EMPEROR Vs. JANKI PRASAD

JUDGEMENT

(1.) This is a Government appeal against an order of acquittal passed by the Sessions Judge on appeal from an order of conviction passed by a first class magistrate against the accused persons Janki Prasad and Lchhman, under which there persons were sentenced to three months rigorous imprisonment and a fine of Rs. 100 each, for offences under Section 353/225 of the Indian Penal Code. The case comes from the town of Phaphund. From the record of case No. 17, King- Emperor v. Kedar Nath, Ram Dat and Bhure &c, of the court of the magistrate in the year 1920, and from the record of case No. 11 of 1920, Baehchan Lal v. Wali Muhammad, it appears that on the 10th of Decembtr, 1919, a quarrel took place between a Brahman named Baehchan Lal and a constable named Wali Muhammad attached to the outpost of the local police station. It arose over the drinking of water at a well when Wuli Muhammad was washing his teeth by the side of the well. Apparently the two men came to blows and Baehchan Lal at once made a complaint in court. On the same date a report was made by Nazir Husain, the head constable at the police station, which charged Kedar Nath, Ram Dat, Bhure and Baehchan Lal and two other persons with having committed the offences of criminal trespass and rioting, in that after the first squabble between Wali Muhammad and Baehchan Lal the latter had collected some friends, had gone to the police outpost, had dragged Wali Muhammad out of it and beaten him. The inquiry in the latter case was taken up by the Sub-Inspector Muhammad Mohsin Jafri, and on the 11th of December, he issued to Nazir Husain, head constable, written orders under Section 56 of the Code of Criminal Procedure directing him to arrest Bhure and Ram Dat as well as others for the offences charged against them. The same magistrate tried these two cases and also the present case. Ihe cases were apparently heard together and judgments were delivered on the same date. In the first case the charge against Wali Muhammad of assaulting Baehchan Lal was dismissed, and in the second case the charge against Bhure, Ram Dat, and Baehchan Lal of the offence under Section 147 of the Indian Penal Code was also dismissed. The magistrate was of opinion that even if Bachchan Lal and his friends had gone to the outpost after the first quarrel with Wali Muhammad, they went really to make a complaint, and that the charge against them had been exaggerated. The present case, the third one, arises in this way, out of the first two, The case for the prosecution is that on the 22nd of December last Nazir Husain and Lallu Ram, head constables, found Bhure and Ram Dat sitting at the shop of Janki Prasad and Lachhman, that they arrested them at the shop, showed them the written orders under Section 56 of the Code of Criminal Procedure and took them out on to the road, that thereupon Lachhmau, Janki Prasad and some of their friends advanced angrily upon them, insisted upon the men being released, finally pushed aside the police with their hand and the men escaped and ran back to their shop. Nazir Husain sent to the outpost, which was some 50 or 60 paces away for some constables. On their arrival he wrote a report on a piece of paper and sent it on to the police station to the Sub-Inspector. The Sub-Inspector at once proceeded to the spot and made an inquiry. Finally he sent up Janki Prasad and Lachhman and two other persons for trial of the offence of having rescued Ram Dat and Bhure from lawful custody.

(2.) The defence case is as follows: Janki Prasad stated that on the clay in question the head constable came to him at his shop telling him that the Sub- Inspector desired his attendance at the police station in order that he might bring his influence to bear upon Bachchan Lal to settle the dispute whichhad arisen between Bachchan Lal and Wali Muhammad ; that he (Janki Prasad) refused to go, declining to interfere in a matter with which he had no concern, that the head constable abused him, that he returned it with compliments and the" head constable went away; that very shortly after, the Sub-Inspector arrived upon the scene armed with a gun, that he called for the man who had been impertinent to the police, that he abused Janki Prasad and the latter in return abused him, whereupon the Sub-Inspector deliberately raised his gun and fired point blank at him and that the shot would have taken effect had not the head constable struck up the gun with his hand.

(3.) The magistrate took evidence for both sides and finally came to the conclusion that the prosecution story was true, that the story told by Janki Prasad was improbable and unworthy of belief, and he convicted the accused and sentenced them as mentioned above. It will be remembered that he was the same Magistrate who acquitted Ram Dat and Bhure in the charge which had been preferred against them by Wali Muhammad and Nazir Husain. We may note here that two other accused were acquitted because their names were not entered in the first report, i.e., the report which was written by Nazir Husain at the scene of the occurrence and sent to the police station. Janki Prasad and Lachhman appealed to the learned Sessions Judge, who has acquitted them without going into the actual facts of the case at all. His judgment sets out the case for the prosecution and the case for the defence. He then proceeds to say as follows: "Now in this appeal we have to see whether Nazir Husain had any authority to arrest Bhure and Ram Dat. The record shows that there is no warrant for arrest of Bhure and Ram Dat, nor is there any order of the thanadar to arrest Bhure and Ram Dat. The prosecution failed to prove that there was any such warrant or order. There is no secondary evidence on the record which would satisfactorily prove that there was any warrant for arrest of Bhure and Ram Dat, nor is there any satisfactory evidence to show that Ram Dat and Bhure had been accused of any cognizable offence so that a police officer could arrest them without any warrant." Thereupon the learned Sessions Judge quotes the case reported in I.L.P., 26 Calc, 630, which really does not govern the facts of the present case at all. He then continues to say: "The deposition of Nazir Husain would show that he arrested Bhure and Ram Dat and then showed them the warrant. In Satish Chandra Rai v. Jodu Nandan Singh (1899) I.L.R. 26 Calc. 748 Prinsep and Hill, JJ., held that an arrest by a police officer without notifying the substance of the warrant to the person against whom the warrant is issued, as required by Section 80 of the Code of Criminal Procedure, is not a lawful arrest, and resistance to such arrest is not an offence under Section 225B of the Indian Penal Code. As I have shown above, there is no warrant on the record in this case not is there satisfactory evidence of any warrant, and the evidence of Nazir Husain also shows that he did not notify the substance of the warrant before he arrested the persons. So I do not see how the offence under Section 353/225 of the Indian Penal Code could have been committed, and how the accused could have been convicted of this. There has not been any application in writing by the prosecution that I should either get the original warrant or get secondary evidence about it or should send the case to the court below to get the warrant in original, or secondary evidence about it, so I do not think I would be justified in doing anything of the kind, for I do not think the Judge s duty to be to procure evidence which was never produced by the prosecution."