SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS; NITYANANDA DAS; SARAT CHANDRA GHOSH Vs. BARODA KANTA; MANORANJAN MAJUMDAR

JUDGEMENT

(1.) In this case one Baroda Kanta Majumdar was placed on his trial on a charge of offering resistance to his lawful apprehension and of escaping from lawful custody, offenses punishable under Section 285 B of the Indian Penal Code. Two co accused, his son Monoranjan and one Somiran, were charged with rescuing Baroda from lawful custody. All three were further charged with assaulting the peor, Nawab Ali, whose duty it was to arrest or assist the Bailiff in arresting Baroda Kanta. Somiran was further charged with assaulting the Bailiff and with removing the peon's badge. The preterit appeal is directed against the order or acquittal made in the case of all three by the Fourth Presidency Magistrate.

(2.) The accused Baroda Kanta Majumdar owed seme Rs. 700 under a Small Cause Count decree obtained against him by one Sarat Chandra Ghosh. In execution of this decree a warrant for the arrest of Barada Kanta was issued. On the morning of the 13 July, the decree-holder, Bailiff Nityanauda Das and peon, Nawab Ali, proceeded to house No. 14, Jagurnath Sur Lane, in which Baroda with his wife and son occupied two rooms, in order to execute this warrant. That the decree holder and his party went to arrest Baroda Kanta is not disputed but while the prosecution witnesses say that Baroda came outside, was there arrestee, rescued and escaped, the defense says that Baroda was arrested within one of his two rooms, there struggled and made resistance, and was assisted by his son, Manoranjan, in effecting his escape. It is further said that in this room", there was a lady, presumably Baroda's wife. The Magistrate has apparently accepted the case for the defense and, finding that the warrant was not shown to Baroda, and, that the Bailiff and decree holder were not entitled to enter the room, holds that Baroda was entitled to resist and his son entitled to assist him. On these grounds he acquits Baroda and his son. The third accused he acquits on the ground that he was not present. Now it is not necessary that a Bailiff executing a Civil Court warrant should in the first instance show the warrant. It is sufficient that he should apprise the person to be arrested of the contents of tie warrant and show it if desired. [Rajani Kunio pal v. Emperor 5 C. W. N. 843, and Abdul Rahaman Sahib, In re 24, Ind. Cas. 175 : 15 Cr., L. J. 439 : 1 L. W. 500, But it is quite clear in this case that the Bailiff was armed with the warrant issued, and it is further clear that Baroda well knew the purpose of tie decree-holder and the Bailiff's visit. There could be no reason why the Bailiff should seek to withhold or conceal his warrant, and we have no doubt on the evidence that the warrant was in fast shown.

(3.) Even if we were to believe that the Bailiff and the decree holder followed the judgment debtor into the room there was no reason why they should not do so. This was no case of breaking open an outer door and the room itself was the outer of the two rooms occupied by Barcda. The presence of a woman therein was not even suggested to any one of the prosecution witnesses.