KUNWARSEN AND OTHERS Vs. STATE

JUDGEMENT

(1.) The six Applicants in this case were convicted by a Magistrate in district Muzaffarnagar Under Sec. 225-B of the Penal Code and sentenced to pay a fine of Rs. 100.00 each. They went up in appeal to the Sessions Judge, who maintained the conviction of the Applicants but reduced the sentence to fine of Rs. 50.00 each. They have now come up in revision to this Court and have challenged the legality of their conviction.

(2.) There was a warrant of arrest against Kunwer Sen issued by the Additional Munsif, Muzaffarnagar. The warrant which was Ex. Ka. 3 was directed to the Nazir to affect the arrest of Kunwer Sen unless a sum of Rs. 602-25 paise was paid by him. The warrant is said to have been handed over in due course to two process servers, Raghubir Singh (P.W. 3) and Shiv Charan, who went to execute the same on 8-4-1965 and had even affected the arrest of Kunwer Sen. It was alleged that after Kunwer Sen was arrested, when he was being brought from his residency he started abusing the process servers and the decree-holder and the other Applicants who were related to him came there and assaulted the process servers and the decree-holder and got Kunwer Sen released. So far as the questions of fact are concerned the Magistrate has found them against the Applicants and so has the Sessions Judge. But what was urged in revision was that the process servers had no authority to arrest Kunwer Sen under the warrant as it was not endorsed to them.

(3.) The warrant as has been mentioned earlier is addressed to the Nazir. The Assistant Nazir of the court Sri Harbans Lal deposed that he gave this warrant to the process servers Shiv Charan and Raghubir Singh. Their names are to be found on the back of the warrant, but there is no endorsement that the warrant was handed over to them for execution. Nor is the place where the names of the two process servers are written signed or initialled by the Nazir or the Assistant Nazir. When a warrant is addressed to a particular officer for execution, it must be executed by him or by some one to whom it may be endorsed by him for the purpose, but the endorsement must appear on the face of the warrant itself and that too under the signature of the person to whom the warrant was originally addressed. In my view, therefore, there should have been a clear endorsement somewhere on the warrant itself by the Nazir that it was being endorsed to Shiv Charan and Raghubir for execution and this endorsement should have been signed by the Nazir. Mere scribbling of the names of the two process servers on the back of the warrant would not amount to endorsing the warrant in their favour. The execution of a warrant of arrest involves the liberty of the judgment debtor. The execution of a civil court warrant against a judgment debtor also involves the question of payment of money. If a judgment debtor pays the amount for which a warrant is issued to the person who presents the warrant to him, he will normally be discharged of the obligation. It must therefore, appear clearly and unequivocally on the face of the warrant itself that the process server who comes to execute the same had authority to receive payment of the money if it is so made by the judgment debtor or otherwise to arrest the judgment-debtor. Any and every body in whose hands the warrant may happen to fall will not be entitled to receive payment of the money or to arrest the judgment-debtor. It is because of this that it is necessary that the person who goes out to execute the warrant must have clear authority from the person to whom it is addressed that he may execute the same.