KUNHAMBU NAMBIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) In this revision petition filed by the accused, in C. C. No. 488 of 1956 on the file of the Sub Magistrate at Cannanore, the sustainability of the conviction entered against him by the sub Magistrate under S.225B of the Indian Penal Code and which was confirmed by the District Magistrate of Malabar, has been challenged by him. The prosecution case is that in execution of the decree in O. S. No. 55 of 1950 on the file of the District Munsiffs Court at Taliparamba, the court had issued a warrant of arrest against the judgment debtor accused and that P. W. 5, the process server to whom the warrant had been entrusted, arrested the accused at about 4.30 p.m. in Kokkanisseri bazaar, on 7-3-1956 and that the accused ran away and escaped from the lawful custody of the process server. Ext. PI is the warrant under which the accused was arrested. After the accused had escaped from the lawful custody of P. W. 5, the latter returned the warrant to the court with the endorsement Ext. PI (a) and stating the circumstances under which the accused escaped from lawful custody. On the basis of that endorsement the District Munsiff sent Ext. P2 communication to the police requesting that necessary action may be taken against the accused. The police registered a case under S.225 B of the Indian Penal Code and, after due investigation, the case was charge sheeted in the Sub Magistrates Court at Cannanore. At the trial the prosecution examined Pws. 1 to 6 and produced Exts. P1 to P 5 and M. O.1 and M. O 2. Eventhough the accused pleaded not guilty to the charge against him , he did not care to examine any witness for him. Of the witnesses examined for the prosecution, Pws. 2, 3 and 5 have already clearly deposed to the arrest of the accused from the custody of Pw. 5, and of the forcible escape of the accused from the custody of Pw. 5. The learned Magistrate believed and accepted the evidence of these witnesses and found that Pw. 5 had arrested the accused on the strength of the warrant Ext. PI and that the accused had forcibly escaped from the custody of Pw. 5. These findings have been confirmed by the District Magistrate before whom the accused had preferred an appeal against his conviction and sentence. Thus the Trial Court as well as the appellate court have believed the prosecution evidence and have concurrently found that the accused had committed the act alleged against him. That finding calls for no interference in revision. It may also be stated that in the revision petition the accused has not also challenged the correctness of that finding.

(2.) The only point raised in the revision petition is that the warrant Ext. P1 was not signed by any officer having the legal authority to do so and hence the arrest of the accused by Pw. 5 cannot be said to have been legal so as to constitute the escape from the custody of Pw. 5, an offence punishable under S.225B of the Penal Code. No doubt, the gist of the offence under that section is resistance or obstruction to lawful apprehension or escape or rescue from lawful custody or attempt to secure such escape or rescue. In the present case the act committed by the accused is forcible escape from the custody of Pw. 5. In order that this act may amount to an offence under S.225 B, two pre-requisites must have been satisfied and they are: (1) Pw. 5 had the legal authority to arrest the accused and (2) the warrant Ext. P1 on the authority of which he was making the arrest had been legally issued by a competent authority. Pw. I is the decree holder in O. S.55 of 1950 and he has deposed that he had filed an execution petition praying that for realising the decree debt due from the judgment debtor accused, he may be arrested and sent to the civil jail. Such arrest followed by the detention in civil jail is authorised by S.55 of C. P. C. R.24 of O.21 of the same Code prescribes the manner in which the process for the execution of the decree has to be issued. C1. (2) of R.24 states: