KADAMALI Vs. EMPEROR

JUDGEMENT

(1.) IN this case accused Kadamali, has been convicted under Section 342, I.P. C, and accused Jatindra Banerjee has been convicted under Secs.342/109, INdian Penal Code. No one appears to oppose the rule. Upon hearing the learned advocate for the accused petitioners, it appears that accused Kadamali was a civil Court peon and accused Jatindra was a decree-holder in a suit in the Munsif's Court. The decree was against the complainant Asutosh Roy. The decree being unsatisfied the decree-holder obtained from the Court a warrant of arrest of the judgment-debtor in execution of the decree. The warrant was made over to the accused Kadamali for execution. The complainant was arrested at about 3 p.m. on the day of occurrence in a betel shop in the (civil Court compound. The peon arrested him on the identification of the accused Jatindra and took him forthwith to the civil Court but as the Munsiff was busy in trying a title suit the judgment-debtor was detained till 5 p.m. when the Munsif was at leisure to attend to the case. The Munsif heard the defence of the judgment- debtor that he was exempted from arrest under Section 135, Sub-section 2, Criminal P.C. Accepting the defence the Munsif ordered his release. Thereafter, the complainant instituted the present complaint against the peon and the decree-holder charging them with wrongfully arresting him and detaining him.

(2.) AS to the wrongful detention, the facts do not support the contention of the prosecution. The judgment, debtor was arrested at about 3 p.m. and forthwith taken to the Munsif's Court. The report of the Munsif shows that he was at the moment busy in hearing a title suit. The peon was therefore justified in keeping the judgment-debtor until 5 o clock when the Munsif was at leisure to attend to the case. There was nothing wrong in detaining him, in the circumstances from 3 p.m. to 5 p.m. see the case of Emperor V/s. Samuel (1907) 30 Mad 179. The next question is whether the peon acted criminally in arresting the judgment-debtor. It is stated that the judgment-debtor protested that he had come to the criminal Court to attend to a case and that therefore he was exempted from arrest under Section 135(2). It is urged by the advocate that it was not the duty of the peon to enquire into the truth of the judgment- debtor's allegation, but that it was his duty to produce him forthwith to the Court of the Munsif which was nearby and let him state his defence to the Court. The defence is supported by the decision in U. Theve V/s. A Kim Fee, 1930 Rang 131. The peon acted in the discharge of his duty in arresting on a valid warrant, the judgment-debtor against whom the decree was pending and in the circumstances, it cannot be said that he acted criminally. He is acquitted of the offence. Accused 2 who is accused of abetting the peon in committing the offence will also be acquitted as the peon committed no offence. The fines, if paid, will be refunded.