MAMMED BEARY Vs. STATE

JUDGEMENT

(1.) The petitioner in this case has been convicted by the first Class Magistrate, Kasargod for an offence under Section 225-B, I. P. C., and sentenced to three months rigorous imprisonment. In appeal the conviction and sentence were con firmed by the Sessions Judge.

(2.) The facts of the case are not seriously disputed. On 13-2-1953, the complainant a process server of the Court of the District Munsif, Kasar-god went to the house of the first accused to execute a warrant for his arrest. The contents of Ex. P. 1, the warrant, were duly read over and explained to the petitioner and the process server touched him in token of arrest and further told him that he has been arrested. The first accused took up a defiant attitude and he called his brothers accused 2 to 4. All the accused are said to have beaten the process server till P. Ws. 3, 4 and 5 came and got him released. They prevailed upon him to obey the law and sign the warrant and finally the accused signed the warrant. He thereupon refused to accompany P. W. 1 to Kasargod in spite of his being told that he was under arrest and being asked to accompany P. W. 1. P. W. 3 is said to have suffered injuries caused by the accused and on return to Kasargod laid a complaint against the accused and three others. The trial court found that the case against three others had not been made out and found the petitioner guilty under Section 225-B for having escaped from lawful custody. The same was upheld by the appellate court.

(3.) Two points have been taken before me by Mr. Santosh appearing for the petitioner. The first point is that the warrant in this case has not been signed by the District Munsif in accordance with the provisions of Order 21, Rule 24, Clause (2), C. P. C., as it was signed only by the Head-clerk and that no evidence has been let in to show that the Head-clerk is authorised to sign the warrants as under Clause (2) of Order 21, Rule 24, a warrant may be signed by any officer authorised by the District Munsif. On this point, I called for a report as to whether the Head-clerk has been authorised to sign the warrant. The District Munsif has sent a report stating that in view of the Hitch Court's circular, P. Dis 534 of 1943 dated 20-10-43 he had authorised the Deputy Nazir to sign all the processes other than the arrest warrants and the Head-clerk to sign the arrest warrants under Order 21, Rule 24 (2), C. P. C., respectively, in all cases where such processes have been ordered to be issued. It is true that when the Head-clerk gave evidence, he aid not produce this authorisation in court. Technically speaking Mr. Santosh is certainty right in saying that evidence ought to be given in court. But in my opinion the failure to the this authorisation is not a lacuna in the prosecution case so as to warrant this case being sent back for the purpose of letting in that evidence. In any event, the report having come from the District Munsif, this can be filed herein this revisional court as part of the records. The contention therefore, that it has not been shown that the Head-clerk has been authorised does not have any force, after the receipt of this report.