PANGIR BAJGIR GOSAIN Vs. STATE

JUDGEMENT

(1.) THIS case was referred to a Division Bench by one of us sitting singly. The facts of the case have been given in the order of reference and we need not repeat them over again.

(2.) THE accused Pangir was convicted by the court f the Sub-divisional Magistrate, Nohar on the 31st of January, 1958 under Sections 353 and 225-B I. P. C His convictions were confirmed on appeal by the Additional Sessions Judge, Ganganagar on the 13th of March, 1958. It was held by both the courts that the accused Pangir obstructed Ganpat Singh. Head Constable of Police while the latter was taking Mst. Lichhma with him after having arrested her in pursuance of a warrant issued by the Sub-divisional Magistrate of Nohar and he rescued her from the custody of Ganpat Singh. It was also held that he used criminal force and assaulted the Police officer while lie was performing his duty. In this appeal, it is contended that the warrant issued by the magistrate was illegal inasmuch as it did not bear the seal of the court and the action of the accused in obstructing and in rescuing Mst. Lichhma was therefore not punishable under Sections 353 and 225-B I. P. C. In support of the contention, the decisions in-1. Alter Caufman v. Government of Bombay ILR 18 Bom 636; 2. In re James Hastings 9 Bom HC 154; 3. Mahajan Sheikh v. Emperor ILR 42 Gal 708 : AIR 1915 Cal 737: 4. In re Abdul Rahim Beg AIR 1920 Mad 352 (1) and 5. Dasondhi v. Emperor AIR 1928 Lah 332 (1) were relied upon, and in reply to this contention of the counsel of the appellant, the decision in Abdul Kadir v. The Crown 10 Pun Re 23 was cited. The point at issue is whether the formality of seal on a warrant issued under Section 75 of the Code of Criminal Procedure is to be regarded as mandatory and the warrant is to be treated invalid and void to a case where such a seal is not affixed thereon. At common law in England affixation of a seal is considered to be very necessary and the absence of a seal on a warrant is regarded as fatal for its validity. Section 75 Cri. P. C. enacts the principle of the English common law, and provides that-Every warrant of arrest issued by a Court under this Code shall be in. writing, signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court. A warrant of arrest is to be read out or its purport conveyed by the officer executing it to the person who is arrested and if such person makes a demand, it has to be shown to him under Section 80 of the Criminal Procedure Code. In order that the person arrested may satisfy himself regarding the authenticity of a warrant it seems necessary that a seal of the court should appear on it. In a number pi cases, it has been held by the various High Courts in India that absence of a seal on a warrant of arrest renders it void and invalid and obstruction to the execution of such a warrant of arrest is not punishable by Sections 225 and 353 I. P. C.

(3.) IN ILR 18 Bom 636 the petitioner Alter Caufman was arrested by the Police in pursuance of a warrant of arrest issued by the Governor of Bombay under Act No. Ill of 1864. The petitioner was a foreigner and he in spite of an order of the Government to leave India, remained at Bombay. A warrant of arrest was therefore issued and he was arrested in execution of the same. An application for a writ of habeas corpus was filed in the High Court of Bombay and a rule was issued for the production of the petitioner before the Court. The warrant under which the petitioner was arrested was defective inter alia for the reason that it did not bear a seal on it. The High Court of Bombay relying on the decision In re. Phipps (1863) 11 WR 730 and 9 Bom HC 154 held that the warrant was void for that reason, The Act under which the warrant was issued did not prescribe any form of the warrant and it was held that the Criminal Procedure Code applied to a warrant issued under the said Act and the requirements of signing and sealing of the warrant under the Code must have been followed in that case. In view of the defect of there being no seal on the warrant, the arrest of the petitioner was held to be illegal and he was set at liberty.