KALLAN BEG Vs. EMPEROR

JUDGEMENT

(1.) This is an application for revision of an order of the Sessions-Judge, Bareilly, in appeal from an order of a Magistrate of that district convicting the applicants under Secs.147, 332/148 and 225-B/l49, I.P.C. The Magistrate sentenced each of the accused to nine months R. I. On appeal the learned Sessions Judge reduced the sentences of some to three months R. I., and of others to six months R. I. The gist of the offence with which the applicants were charged is that on 23 February 1935 they attacked two constables and a few chaukidars, who had gone to village Parewa to search Mt. Mohania and to bring her to the Court of the Magistrate who had issued a warrant under Section 100, Criminal P.C., attempted to prevent the constables from taking Mt. Mohania. One of the applicants, namely Kalian Beg, has since died, and his case requires no further consideration. The remaining 11 accused are Kurmi and Chamar residents of village Parewa. The facts found by both the lower Courts may be briefly stated. Rammu Chamar of village Ugethi, district Budaun, made an application to a Magistrate of his district complaining that his wife, Mt. Mohania, had been enticed away by Mohan Chamar, a resident of village Parewa. The application was supported by an affidavit, in which it was stated that Mohan intended to sell Mt. Mohania somewhere in the Punjab contrary to the wishes of the woman. Rammu prayed that a search warrant under Section 100, Criminal P.C., be issued and Mt. Mohania be brought to the Court. A search warrant was issued and sent to the Sub-Inspector in charge of thana Bhojepura," which is in Bareilly district. Village Parewa, where Mohan resided, is within the police circle Bhoje-pura. The warrant was sent through the District Magistrate and the Superintendent of Police, Bareilly. It was received at Bhojepura on 21st February 1935, when the Sub-Inspector in charge of the thana was on leave. The head-constable who acted for him received the warrant and deputed two constables, Safdar Ali and Vakil Ahmad, to proceed to village Parewa and make a search for Mb. Mohania in the house of Mohan and to take her as directed in the warrant.

(2.) The two constables, accompanied by Rammu and two other Chamars of Budaun and two chaukidars, reached village Parewa on the morning of the 23rd. When they arrived at Mohan's house Mt. Mohania was found warming herself over a fire in the courtyard. The constables took her into custody and dragged her for about 80 or 90 yards. It was admitted on behalf of the prosecution that she was unwilling to leave Mohan's place and that she shouted for help. A large number of villagers were attracted to the scene and attempted to rescue her front police custody. In the scuffle which ensued injuries were caused to the con-stables, one chaukidar and two of the three Chamars of the Budaun District. Among the villagers Kalian Beg, who has since died, and the applicant Khemi Karan also received injuries. It has-been found by the lower Courts that before the conflict between the villagers and the police party assumed serious proportion some villagers appeased the rest of them, saying that the police were taking Mt. Mohania under a warrant, which was in order, and that thereafter the villagers did their best to smooth-matters over. On the report of the constables the applicants were prosecuted for the offences already mentioned. The story told by the accused was that the police arrived at about 4 or 5 in the morning and by mistake entered the house of Baldeo Chamar, whom they questioned as to where Mt. Mohania was. After some altercation Baldeo Chamar was assaulted by the police. The suggestion on behalf of the defence was that whatever injuries were caused to the police party were the result of the exercise by the applicants of their right of private defence. Neither of the two Courts below has accepted the case for the defence. The evidence adduced on behalf of the prosecution was in the main accepted. The Magistrate acquitted some of the accused before him and convicted the applicants, against whom he found the case fully established. The. learned Sessions Judge has substantially taken the same view.

(3.) I have been addressed at some length) by the learned advocate who appeared for the applicants. I am not satisfied that there is any such flaw in the findings arrived at by the lower Courts as would justify interference in revision with the findings of fact reached by those Courts. The conviction was also assailed on a point of law which had been raised in the Courts below. It has been found by the Magistrate, and the learned Sessions Judge seems to agree with him, that Rammu obtained the warrant of search on a misrepresentation of facts. It was not a fact that Mt. Mohania had been recently enticed away by Mohan and was being detained by him against her consent. On the contrary the evidence showed that she lived with Mohan for a considerable length of time and gave birth to a child while living in his house. It. is pointed out that Mt. Mohania, far from being unwilling to live with Mohan, created a scene when she was being removed by the police from his house. It its argued that the police were not justified in dragging her and they ought to have known from what they saw for themselves that she was not confined under such circumstances that the confinement amounted to an offence. Reference is made in this connection to the terms of Section 100, Criminal P.C., which provides that if a Magistrate, such as is therein mentioned, has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search the person so confined, and the person, if found, shall be immediately taken before the Magistrate. Stress is laid on the words "so confined," and it is contended that if the person to whom a warrant is issued for execution finds that the person in question is not confined so as to make the confinement an offence, he should refrain from executing the warrant. I do not think that this contention has force. The words relied on should be taken in the context in which they occur, and should be taken to imply "believed to be so confined." The section, which in this respect is not happily worded, lays down that it is for the Magistrate to find whether there are reasons for believing that any person is in wrongful confinement; and if he is so satisfied land issues a search warrant, the police officer, to whom the warrant is addressed, has merely to execute it according to its tenor. He must search for the person believed by the Magistrate to be unlawfully detained. The officer charged with the execution of the warrant is not expected to disregard the finding of the {Magistrate, and all that he is to do is to search for the person in question and to: take him to the Magistrate.