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Kallan Beg and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1936All306
AppellantKallan Beg and ors.
.....character from that taken by the rest of the accused, but because they were men of better position in..........sell mt. mohania somewhere in the punjab contrary to the wishes of the woman. rammu prayed that a search warrant under section 100, criminal p.c., be issued and mt. mohania be brought to the court. a search warrant was issued and sent to the sub-inspector in charge of thana bhojepura,' which is in bareilly district. village parewa, where mohan resided, is within the police circle bhoje-pura. the warrant was sent through the district magistrate and the superintendent of police, bareilly. it was received at bhojepura on 21st february 1935, when the sub-inspector in charge of the thana was on leave. the head-constable who acted for him received the warrant and deputed two constables, safdar ali and vakil ahmad, to proceed to village parewa and make a search for mb. mohania in the house of.....

Niamat Ullah, J.

1. This is an application for revision of an order of the Sessions-Judge, Bareilly, in appeal from an order of a Magistrate of that district convicting the applicants under Sections 147, 332/148 and 225-B/l49, I.P.C. The Magistrate sentenced each of the accused to nine months' R. I. On appeal the learned Sessions Judge reduced the sentences of some to three months' R. I., and of others to six months' R. I. The gist of the offence with which the applicants were charged is that on 23rd February 1935 they attacked two constables and a few chaukidars, who had gone to village Parewa to search Mt. Mohania and to bring her to the Court of the Magistrate who had issued a warrant under Section 100, Criminal P.C., attempted to prevent the constables from taking Mt. Mohania. One of the applicants, namely Kalian Beg, has since died, and his case requires no further consideration. The remaining 11 accused are Kurmi and Chamar residents of village Parewa. The facts found by both the lower Courts may be briefly stated. Rammu Chamar of village Ugethi, district Budaun, made an application to a Magistrate of his district complaining that his wife, Mt. Mohania, had been enticed away by Mohan Chamar, a resident of village Parewa. The application was supported by an affidavit, in which it was stated that Mohan intended to sell Mt. Mohania somewhere in the Punjab contrary to the wishes of the woman. Rammu prayed that a search warrant under Section 100, Criminal P.C., be issued and Mt. Mohania be brought to the Court. A search warrant was issued and sent to the Sub-Inspector in charge of thana Bhojepura,' which is in Bareilly district. Village Parewa, where Mohan resided, is within the police circle Bhoje-pura. The warrant was sent through the District Magistrate and the Superintendent of Police, Bareilly. It was received at Bhojepura on 21st February 1935, when the Sub-Inspector in charge of the thana was on leave. The head-constable who acted for him received the warrant and deputed two constables, Safdar Ali and Vakil Ahmad, to proceed to village Parewa and make a search for Mb. Mohania in the house of Mohan and to take her as directed in the warrant.

2. The two constables, accompanied by Rammu and two other Chamars of Budaun and two chaukidars, reached village Parewa on the morning of the 23rd. When they arrived at Mohan's house Mt. Mohania was found warming herself over a fire in the courtyard. The constables took her into custody and dragged her for about 80 or 90 yards. It was admitted on behalf of the prosecution that she was unwilling to leave Mohan's place and that she shouted for help. A large number of villagers were attracted to the scene and attempted to rescue her front police custody. In the scuffle which ensued injuries were caused to the con-stables, one chaukidar and two of the three Chamars of the Budaun District. Among the villagers Kalian Beg, who has since died, and the applicant Khemi Karan also received injuries. It has-been found by the lower Courts that before the conflict between the villagers and the police party assumed serious proportion some villagers appeased the rest of them, saying that the police were taking Mt. Mohania under a warrant, which was in order, and that thereafter the villagers did their best to smooth-matters over. On the report of the constables the applicants were prosecuted for the offences already mentioned. The story told by the accused was that the police arrived at about 4 or 5 in the morning and by mistake entered the house of Baldeo Chamar, whom they questioned as to where Mt. Mohania was. After some altercation Baldeo Chamar was assaulted by the police. The suggestion on behalf of the defence was that whatever injuries were caused to the police party were the result of the exercise by the applicants of their right of private defence. Neither of the two Courts below has accepted the case for the defence. The evidence adduced on behalf of the prosecution was in the main accepted. The Magistrate acquitted some of the accused before him and' convicted the applicants, against whom he found the case fully established. The* learned Sessions Judge has substantially taken the same view.

