Allahabad High Court
Emperor vs Janki Prasad And Anr. on 3 November, 1920
Equivalent citations: 60IND. CAS.322, AIR 1921 ALLAHABAD 202
JUDGMENT 1. This is a Government appeal against an order of acquittal passed by the Sessions Judge on appeal from an order of conviction passed by a First Class Magistrate against two accused persons, Janki Prasad and Lachhman, under which these persons were sentenced to three months rigorous imprisonment and a fine of Rs. 100 each for offences under Section 353/225 of the Indian Penal Code. The case comes from the town of Phaphund. From the record of Case No. 17 King Emperor v. Kedar Nath and Ram Dat and Bhore, etc., of the Court of the Magistrate in the year 1920, and from the record of Case No. 11 of 1920, Bachchan Lal v. Wali Muhammad it appears that on the 10th of December 1919 a quarrel took place between a Brahman, named Bachhan Lal, and a Constable, named Wali Muhammad, attached to the outpost of the local Police Station. It arose over the drinking of water at a well when Wali Muhammad was washing his teeth by the side of the well. Apparently, the two men came to blows and Bachahan Lal at once made a complaint in Court. On the same date, a report was made by Nazir Husain, the Head Constable at the Police Station, which charged Kedar Nath, Ram Dat, Bhore and Bachchan Lal and two other persons with having committed the offences of criminal trespass and rioting in that, after the first squabble between Wali Muhammad and Bachchan Lal, the latter had collected some friends, had gone to the Police outpost, had dragged Wali Muhammad out of it and beaten him. The enquiry in the latter case was taken up by the Sub-Inspector, Muhammad Mohsin Jafri, and on the 11th of December he issued to Nazir Husain, Head Constable, written orders under Section 56 of the Criminal Procedure Code directing him to arrest Bhore and Ram Dat as well as others for the offences charged against them. The same Magistrate tried these two cases and also the, present case. The cases were apparently heard together and judgments were delivered on the same date. In the first case the charge against Wali Muhammad of assaulting Bachchan Lal was dismissed and in the second case the charge against Bhore, Ram Dat, and Bachchan Lal of the offance under Section 147, Indian Penal Code, was also dismissed. The Magistrate was of opinion that, even if Bachchan Lal and his friends had gone to the outpost after the first quarrel with Wali Muhammad, they went really to make a complaint, and that the charge against them had been exaggerated. The present case, the third one, arises in this way out of the first two. The case for the prosecution is that, on the 22nd of December last, Nazir Husain and Lallu Ram, Head Constables, found Bhore and Rain Dat sitting at the shop of Janki Prasad and Lachhman; that they arrested them at the shop, showed them the written order under Section 56, Criminal Procedure Code, and took them out on to the road; that thereupon Lachhman, Janki Prasad and some of their friends advanced angerly upon them, insisted upon the men being released, finally pushed aside the Police with their hands, and the men escaped and ran back to them shop. Nazir Husain sent to the outpost, which was some 50 or 60 paces away, for some Constables; that on their arrival he wrote a report on a piece of paper and sent it on to the Police Station to the Sub-Inspector. The Sub-Inspector at once proceeded to the spot and at case made an enquiry. Finally, he sent up Janki Prasad and Lachhman and two other persons for trial for the offence of having rescued Ram Dat and Bhore from lawful custody. 2. The defence case is as follows: Janki Prasad stated that on the day in question the Head Constable came to him at his shop telling him that the Sub Inspector desired his attendance at the Police Station in order that be might bring his influence to bear upon Bachchan Lal to settle the dispute which had arisen between Bachchan Lal and Wali Muhammad; that he (Janki Prasad) refused to go declining to interfere in a matter with which he had no concern; that the Head Constable abused him that be returned it with compliments and the Head Constable went away that, very shortly after, the Sub Inspector arrived upon the scene armed with a gun; that he galled for the man who had been impertinent to the Police, that he abused Janki Prasad, and the latter in return abused him, whereupon the Sub-Inspector deliberately raised his gun and fired point blank at him, and that the shot would have taken effect had not the Head Constable struck up the gun with his hand. 3. The Magistrate took evidence for both sides and Anally came to the conclusion that the prosecution story was true; that the story told by Janki Prasad was improbable and unworthy of belief and he convicted the accused and sentenced them as mentioned