1. This revision is against the appellate judgment of the Sessions Judge of Mayurbhanj maintaining the conviction and sentence passed on the petitioners for offences under Sections 332, 342, 147 and 225, I.P.C. by a 1st class Magistrate of Bhadrak. Petitioner Bishu Das was, however, bound down under Section 562(1), Criminal P.C. as he is said to be a boy of tender age.
2. The petitioners are all residents of village Naikanidihi, P. S. Basudebpur in Bhadrak Subdivision of Balasore district. The prosecution case was that bailable warrants of arrest had been issued against petitioners Bholi Parida and Dwija Das by the Sub-divisional Magistrate of Alipur sometime in May, 1952 in a ease under
Section 420, I.P.C. brought against them by one Lakshman Naik.
The warrants were personally handed over to the Peskar of the S. D. M. at Bhadrak by the said Lakshman Naik and the S. D. M., Bhadrak, endorsed the same to the Sub-Inspector of Police of Basudebpur thana for due execution. The latter directed ft police constable named Satrughna Mohapatra (P. W. 1) to secure the arrest of the accused persons and on 29-5-1952 at about 6 a.m. the said constable accompanied by the Dafadar, Choukidar and some other persons of the village effected the arrest of petitioner Bholi Barida after showing him the warrant and explaining its contents.
He left Bholi in charge of the Dafadar in the village street and tried to effect the arrest of petitioner Dwija Das. The constable saw Dwija in his house and showed the warrant to him and also explained to him its contents. There upon, Dwija immediately rushed inside his house. The constable then pursued him inside but he was immediately caught hold of by Dwija, his brothers and other members of the family and severely assaulted. His Pugri, shoes and belt were snatched away and the warrants of arrest were torn to pieces.
On hearing the shout of the constable, P. W. 4 and some other villagers attempted to come to his rescue but the door was shut from inside and they could do nothing. In the meantime, petitioner Bholi Parida escaped from the custody of the Dafadar (P. W. 4), entered the house of Dwija Das through the back door and joined in the assault of the constable. The constable was then tied with a rope inside the house. But sometime later, at the intervention of the villagers he was released.
3. In the meantime, one Paramananda Pali (P. W. 3) ran to the police station and gave information (Ex. 9) which was recorded by P.W. 10 as the station diary entry and then investigation of the case was taken up. The police officer went to the village & found the constable with some injuries and his uniform torn. He collected some of them (Ex. VI series) and after the usual investigation submitted charge-sheet. He found injuries on the Dafadar (P. W. 4) and petitioner Daitari Das and took steps for the medical examination of all the injured persons.
4. The petitioners' case, however, was that the constable took advantage of the temporary absence of petitioners Daitari Das and Keshab Das and attempted to molest the female inmates of their house and that, on hearing their cry of alarm some of the villagers came there. Though the petitioners have not categorically stated thai they assaulted the constable while defending the honour of their female folk, it seems to have been suggested that it was a case of right of private defence.
In the alternative, it was also urged that the warrants of arrest were defective, that the constable did not act within his jurisdiction in the discharge of his duty and that even if he was assaulted In the manner as stated by him, the petitioners were not guilty of any offence,
5. Both the lower Courts totally disbelieved the petitioners' story that the constable attempted to molest the females inside the house of petitioners Daitari and Keshab. They have, however, substantially accepted the prosecution case about the circumstances under which the constable went to the village, secured the arrest of petitioner Bholi Parirda and attempted to apprehend petitioner Dwija Das. They have also be lieved the constable's version about the severe assault on him inside the house of Dwija Das and his subsequent wrongful confinement.
Doubtless, there were some discrepancies in the evidence of the prosecution witnesses. But these have been carefully noticed by the lower appellate Court which, however, came to the conclusion that the discrepancies were not material. There was also an omission on the part of the prosecution to examine some other witnesses who could prove the despatch of the warrants of arrest from Alipur Court.
No officer of the Court of the Sub-divisional Magistrate, Alipur, has been examined and Lakshman Naik, the complainant in the case under Section 420, I.P.C., who was said to have personally brought the warrants from the Court of the Sub-divisional Magistrate, Alipur, to the Court of Sub-divisional Magistrate, Bhadrak, was also not examined.
This omission was considered by the lower appellate Court to be not very material in the present case. I shall deal with this point while discussing the illegality of the warrants. At present it is sufficient to say that the essential findings of fact of the two lower Courts regarding the main features of the prosecution case must be taken to have concluded the question and despite the strenuous arguments of Mr. Das on behalf of the petitioners I am not inclined to interfere with those findings.
6. Mr. Das however raised the following interesting questions:
(i) There is no satisfactory evidence to show that the warrants of arrest were validly issued by the Sub-Divisional Magistrate of Alipur;
(ii) There is also no evidence to show that the Sub-divisional Magistrate of Bhadrak endorsed his name on the warrants as required by Section 83(2), Criminal P. C. while directing the S. I. of Police of Basudebpur to execute the same;
(iii) The police constable did not comply with the provisions of Sections 47 and 48, Criminal P. C. while attempting to arrest Bholi Parida and Dwija Das in execution of those warrants.
(iv) In any case, the police constable had no justification for entering the house of petitioner Dwiji Das and the inmates of the house were therefore justified in assaulting him and turning him out by using force. On the basis of these arguments he urged that the petitioners were fully justified in resisting their illegal arrest by a constable on the basis of warrants which themselves were illegal.
