that the remaining petitioners assaulted the constable and knocked him down and that Banke Behari Singh in the course of the struggle picked up the constable's pugri and tore it to pieces and thereafter escaped. It is necessary to state that Banke Behari Singh was subsequently tried for the substantive offence for which the warrant was issued and was acquitted.
3. Now there was an appeal against the convictions and sentences before the Sessions Judge of Monghyr, who declined to interfere, and hence the present application for revision to this Court.
4. The main point urged before us to-day is that the warrant was illegal and, therefore, no offence under Sections 353, 224 and 225 could have been committed.
5. The first ground upon which the warrant is attacked is that in the first part of it the Deputy Magistrate has only affixed his initials although in the concluding part, which relates to the taking of bail, he has signed his name in full. Reliance is placed upon Section 75 of the Criminal Procedure Code and on the case of Abdul Gafur v. Queen Empress 23 C. 896 : 12 Ind. Dec. (N.S.) 595. So far as that case is concerned, it does not support the contention of the learned Vakil, for in that case the principal reason for holding the arrest to be illegal was that the contents of the warrant had not been explained to the accused before his arrest and that the accused had not had a chance of seeing the warrant and reading it. In my opinion the Deputy Magistrate was guilty of gross carelessness in not signing his name in both places in the warrant, but that in itself is not an illegality which, in my opinion, vitiates the arrest, Section 537 of the Criminal Procedure Code expressly states that where a document is required to be signed in full and there is some defect as to the signature then that defect constitutes an irregularity within the meaning of this section. Here the defect in regard to the signature, is, in my opinion, only an irregularity which does not affect the validity of the arrest.
6. It is urged that that Illustration in Section 537 of the Criminal Procedure Code only relates to a case in which the defence to the substantive charge is that the accused has not been properly brought before the Court and that it would not cover a case in which the illegality of the warrant itself is a fact in issue In nay opinion the Illustration in the form in which it appears in Section 537 does not necessarily support such an inference. The defect in this case was a defect of minor importance, which really does not go to the root of the case. The first point, therefore, fails.
7. The next point is that the warrant was not property directed to the Sub Inspector of lakhi Serai inasmuch as the name of that Police Officer has not been specified, and reliance is placed on Sections 75, 77 and 79 of the Criminal Procedure Code as well as upon Form No. 2 of Schedule V, which gives an illustration of the form in which a warrant is to be drawn up.
8. Now Section 77 merely directs that a warrant shall be ordinarily directed to one or more Police Officers. It does not say that the name of that Police Officer is to be inserted in the warrant as well as his designation. On the other hand the schedule no doubt suggests that both name and designation are to appear in the warrant.
9. Section 554 of the Criminal Procedure Code, on the authority of which the schedule is framed, expressly states that the forms given in the schedule are liable to be varied according to the requirements of each particular case. It would certainly be extremely difficult to carry on the Police administration of the country if every warrant had to be directed by name to a Police Officer and upon his transfer it were to become incapable of execution till the name of some other officer had been substituted in his place.
10. The learned Vakil has brought to our notice the case of Durga Tewari v. Rahaman Buksh 4 C.W.N. 85, but that case is no authority for the proposition that the Police Officer to whom a warrant is in the first instance directed must be directed by name and that it Will not be Sufficient to merely describe him by his official designation. In that case the warrant was in the first instance directed to the Court Sub-Inspector and the learned Judges of the Calcutta High Court did not take any objection to the Warrant on the ground that the Court Sub-Inspector's name was not entered in the warrant. The ground upon which objection was taken was that the Court Sub-Inspector had endorsed the warrant to another officer and in doing so omitted to describe that officer by name. The learned Judges rested their decision on Section 79 of the Criminal Procedure Code, which clearly requires that where 4 warrant is directed by the officer originally entrusted with its execution to another officer the name of the latter officer must appear upon the endorsement. Here that section does not apply. Therefore, the second ground taken must also fail.
11. The third ground is that the terms of Section 80 of the Criminal Procedure Code were not complied with. Now the constable who made the arrest states that when he found the accused Banke Behari Singh, he showed him the warrant saying that he would take bail of it was offered, Banke Behari asserted that no warrant had been issued against him. The constable thereupon caught hold of Banke Behari's right hand.
12. Now Section 80 requires that the sub-stance of the warrant shall be notified to the accused and that if the accused demands it, he shall have an opportunity of reading it himself. 1 agree with the Courts below that the terms of this section were substantially complied with. The construction suggested on behalf of the appellant would on the other hand make an arrest practically impossible in the case of captures after pursuit or where the accused does not understand the arresting officer's language. It seems to me, therefore, that all that the section requires is that the accused shall have reasonable opportunity of knowing on what charge he is being arrested and before what Court he is to appear, so that he may take steps for arranging for his defence. Here the accused had sufficient opportunity of reading the warrant itself. The warrant was partly in English and partly in Hindi and it does not appear that any obstruction was offered to his getting it interpreted. The omission on the part of the constable to explain to the accused the particulars of the warrant after showing him the warrant cannot, in my opinion, invalidate the arrest. Reliance is placed upon Abdul Gafur v. Queen-Empress 23 C. 896 : 12 Ind. Dec. (N.S.) 595 and Satish Chandra Rai v. Jodu Nandan Singh 26 C. 748 : 3 C.W.N. 741 : 13 Ind. Dec. (N.S.) 1079, but these cases throw no new light upon the point and were decided upon facts which established that the accused had not had a reasonable opportunity of, ascertaining the contents of the warrant. Therefore, the third ground also fails.
13. Finally it has been urged that so far as Banke Behari is concerned, he did nothing which would render him liable to conviction for the offence of assaulting the constable in the execution of his duty. Now the evidence is that Banke Behari struggled to wrench himself free while the constable was being assaulted by the other petitioners and that when the constable was lying on the ground, Banke Behari picked up his pugri and tore it up. Upon these facts the learned Courts below have held that there was an assault within the meaning of Section 353 of the Indian Penal Code, that is to say, that the accused by his acts and gestures created an apprehension in the mind of the constable that be would be assaulted. In this view of the case the technical offence of assault has been proved and, therefore, the conviction under Section 353 of the Indian Penal Code is correct.
14. So far as the other petitioners are concerned, the assault upon the constable has been conclusively proved. The act of the petitioners was unjustifiable and lawless and in my opinion the convictions and sentences must be affirmed. The application is dismissed.
Thornhill, J.
15. I agree.