1. This is a reference made by the learned Sessions Judge of Aligarh recommending to this Court to set aside the convictions and sentences of the petitioners under Sections 147, 353 and 225, I.P.C. but instead to convict them under Section 352, I.P.C. and to impose on each of them a line of Rs. 25 or in default rigorous imprisonment for a period of three weeks. Prom the order of reference it appears that Lachhmi Narain, Pearey Lal, Budh Sen, son of Chandar Bhan, Budh Sen, son of Chhatar Mal, Surji, Kanhaiya, Ganga Ra, and Pita were convicted by a Magistrate under Sections 147, 353 and 225, I.P.C. upon the ground that they forcibly rescued one Kaley from the custody of four police constables who had arrested him in execution of a warrant issued by a Bench of Honorary Magistrates in a case in which he was charged with offences under Sections 323 and 426, I.P.C. There was a scuffle between these men and the constables and the coat of one of the constables was torn.
2. The learned Judge has made his reference because he considers that the custody was illegal and that for this reason those who were convicted could not have committed offences punishable under Sections 225 and 353, I.P.C. His argument is that Kaley was charged with bailable offences and that for this reason the Magistrate should have issued what he describes as a bailable warrant and not a non-bailable warrant. I cannot find that the terms bailable warrant and non-bailable warrant are anywhere employed in the Code of Criminal Procedure. There are bailable offences and non-bailable offences. There are also offences in respect of which a summons' should issue in the first instance or a warrant should ordinarily issue in the first instance. It is true that a summons should ordinarily issue in the first instance to a. person who is alleged to have committed an offence under Section 323 or an offence under Section 426, I.P.C. but under Section 90 of that Code if the Court finds it necessary in some circumstances to issue a warrant it may do so.
3. There is a provision in Section 76, Criminal P.C. that a Court which issues a warrant may direct the person to whom that warrant is issued to take security from the person to be arrested and to release him if such security is supplied. It is presumably a warrant to which this Section has been applied which the learned Judge describes as a bailable warrant. There is nothing in Section 90, Criminal P.C. which says that a warrant issued under that Section must be accompanied by a direction under Section 76. Whether such a direction is given or not is entirely in the discretion of the Court. There is nothing in the Code anywhere which says that a warrant issued under Section 90 to a person who is charged with a bailable offence must contain an endorsement under Section 76. There is no force in the reasoning of the learned Judge. It has been urged before me that the sentences should be reduced. They are sentences of imprisonment only for periods of two months and I see no reason to interfere. The reference is rejected. The persons concerned should surrender to their bail and serve out their sentences. The papers may be returned to the Court below.