above. It will be remembered that he was the same Magistrate who acquitted Ram Dat and Bhore on the charge which had been preferred against them by Wali Muhammad and Nazir Husain. We may note here that two other accused were acquitted because their names were not entered in the first report, i.e., the report which was written by Nazir Husain at the scene of the occurrence and sent to the Police Station. Janki Prasad and Lachhman appealed to the learned Sessions Judge, who bas acquitted them without going into the actual facts of the case at all. His judgment sets out the case for the prosecution and the case for the defence. He then proceeds to say as follows: 'Now, in this appeal we have to see whether Nazir Husain had any authority to arrest Bhore and Ram Dat. The record shows that there is no warrant for arrest of Bhore and Ram Dat, nor is there any order of the Thanadar to arrest Bhore and Ram Dat. The prosecution failed to prove that there was any such warrant or order. There is no secondary evidence on the record which would satisfactorily prove that where was any warrant for arrest of Bbore and Ram Dat, for is there any satisfactory evidence to show that Ram Dat and Bhore had been accused of any cognizible offence so that a Police Officer could arrest them without any warrant." Thereupon, the learned Sessions Judge quotes the case reported as Tafazml Ahmed Chowdhry v. Queen-Empress 26 C. 630 : 13 Ind. Dec. (N.S.) 1005 which really does not govern the facts of the present case at all. He then continues to, say: "The deposition of Nazir Husain would show that he arrested Bhore and Ram Dat end then showed them the warrant. In Satish Chandra Dat Jodu Nanian Singh 26 C. 748 : 3 C.W.N. 741 : 13 Ind. Dec. (N.S.) 1079. Princep and Hill, JJ., held that an arrest by a Police Officer without notifying the substance of the warrant to the person against whom the warrant is issued, as required by Section 80, Criminal Procedure Code, is not a lawful arrest and resistance to Such arrest is not an offence under Section 225B, Indian Penal Code. As I have shown above there is no warrant on the record in this case nor is there satisfactory evidence of any warrant, and the evidence of Nazir Husain also shows that he did not notify the substance of the warrant before he arrested the person. So I do not see how the offence under Section 353/225, Indian Penal Code, could have been committed, and bow the accused could nave been convicted of this. There has not been any application in writing by the prosecution that I should either get the original warrant or get the secondary evidence about it or should send the case to the Court below to get the warrant in original, or secondary evidence about it, so I do not think I would be justified in doing anything of the kind, for I do not think the Judge's duty to be to procure evidence which was never produced by the prosecution," 4. It is difficult to understand what conception the learned Sessions Judge has of his duty as a Sessions Judge trying a criminal case. It is the duty of every Criminal Court to get to the bottom of a case and to bring all relevant evidence upon the record and to see that justice is done. The latter portion of the Judge's judgment shows clearly that his conception of his duty as a Judge is utterly incorrect and somewhat puerile. It is the attitude that might possibly be taken up by a Civil Court trying a civil suit where it is the duty of the parties to place their case as they think best before the Court. But in a criminal case it is the duty of the Court to get to the very bottom of it and to see that every scrap of relevant evidence is brought before it. The learned Sessions Judge has fallen far short of his duty in the present case. As a matter of actual fact, the Magistrate who tried the case had the record of the other two cases before him. They were in Court and the cases were tried together and the judgments were delivered together. We have seen, and we have examined, those records. The written orders passed under Section 56, Criminal Procedure Code, are before the Court and are on the record of the very case in which Ram Dat and Chore were tried and acquitted. To say that there was no evidence before the Magistrate of any complaint of a cognizable offence is utterly incorrect. The record of the case was before the Court and the Court itself was trying that very case. In addition to this, there was the first report which was on the record of this case. The learned Sessions Judge's judgment has made it necessary for us to go through the evidence in the case and to hear the appeal just as he ought to have done. 5. It has been ably argued on behalf of the accused that the evidence on the record produced by the prosecution should riot be believed and the story told by the accused should be accepted as true, Stress