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1923 Supreme(Cal) 475
CALCUTTA HIGH COURT
Lancelot Sanderson, C.J, Thomas Richardson, J., Panton, J., N.R. Chatterjea, J., Buckland, J.
Government of Assam - Appellant
Versus
Sahebulla & Ors. - Respondent
Decided On : 11-06-1923
Headnote:
Warrant - Witness - CrPC Section 90 - The Court held that the requirement to record reasons in writing under Section 90 of the CrPC is directory, not mandatory. The warrant issued without recording reasons in writing is valid, as long as the warrant itself states the reasons for its issuance and the Magistrate had sufficient materials to justify the issuance of a warrant.
Fact of the Case:
A Magistrate issued a warrant for the arrest of a woman to compel her attendance as a witness in a criminal case. The warrant was in the prescribed form, but the Magistrate did not record his reasons in writing on the order-sheet of the case. The accused persons were charged with resisting the execution of the warrant, and the Magistrate acquitted them on the ground that the warrant was invalid because the Magistrate had not recorded his reasons in writing.
Finding of the Court:
The Court held that the requirement to record reasons in writing under Section 90 of the CrPC is directory, not mandatory. The warrant issued without recording reasons in writing is valid, as long as the warrant itself states the reasons for its issuance and the Magistrate had sufficient materials to justify the issuance of a warrant.
Issues: Whether the requirement to record reasons in writing under Section 90 of the CrPC is mandatory or directory. Whether the warrant issued without recording reasons in writing is valid.
Ratio Decidendi: The Court applied the principle that statutory provisions are generally directory unless the consequences of non-compliance are serious or the provision is intended to protect the rights of individuals. The Court found that the purpose of the requirement to record reasons in writing is to ensure deliberation by the Magistrate and to inform the person against whom the warrant is issued of the grounds for its issuance. However, the Court held that these purposes are sufficiently served by the warrant itself, which states the reasons for its issuance. The Court also considered the potential consequences of holding that the warrant is invalid, which would mean that the Police Officer executing the warrant would be acting without authority and could be liable for trespass or assault. The Court concluded that these consequences are too serious and that the provision is therefore directory.
Final Decision: The Court answered the question referred to the Full Bench in the affirmative, holding that the warrant issued without recording reasons in writing is valid. The Court set aside the acquittal of the accused persons and remanded the case to the learned Judges who referred the case to the Full Bench for disposal.
JUDGMENT
Lancelot Sanderson, C.J. - This is a Reference by two learned judges of this Court sitting as a Criminal Appeal Bench, and the question referred is--"If a Court u/s 90, Criminal Procedure Code, issues a warrant for the arrest of any person as therein specified but does not first record its reasons in writing, has the warrant so issued any legal force and effect?"
2. In my opinion it is necessary, and, at all events, advisable to state the facts which gave rise to this Reference. One Saifaiuddin took criminal proceedings against certain persons u/s 498 of the Indian Penal Code, alleging that such persons had enticed away Sanaka Bibi, who was alleged to be the complainant's wife. A warrant was issued by the Extra Assistant Commissioner, who was a First Class Magistrate, for the arrest of Sanaka Bibi in order that she might be brought before the Court as a witness in these proceedings. The warrant was in the following form:
To--The Police Officer in charge of thana Salmora.
3. Whereas complaint has been made before me that Kancha Sheik of Dimatola has committed the offence u/s 498, Indian Penal Code, and it appears likely that Sanaka Bibi of Dimatola can give evidence concerning the said complaint an d whereas I have good and sufficient reason to believe that she will not attend as a witness on the hearing of the said complaint unless compelled to do so:
4. This is to authorise and require you to arrest the said Sanaka Bibi and on the 15th May to bring her before this Court. You will be competent to enlarge the witness on bail of Rs. 50 to make her appear in Court on the date fixed, to be examined touching the offence complained of.
5. Given under my hand and the seal of the Court this the 27th day of April 1922.
Sd, D. Sarma, Magistrate, First Class.
6. When the Police Officers went to execute the warrant at the house of Sahebulla, who was the father of the woman Sanaka, it was alleged that an attack was made upon the Police Officers by Sahebulla and others. Consequently, proceedings were instituted u/s 149, Indian Penal Code, against 29 persons; and the common object of the Unlawful assembly alleged was to resist the execution of legal process, viz., the warrant.
7. The learned Commissioner who tried the case discharged accused Nos. 13 to 29 u/s 253 of the Code of Criminal Procedure.
8. After the evidence, in the case had been finished the learned Pleader for the defence, in concluding his argument, took the point that the Magistrate who issued the warrant did not record his reasons in writing before he issued the warrant and relied upon the decision in Sukheswar Phukan v. Emperor 11 Ind. Cas. 593 : 38 C. 789 : 12 Cri. L.J. (sic) : 15 C.W.N. 1001 : 15 C.L.J. 186. The learned Pleader argued that the process was illegal and that consequently the offence charged against the accused had not been committed. The Magistrate was of opinion that he must hold, in view of the High Court decision to which I have already referred, that the process was invalid and that the accused had not committed the offence of being members of an unlawful assembly the common object of which was resistance to legal process.
9. Thereupon, the Government of Assam appealed to this Court.
10. The appeal was dismissed as regards 11 of the respondents, but it was admitted against one, namely, Sahebulla. The course was taken, as we were informed by the learned Advocate-General, for the purpose of raising the point which is now in issue.
11. My learned brothers, who were then sitting as the Criminal Appeal Bench, disagreed with the decision in the case of Sukheswar Phukan v. Emperor 11 Ind. Cas. 593 : 38 C. 789 : 12 Cri. L.J. (sic) : 15 C.W.N. 1001 : 15 C.L.J. 186, and consequently they referred the matter to the Pull Bench.
12. Those are
