STATE Vs. BANARSILAL

JUDGEMENT

(1.) THIS is an appeal against an order of acquittal dated 3rd March, 1952, passed by the learned Sessions Judge of Jhunjhunu, on appeal against the judgment of conviction of the accused for an offence under sec. 457 of the Indian Penal Code made by the Sub-Divisional Magistrate, Khetri, dated 29th November, 1951.

(2.) THE facts are not disputed. In execution of a warrant issued by the Civil Judge, Jhunjhunu, on 12th December, 1950, in proceedings for execution of a decree in favour of Madanlal against Banarsilal certain moveable properties were attached by a process-server on 14th December, 1950. It is alleged that the property remained in a godown, and the judgment-debtor respondent got into the godown by breaking open a window on the night of 18th January, 1951, and removed some of the goods which had been attached. THE accused denied the charge, but he was convicted by the learned Sub-Divional Magistrate, Khetri for an offence under sec. 457 of the Indian Penal Code, and sentenced to undergo 2 months' rigorous imprisonment and a fine of Rs. 100/ -. On appeal, the learned Sessions Judge acquitted the accused on the ground that the warrant in pursuance whereof attachment of the property had been made was invalid, and the attachment of the property was illegal. THE warrant was issued on a printed form directing Nazir/amin to execute the warrant. THEre was no Amin attached to the Court, and warrant was handed over to the process-server, Motaram, who executed it, but there was no endorsement in favour of Motaram by the Nazir of the Court. THE warrant was thus defective on two grounds. Firstly, while the printed form mentioned both Nazir/amin as the persons to whom it was addressed, the name of the Amin was not scored out so as to make it specifically directed to the Nazir. THE other defect was that it was not endorsed to Motaram process-server for service. Order XXI, Rule 24 (2) of the Code of Civil Procedure provides that every process shall bear date, the day on which it is issued, and shall be signed by the Judge or such officer as the court may appoint in this behalf and shall be sealed with the seal of the court and delivered to the proper officer to be executed. Delivery to proper officer has been interpreted in more than one authority as having been endorsed to a proper officer and a warrant in which the name of the officer is not mentioned either by office or by name is not a legal warrant. Reference may be made to Fattu vs. Emberor (1) (AIR, 1932 All. 692.) and Chelli Latcnanna vs. Emperor (2) (AIR, 1942 Patna, 480. ). In the present case it was not addressed to any one officer but was addressed to Nazir-Amin, and, therefore, unless the name of the one or the other was scored out, it was not a warrant directed to any one particular officer. Again, while there is some authority for the proposition that the officer to whom the warrant is given for execution can delegate his subordinates, such delegation must, by very nature of things, be by a proper endorsement. A delivery by and unaccompanied by endorsement sutlers from the same defect as if it had not been addressed to the proper process server. It has also been held by this Court in Nandsingh vs. THE State (3) (1951 RLW, 131.) that the omission of the name of the person authorised to execute the warrant makes the warrant illegal.