is laid on the fact that the Magistrate has himself found that the charge against Ram Dat and Bhore under Sections 452 and 147, Indian Penal Code, was not true and that the true facts had been grossly exaggerated. It is pointed out that Nazir Husain, who was a witness in that case and who claimed to have arrived upon the scene just at the close of the occurrence, must have known that the charge against Bhore and Ram Dat was grossly exaggerated if not utterly baseless. As to what actually happened on the 22nd of December we think that, in the main, the prosecution story was the true one. The story told by Janki Prasad and his brother is so incredible that we have no hesitation in agreeing with the Magistrate in rejecting it. Beyond all doubt, the written orders (which have been wrongly called warrants in this case) were issued under Section 56, Criminal Procedure Code, by the Sub-inspector to whom in-formation had been given by Nazir Husain of the offence charged against Bhore and Ram Dat. Armed with the authority of those written orders, we have little doubt that Nazir Husain and Lalla Ram arrested Ram Dat and Bhore. We have been taken through all the evidence for the prosecution. Oar attention has been called to the discrepancy in regard to Exhibit A, the first retort, which was written by Nazir Husain and sent to the Police Station. We do not think that this document is otherwise than genuine. It is true that one witness, after showing considerable doubt on the point, did finally say that the document had been written in pencil on a piece of paper produced by the Head Constable from his pocket, but the main evidence goes to show that the piece of paper was supplied by another constable who had come from the outpost when Lalla Ram, Constable, had been sent for assistance. The Police evidence is supported by the evidence of several other private persons and the cross-examination of these witnesses has not helped the defence in any way except in producing minor discrepancies of no value whatsoever. It, therefore, comes to this that, after the two men had been arrested and taken on to the road, the two accused persons, Janki Prasad and Lachhman, with others hustled the Policemen, pushed them aside and in that way rescued these persons from custody. Apart from the legality of otherwise of the arrest, neither Jaak Prasad nor Lachhman had any legal right whatsoever to lay their hands upon the Police and rescue from them the persons who had been arrested. But in the "present case we consider that the Constable, Nazir Husain, was armed with full authority, namely, the written orders issued by the Sub Inspector under Section 53, Criminal Procedure Code. The resistance of the Police does not seem to have been great. No injury was done. It was a question of hustling and rescuing men. The two accused have suffered two days rigorous imprisonment and, in the circumstances, we think that the ends of justice will be met by a substantial fine. We, therefore, accept the appeal. We set aside the order of acquittal. We convict Janki Prasad and Lachhman of offences under Section 353, read with Section 225, Indian Penal Code and sentence them to a fine of Rs. 250 each in addition to the two days' rigorous imprisonment which they have already undergone. In default of payment of the fines they will each suffer one month's further rigorous imprisonment. We allow the accused a fortnight within which to deposit the fine in the Court of the Magistrate. Walsh, J.
6. I agree. In my opinion it was impossible for the Government to permit the judgment of the Sessions Judge to stand. Whatever the merits might have been, a decision that members of the public are entitled to interfere with members of the Police force while in bona fide execution of their supposed duty, and to rescue their friends, is so entirely without legal foundation and so dangerous in principle, that no Government could, in the public interest, permit it to stand. The learned Judge has muddled himself over cases relating to arrest, when the question which he had to decide was one of rescue, an entirely different matter. He has also muddled himself over a question of warrants, when the question which he had to decile arose out of an arrest without a warrant under Section 56 of the Code. Ha had the courage to hold that there was no evidence on the record and that the posecution had failed to prove the order, when a proper order dated the 11th of December was on the record before him. These are very serious blunders in a case of public importance particularly in a quarrel between Hindus and Mahammadan members of the Police force. It is not the first time that we have had occasion to criticise the procedure of this learned Judge at Sessions, and it is important that he should take greater care to set a good example to those under him.