RAJANI KANTA SAHA Vs. EMPEROR

JUDGEMENT

(1.) In this case, it appears that there was a certain judgment-debtor and the decree-holder was minded to have execution against his person in enforcement of her decree. The decree- holder applied to the Munsif by a petition which was of a thoroughly muddled character. What she really wanted was that the Munsif should make an order under Sub-rule (2), Rule 22, Order 21, Civil P.C., to the effect that a warrant for the arrest of the judgment-debtor should issue at once notwithstanding that more than a year had elapsed since the date of the decree; and, if the procedure of the Munsif had not been in accordance with this muddle-headed petition, the form of the order which he would have made would have been to record his reasons under Sub-rule (2), Rule 22 and direct that a warrant of arrest do issue under Rule 37. In effect what he did was this : He directed simultaneous issue of three things : (1) a notice under Rule 22, (2) a notice to show cause why the judgment-debtor should not be arrested and (3) a warrant for the arrest of the judgment-debtor. He issued all these abreast and the Court peon proceeded to carry out these processes. The peon got to a place in a certain road where he saw the judgment-debtor whose name is Rajani Kanta Saha. The judgment-debtor was identified by some one on behalf of the decree-holder. The peon read over the notices and the warrant of arrest to Rajani, demanded the decretal amount and on his refusal to pay, arrested him. Thereupon Rajani shouted for help and he and his co-accused between them forcibly effected Rajani's rescue from the hands of the peon. It does not appear that very much violence was used on the peon certainly nothing that exceeded simple hurt. In these circumstances the accused have been found guilty.

(2.) I omit the question of conviction of theft under Section 379 I.P.C. The contention on behalf of the petitioner is that the warrant of arrest was entirely illegal, that they were entitled to resist its execution, that in executing it the peon was not discharging a legal duty but was really committing trespass and that consequently no charge under Section 225-B or Section 353 will lie. Of course it is admitted that if an assault had been made upon the peon which could not be justified by he principle of private defence, then no doubt a case would lie under Section 353 , but no such case as that is made against these people.

(3.) There can be no doubt that this warrant for the arrest of Rajani must be either good or bad in the sense that it either authorizes the peon to effect the arrest in which case he is entitled to the protection given by Secs.225-B and 353, I.P.C. or it is a document notwithstanding which the peon himself was merely committing trespass when he proceeded to execute the warrant. That matter is put clearly in the judgment of the Full Bench in the case of Assam V/s. Sahebdulla where reference is made to what was said in an English case by Abbot, C.J.; It is obvious that if the act of the Justice issuing a warrant be invalid on the ground of such an objection as the present the warrant will who act without any authority a constable who arrests, and a goaler who receives a felon will each be a trespasser; resistance to them will be lawful; everything done by either of them will be unlawful and a constable, or persons aiding him may, in possible instance , become amenable even to a charge of murder for acting under an authority which they reasonably considered Themselves bound to obey, and of the invalidity whereof they are wholly ignorant.