3. I have been addressed at some length) by the learned advocate who appeared for the applicants. I am not satisfied that there is any such flaw in the findings arrived at by the lower Courts as would justify interference in revision with the findings of fact reached by those Courts. The conviction was also assailed on a point of law which had been raised in the Courts below. It has been found by the Magistrate, and the learned Sessions Judge seems to agree with him, that Rammu obtained the warrant of search on a misrepresentation of facts. It was not a fact that Mt. Mohania had been recently enticed away by Mohan and was being detained by him against her consent. On the contrary the evidence showed that she lived with Mohan for a considerable length of time and gave birth to a child while living in his house. It. is pointed out that Mt. Mohania, far from being unwilling to live with Mohan, created a scene when she was being removed by the police from his house. It its argued that the police were not justified in dragging her and they ought to have known from what they saw for themselves that she was not confined under such circumstances that the confinement amounted to an offence. Reference is made in this connection to the terms of Section 100, Criminal P.C., which provides that if a Magistrate, such as is therein mentioned, has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search the person so confined, and the person, if found, shall be immediately taken before the Magistrate. Stress is laid on the words 'so confined,' and it is contended that if the person to whom a warrant is issued for execution finds that the person in question is not confined so as to make the confinement an offence, he should refrain from executing the warrant. I do not think that this contention has force. The words relied on should be taken in the context in which they occur, and should be taken to imply 'believed to be so confined.' The section, which in this respect is not happily worded, lays down that it is for the Magistrate to find whether there are reasons for believing that any person is in wrongful confinement; and if he is so satisfied land issues a search warrant, the police officer, to whom the warrant is addressed, has merely to execute it according to its tenor. He must search for the person believed by the Magistrate to be unlawfully detained. The officer charged with the execution of the warrant is not expected to disregard the finding of the {Magistrate, and all that he is to do is to search for the person in question and to: take him to the Magistrate.

4. If a Magistrate properly discharges his duty, an occasion is not likely to arise for the officer executing the warrant to find that it proceeds on a manifestly erroneous assumption. In this case the Magistrate did not question Rammu and accepted his affidavit at its face value. He should have examined him in detail as regards the time when the alleged enticement occurred and the circumstances in which the woman was said to have been detained against her wishes. There is no doubt that the slipshod proceeding of the Magistrate was partly responsible for the unfortunate affair. It was next contended that the warrant was addressed to the ' Sub-Inspector in charge of thana Bhojepura' and that the head constable, who was at that time acting for him, was not competent to depute the two constables, and that the latter were not competent to execute the warrant. I do not consider it necessary to pronounce a definite opinion on this point. The legality or otherwise of the warrant is relevant in connection with the accused's plea that they acted in the exercise of the right of private defence. Such a right did not exist, as the constables acted under colour of their office; and even if their act was not strictly justifiable by law, the villagers had no right of private defence, since the constables were acting in good faith. There is nothing in the evidence which militates against the assumption that the constables were acting in perfect good faith. Any technical flaw, therefore, in the warrant is immaterial in considering the question whether the villagers acted in the exercise of their right of private defence. It was in controversy in the lower Courts as to whether the constables were in uniform and had declared that they were acting in the execution of a warrant. The position might have been different if, as was alleged on behalf of the defence, the constables were in plain clothes, and did not give the villagers to understand that they were taking Mt. Mohania in the execution of a search warrant issued by the Magistrate of Budaun. In view however of what has been found by the lower Courts, the accused cannot be considered to have acted in the exercise of their right of private defence.

5. While I hold that the applicants are not protected by Section 99, I.P.C., which defines the limits of the right of private defence, I think that the villagers acted under provocation. Most of the applicants had no personal interest in the matter and were prompted by fellow-feeling. They were shocked to see Mt. Mohania being dragged at the instance of Rammu from the house of Mohan, with whom she had lived as his wife and her shrieks being disregarded by the police. The villagers could hardly be expected to appreciate the legal position. All that was present to their minds at that moment was the action of the police, which, taken by itself, was considered by the villagers as cruel and high-handed. The learned Sessions Judge apparently took this aspect of the case into consideration in reducing the sentence in case of many of the applicants to three months rigorous imprisonment. In the case of Likkhi, Baldeo Bhangi, Jisukh, Har Sahai and Khem Karan, he reduced the sentence to 6 months' R. I., as he regarded them to be ring-leaders. I find that they were considered to be ring-leaders not because the part they took in the riot was of a different character from that taken by the rest of the accused, but because they were men of better position in life. The learned Judge has regarded Likkhi and Baldeo Bhangi as ring-leaders, because they are ex-chaukidars, Jisukh, because he is a 'thanait,' and Har Sahai, because he is a village 'muqaddam.' In the absence of any finding that these men took more prominent part than the others I do not think that it is right to regard them as ring-leaders. Khem Karan has been put in the same category, because ho received injuries and should therefore be considered to have been in the thick of the fight. I am unable to accept this ground as justifying enhanced punishment. Khem Karan is not shown to have led the assault or was otherwise 'in the thick of the fight.'

6. The fact that he received injuries while others did not, may be due to variety of circumstances in which he was hit, though he was less to blame than others. For those reasons I reduce the sentences passed on Likkhi, Baldeo Bhangi, Jisukh, Bar Sahai and Khem Karan, to three months rigorous imprisonment. Subject to this modification the application for revision is dismissed. The applicants shall surrender to their bail. The application of Kalian Beg abates.

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