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Alay Mohammad and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All457; 64Ind.Cas.278
AppellantAlay Mohammad and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 54(1), clause (1) - arrest by constable without warrant--cognisable offence--reasonable complaint. - - it has been argued before me that inasmuch as no complaint had been made to the constables who actually made the arrest, the provisions of section 54, sub-section 1, clause 1, would not apply, but this is clearly not the meaning of the section. the term complaint is defined in section 4 of the code of criminal procedure and that makes the matter perfectly clear. in the fourth ground of the petition it is set down that the trial of the accused for offences under sections 332, 147 and 225 in one trial was bad in law. it is perfectly obvious that all these charges arose out of the same transaction......aley payamber. each of these was sentenced to a fine of rs. 100 under section 147 of the indian penal code, to six months rigorous imprisonment under section 225 of the indian penal code and to a fine of rs. 100 under section 332 of the indian penal code. on appeal the fines imposed under section 332 were reduced to rs. 50 cash,3. case no. 276 is concerned with three men, masud husain, muslim husain and ali husain alias dhanna. these men were convicted under the same sections as the three persons above mentioned, but they were sentenced to fines only, the fines under two of the sections charged being reduced in the court of appeal.4. the last case no. 277 is concerned with one ghulam akbar. he was convicted under section 224 of the indian penal code and sentenced to seven months.....
Judgment:

Lindsay, J.

1. These petitions have been presented on behalf of seven accused persons who have been convicted in the Court of the Magistrate of Moradabad District.

2. Case No. 275 is concerned with three persons, Aley Muhammad, Husain Beg and Aley Payamber. Each of these was sentenced to a fine of Rs. 100 under Section 147 of the Indian Penal Code, to six months rigorous imprisonment under Section 225 of the Indian Penal Code and to a fine of Rs. 100 under Section 332 of the Indian Penal Code. On appeal the fines imposed under Section 332 were reduced to Rs. 50 cash,

3. Case No. 276 is concerned with three men, Masud Husain, Muslim Husain and Ali Husain alias Dhanna. These men were convicted under the same sections as the three persons above mentioned, but they were sentenced to fines only, the fines under two of the sections charged being reduced in the Court of Appeal.

4. The last case No. 277 is concerned with one Ghulam Akbar. He was convicted under Section 224 of the Indian Penal Code and sentenced to seven months rigorous imprisonment and under Section 332 of the Indian Penal Code to a fine of Rs. 100.

5. The facts which it is necessary to state are as follows. A complaint had been brought by one Ganga Ram against two men. Ghulam Akbar and Mustafa Husain. The cbarge was a charge under Section 406 of the Indian Penal Code, and the Magistrate before whom it was brought directed the issue of warrants for the arrest of these two men. Both of them absconded and the warrants were returned unserved. Thereafter it is said steps were taken under Sections 87 and 88 of the Code of Criminal Procedure for the purpose of proclaiming these man as offenders and attaching their property.

6. On the 2nd of November 1920, which was the Chehlum day, information was given to several constables by the complainant Ganga Ram that Ghulam Akbar and Mustafa Husain had arrived in Amroha and were in the town at that time. The constables thereupon went and arrested both of them. As soon as they were arrested, according to the finding of the Court below, a mob of about some 30 persons surrounded the Police and attempted a rescue. It is said that some of the persons in this arowd demanded a sight of the warrants under which the two men were being arrested. They were informed that there were no warrants for their arrest. Thereafter the mob began hustling the two constables and in spite of some other constables soming up from the Thanna, the two prisoners were rescued from custody. These are the facts with which I have to deal in these cases.

7. The first argument which has been put before me is that the arrest by these constables was an unlawful arrest. It is argued that inasmuch as the proclamation had not bean carried out in the manner provided by Section 87 of the Code of Criminal Procedure, the Police had no authority to arrest without warrants. In other words, the accused who were arrested had not been proclaimed as offenders within the meaning of the Act.

8. This argument was raised in the lower Appellate Court, but was repelled by the learned Judge who accepted the evidence which was put forward for the purpose of showing that a proclamation had been made in accordance with the law.

9. It is not, however, necessary for me to examine this matter any further, for it is quite clear that these constables were justified in arresting these two men under the provisions of Section 54, Sub-section 1, Clause (1) of the Code of Criminal Procedure. It is not to be doubted that Ghulam Akbar and Mustafa Husain were persons against whom a ''reasonable complaint had been made of their being concerned in a cognizable offence.' An offence under Section 406 is a cognizable offence and as regards the reasonable complaint; it must be taken that there was such a complaint when we know that a Magistrate after taking the statement of the complainant had acted upon it and had issued a warrant for the arrest of these two accused. It has been argued before me that inasmuch as no complaint had been made to the constables who actually made the arrest, the provisions of Section 54, Sub-section 1, Clause 1, would not apply, but this is clearly not the meaning of the section. It is sufficient that a reasonable com-plaint should have been made to any person who was entitled to entertain it, and there can be no question as to this having been done. The term complaint is defined in Section 4 of the Code of Criminal Procedure and that makes the matter perfectly clear. So mush for the first three grounds. In the fourth ground of the petition it is set down that the trial of the accused for offences under Sections 332, 147 and 225 in one trial was bad in law. That argument is answered at once by a reference to the terms of Section 239 of the Criminal Procedure Code. It is perfectly obvious that all these charges arose out of the same transaction.

10. The last ground which has been argued before me is that the sentence is too severe. I have read the judgment of the Court below and having heard all that the learned Counsel has to say, I am of opinion that the sentences should stand. The offences charged against these men were grave offences, I do not consider the Magistrate dealt at all too hardly with any of these accused. It is a very serious thing for people to venture on the rescue of prisoners from the lawful custody of the Police and any attempt in this direction should be severely dealt with. The result is that I leave the orders of the Court below as they are and dismiss these applications. Those of the accused who are out on bail must surrender and serve out the unexpired portions of their sentences.


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