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1952 Supreme(Nagpur) 96
HIGH COURT OF NAGPUR
Sen
NARSAYYA LACHMAYYA – Appellant
Versus
STATE – Respondent
Criminal Revision No. 699 of 1951
Decided on : 27-08-1952
M N Phadke, W B Pendharkar, Advocates
A warrant of arrest issued without complying with the mandatory provisions of Section 112 of the Criminal Procedure Code is invalid.
Headnote:
CRIMINAL LAW - WARRANT OF ARREST - VALIDITY - CONDITIONS PRECEDENT - ORDER UNDER SECTION 112, CRIMINAL PROCEDURE CODE - NECESSITY - FAILURE TO COMPLY - EFFECT - ILLEGALITY - RIGHT OF PRIVATE DEFENCE - APPLICABILITY - SECTION 97, PENAL CODE - INTERPRETATION.
Fact of the Case:
The applicant, Narsayya, was convicted and sentenced to 6 months' rigorous imprisonment under Section 332, Penal Code, for causing hurt to Pandharinath (P.W. 4), a public servant, in execution of his duties. The applicant challenged the validity of the warrant of arrest issued against him, arguing that it was not issued in accordance with the provisions of the Criminal Procedure Code.
Finding of the Court:
The court held that the warrant of arrest issued against the applicant was invalid as the magistrate had failed to comply with the mandatory provisions of Section 112 of the Criminal Procedure Code, which requires the magistrate to pass an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character, and class of sureties (if any) required.
Issues: 1. Whether the warrant of arrest issued against the applicant was valid. 2. Whether the applicant was justified in using force to resist the arrest. 3. Whether the applicant was guilty of causing hurt to Pandharinath.
Ratio Decidendi: 1. The court held that the warrant of arrest was invalid as the magistrate had failed to comply with the mandatory provisions of Section 112 of the Criminal Procedure Code, which requires the magistrate to pass an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character, and class of sureties (if any) required. 2. The court held that the applicant was not justified in using force to resist the arrest as he had no apprehension that grievous hurt would be caused to him. 3. The court held that the applicant was guilty of causing hurt to Pandharinath as the evidence showed that he had kicked and beaten Pandharinath with a stick.
Final Decision: The court set aside the conviction and sentence of the applicant under Section 332 of the Penal Code and convicted him under Section 323 of the Penal Code, sentencing him to pay a fine of Rs. 100-0-0, in default, to suffer one month's rigorous imprisonment.
Sen, J—The applicant Narsayya was convicted and sentenced to 6 months' rigorous imprisonment under Section 332, . Penal Code, for causing hurt to Pandharinath (P.W. 4) a public servant, in execution of his duties. His conviction and sentence were upheld in appeal by the 1st Additional Sessions Judge, Akola.
2. The applicant is a resident of Malipura in Akola. He occupied the first storey of the building belonging to Harroon Seth. Mst. Gangu is his wife and Mst. Laxmi is his daughter. Laxman is his son. On 5-10-1950, separate proceedings under Section 107, Criminal P. C. were started against the applicant, the members of his party and the party of Laxman Dhobi of Nawabpura. An application was made for issuing warrants of arrest. Shri J. Y. Deshmukh, magistrate first class, issued the warrants under Section 114 of the Code for the arrest of the applicant and the members of both the parties. The warrant against the applicant is Ex. P-22. Pandharinath, who was Station Officer to rifle range, Akola, within whose jurisdiction the applicant lived, received the warrant Ex. P-22 and some other warrants for execution on the same date in the evening. He went to the house of the applicant at about 7-30 p.m. for arresting him. He took with him Baburao (P. W. 8) and some constables.
3. The case of the prosecution briefly stated is as follows. The applicant was in his house. Pandharinath told him that there was a warrant of arrest against him and asked him to come out of the house. The applicant came out to the gallery of the first floor and started abusing him. Pandharinath told him that it was no use abusing him as the warrant was issued by a magistrate and he was entrusted with the duty of executing it. The applicant, however, continued to abuse him. A big crowd gathered there. Pandharinath, therefore sent telephonic message to the District Superintendent of Police and the Town Inspector B. P. Dubey (P.W. 13) to send additional police force for help. Narsanna (P.W.2), sub-inspector, Amarpalsingh (P.W. 6), head constable, Abdul Kuddus (P.W. 3), head constable, and other police officials went to the spot. Later Abdul Rahim (P.W. 5) and B. P. Dubey also proceeded to the spot. The latter told the applicant that there was a warrant against him and that he should surrender. The applicant persisted in abusing them and stones were thrown from his house. The police officials were hit by the stones. Dubey asked Pandharinath to break open the door and effect his arrest. Pandharinath went up followed by S. I. Deshmukh, Abdul Kuddus, Amarpalsingh and some constables. The door of the upper storey was closed from inside. He knocked the door for about ten to fifteen minutes. The applicant, however, suddenly opened the door and gave a kick to him with the result that he rolled down the staircase. Thereafter the door of the house was opened by means of a hammer. Pandharinath with some persons entered the room. The applicant attacked him with a stick. The members of his family had also joined in attacking the police party. The applicant was arrested and brought down. As he had injuries, he was taken to the hospital in a bus. Pandharinath made a report Ex. P-1 at 10.45 p.m.
4. Pandharinath produced a cane article A and a piece of stick article B. They were duly seized. As Pandharinath, S. I. Narsanna, head constables Abdul Kuddus and Amarpalsingh, Namdeo, Pundlik, Newritti, Sheikh Haider, Kammddin, Ramchandra and Sitaram had injuries, they were sent to the hospital for examination. The injury reports are Exs. P-4 to P-15. Laxman, Narsamma, Laxmi and Nirmala were examined and the injury reports are Exs. P-15, P-16, P-17 and P-19. The injury report of the applicant is Ex. P-23. As he had fractures, an X-ray photograph was taken on 7-10-1950 by Shri G. S. Nakade (P. W. 11), Assistant Medical Officer. Gangu, Laxman, Narasamma and Laxmi were also prosecuted along with the applicant. They were charged under Section 353, but were acquitted as the magistrate di
