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Queen-empress Vs. Janki Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All293
AppellantQueen-empress
RespondentJanki Prasad and ors.
Excerpt:
.....(penal code), sections 99, 353 - warrant of arrest in execution of a decree only initialled by proper officer--civil procedure code, sections 2, 251--'signed'--right of private defence. - - 2. it cannot be disputed that the warrant fulfilled the requirements of section 251, except in one particular, to which exception is taken, namely, that it was signed with the munsarim's initials and not his full name, and it is contended that the warrant was, in consequence, bad, and the officer could not legally execute it, and consequently there was no offence committed under section 353. 3. i cannot allow this contention. he would in fact have failed in his duty in not executing it; the officer was acting under section 353 of the indian penal code, in good faith, under colour of his office...........the initials of the munsarim of the court, sealed with the seal of the court, and delivered to the proper officer for execution, who was the officer resisted.2. it cannot be disputed that the warrant fulfilled the requirements of section 251, except in one particular, to which exception is taken, namely, that it was signed with the munsarim's initials and not his full name, and it is contended that the warrant was, in consequence, bad, and the officer could not legally execute it, and consequently there was no offence committed under section 353.3. i cannot allow this contention. section 251 directs that the warrant shall be signed by the judge or such officer as the court appoints in this behalf. section 2, referring to the word 'signed,' is to this effect: ''signed' includes marked,.....
Judgment:

Oldfield, J.

1. This is an application for revision of a conviction under Section 353, Indian Penal Code, for assaulting a public servant in executing a warrant of arrest. The warrant was issued for the arrest of a debtor under the provisions of Section 251, Civil Procedure Code. It was signed with the initials of the Munsarim of the Court, sealed with the seal of the Court, and delivered to the proper officer for execution, who was the officer resisted.

2. It cannot be disputed that the warrant fulfilled the requirements of Section 251, except in one particular, to which exception is taken, namely, that it was signed with the Munsarim's initials and not his full name, and it is contended that the warrant was, in consequence, bad, and the officer could not legally execute it, and consequently there was no offence committed under Section 353.

3. I cannot allow this contention. Section 251 directs that the warrant shall be signed by the Judge or such officer as the Court appoints in this behalf. Section 2, referring to the word 'signed,' is to this effect: ''Signed' includes marked, when the person making the mark is unable to sign his name; it also includes stamped with the name of the person referred to.' This paragraphia not very explicit; but assuming it means that the person signing should, if able to write, write his name in full--and certainly it is proper that this should be done in the case of a warrant--I do not hold that because the signature on the warrant is confined to the initials of the name, it was not the duty of the officer to execute it--and referring to Section 353 of the Penal Code under which the conviction has been made, that is really the question here--and whether the warrant was such a warrant as it was the duty of the officer receiving it to execute.

4. I think it was. It was in all other respects in form, and in the particular of the signature it bore what was intended to be the signature of the proper officer, and it bore the seal of the Court, and it was delivered to the proper officer to execute, who received it from the officer authorized to issue the warrant as the warrant of the Court, and I think it became the duty of the officer to whom it was delivered to execute it. He would in fact have failed in his duty in not executing it; and any resistance to him will be resistance to a public servant in the execution of his duty as such. The officer was acting under Section 353 of the Indian Penal Code, in good faith, under colour of his office. I may notice as bearing on the question that the act of the accused does not cease to be an offence on the ground that the act was done in the exercise of the right of private defence, as there is no such right under Section 99, Indian Penal Code, against an act done or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. Looking to the facts of the case, I am of opinion that the option of a fine may be given, and I alter the sentence in each case to a fine of Rs. 10, or rigorous imprisonment for one month.


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