The intentional nature of resistance and escape, as well as the lawful issuance of warrants, are crucial elements in determining guilt under the relevant sections of the Penal Code and Criminal P. C.

RAY, C. J.

( 1 ) THE respondent (Lachhu Kamara) was put on trial for baring committed an offence under Section 224, Penal Code, on the allegations that he offered resistance to his lawful apprehension for an offence under Section 447, Penal code, with which he was then charged and that he escaped from the custody of sri K. M. Cbakrabarty, officer-in-charge of Lamptaput Out Post, by whom he was lawfully detained for tbe said offence.

( 2 ) HE was acquitted of this charge by Sri K. K- Samal, Sub-divisional magistrate, Koraput. This appeal by the Government is directed against that order of acquittal. In order to bring the charge home to the accused, it has to be established that the accused intentionally offered resistance to his lawful apprehension for any offence with which he was charged or he escaped from the custody in which he was lawfully detained. It was to be examined whether these elements of the offence have been established in this case. To start with, there are no materials on record to guarantee a finding that his apprehension page 1 of 3 King-Emperor vs. Lachhu Kamara (13. 09. 1949 - ORIHC) that was resisted was a lawful one The case under Section 447 is one in which, according to Section 204, Criminal P. C. , summons has to be issued for the accused's attendance. The material portion of the section reads:

"section 204, (1 ). If in the opinion of a Magistrate taking cognizance of an oseace there is sufficient ground for proceeding, and the case appears to be one in which, according to Go ). 4 of Schedule II, a summons should issue in the first instance, be shall issue his summons for the attendance of the accused. . . . . . . "

( 3 ) AS I have said, according to col. 4 of Schedule II, summons as distinguished from warrant of arrest has to be issued at the first instance. Assuming it waa the first process issued after the Magistrate took cognizance of the offence, it would be beyond his competence. He shall be entitled to issue a warrant not in tbe first instance but only later after the summonses are not complied with. There is no material before us to say that this warrant was issued not at the , first instance but later. We can say that the prosecution has failed to establish that his apprehension was lawful one within the meaning of Section 234.

( 4 ) NEXT, we have to see whether he had escaped or attempted to escape from any custody in which he was lawfully detained for any such offence. The warrant, in execution whereof he was detained, has been printed in the Paper book at pp. 8 and 9. It appears that the Sub-divisional Magistrate, Koraput, issued the warrant under his signature dated 30th March 1945, addressed to the Sub-Inspector of Police, Padwa, to effect arrest of Lachhu Kamara (the respondent) at Nandapur. According to the evidence before us, the Sub- inspector of Police, Padwa, endorsed it to A. S. (P. W. l) within whose Out post Nandapur is situate. He could not execute the warrant and returned it with the following report:

"sir, The warrantee concealed his presence some where, in order to avoid his arrest. Thus the warantee could not be arrested. I pray that warrant of arrest may kind); be issued to arreat tbe warrantee at where he will be found out. Sd. K. M. Chakrabarty, A. S.. , 17th April 1945. "

( 5 ) THIS report to the Sub-Inspector was disposed of by the latter in the manner indicated from the following quotation: "report submitted to the S. D. M. , Koraput, on 20th April 1945 and 3rd May 1945. M. O. S. Sd Illegible. "

( 6 ) IT follows that the first warrant issued by the Sub-divisional Magistrate was returned unexecuted and a more comprehensively worded order of arrest was solicited. Tbe matter was placed before the Sub-divisional Magistrate by the sub-Inspector of Police in pursuance of the report of the A. S. I, After this, we should expect a fresh warrant of arrest to be issued by the Sub-divisional magistrate, but we find none,

"we, however, find the report of P. W. l (K. M. Chkrabatty)