7. It is true that no member of the staff of the Sub-divisional Magistrate, Alipur, has been examined to show that the warrants of arrest in the case under Section 420, I.P.C. were validly issued against petitioners Bholi Parida and Dwiji Das. Again, the complainant of the case, namely, Lakshman Naik, who brought the warrants to the Court of the Sub-divisional Magistrate, Bhadrak, has not been examined. These are undoubtedly unsatisfactory features in the prosecution case.
But the question arises as to whether on account of non-examination of these persons It could be reasonably held that the warrants themselves are illegal. The torn pieces of the warrants (Ex. VI series) which were collected at the spot were produced before the Court and on properly arranging the same I find no defect appearing on the face of the warrants.
It is true that some of the torn pieces were not traced out and the pieces that were produced before the Court leave several portions of the warrants in an incomplete condition. But the seal of the Sub-divisional Magistrate, Alipur, the name of the Complainant, the names of the accused persons and the order of the Sub-divisional Magistrate, Alipur requesting the Sub-divisional Magistrate, Bhadrak to duly execute the warrants and return them by the date fixed are all clearly noticeable.
It was urged both in the lower appellate Court and before me that when the original warrants have been produced (though in a torn condition) and there is absolutely nothing ex facie to show any detect in the same, the Court may draw a presumption under Section 114, Illustration (e). Evidence Act and assume that the warrants were properly issued by the Sub-divisional Magistrate of Alipur.
In support of this argument the learned Government Advocate has relied on -- 'Vallibhai v. Emperor', AIR 1033 Bom 79 (A) and also on -- 'Ranga Lal Sen v. Emperor', AIR 1936 Cal 788 (B). I am inclined to accept his argument. As pointed out in AIR 1936 Cal 788 (B) distinguishing an earlier Calcutta decision reported in -- 'Walvekar v. Emperor', AIR 1926 Cal 966 (C) where a warrant was on the face of it not defective the Court would be entitled to draw a presumption in accordance with the provisions of Section 114, Illustration (e). Evidence Act. .
Doubtless, it was for the lower Courts to say whether they would draw such a presumption or not. But when they have drawn such a presumption I do not think that in revision. It would be justified in disturbing the same. There is absolutely no material on record for even suspecting the genuineness of the warrants or the genuineness of the seal of the Sub-divisional Magistrate of Alipur. Mr. Das, however, related on -- 'Emperor v. Bhiku Ramchandna', AIR 1950 Bom 330 (D) and urged that in a criminal case such a presumption should not be drawn against an accused.
But that case is clearly distinguishable. Where an accused is prosecuted for contravening an order passed by a Court, the trying Magistrate would not be justified in drawing a presumption under Section 114, Illustration (e) in the absence of further evidence to show that the order was passed in the manner required by law. But here, the petitioners were not being prosecuted for contravention of the warrants of arrest but they were being prosecuted for assaulting a public servant in the discharge of his duty.
Doubtless, the question as to whether the warrants were validly issued or not is relevant in considering whether the public servant was discharging his duty. But for that purpose, when the warrants have been actually produced and ex facie there is no defect in them there seems to be no special reason why the presumption under Section 114, Illustration (e), Evidence Act should not be drawn.
8. The second contention of Mr. Das deals with the absence of any evidence to prove the name of the Sub-divisional Magistrate of Bhadrak in the endorsement on the warrants. The prosecution examined the Bench-clerk of the S. D..M., Bhadrak (P. W. 9) who stated that he wrote out the necessary endorsement. Doubtless, he did not state in examination-in-chief that the endorsement was signed by the S. D. M.
This is undoubtedly an unfortunate omission on the part of the prosecuting Sub-Inspector of Police. But I notice that during the cross-examination of this witness it was brought out that the warrants were sent to the police 'after endorsement by the S. D. M., Bhadrak'. From this answer a fair inference can be made that the S. D. M. did put his name.
A perusal of the warrants also shows that though the endorsement to the effect 'S. I. police Basudebpur for execution and return' is in one Ink there are initials in another ink which from the context appear to be those of the Sub-divisional Magistrate himself. The question arises as to whether by merely initialling such an endorsement the Sub-divisional Magistrate has complied with the provisions of Section 83(2), Criminal P. C. which require the endorsement to be in his name.
Doubtless, it would have been better If the 8. D. M. had given his name in full. The initials are illegible; but I notice that there is sufficient authority for the view that the mere affixing of initials where a signature is required by statute in a warrant would at best, amount to an irregularity curable by Section 537, Criminal P, C. See -- 'Banke Behary Singh v. Emperor', AIR 1918 Pat 613 (E).
Mr. Das however relied on -- 'Abdul Gafur v. Queen-Empress', 23 Cal 896 (F). But I find that this decision was noticed but not followed in the Patna decision mentioned above. I am therefore of the opinion that the evidence of the Bench-clerk (P. W. 9) and the entries in the warrants are sufficient compliance with the provisions of Section 83(2), Criminal P. C. and the irregularities are curable.
9. The next question is whether the constable acted within his jurisdiction in effecting the arrest of Bholi Parida and Dwija Das. The warrants were in English and the constable frankly admitted that he did not know English. But he stated that the contents of the warrants were explained to him by the Sub Inspector of Police at the time of his leaving the police station.
It was also brought out during the cross-examination of the constable that he showed the warrants to both these persons and explained to them briefly that they were wanted in a criminal case in a Court in Calcutta but that they would be released if they gave bail. Some attempt was made to challenge the correctness of the statement of the constable. But as it has been accepted by both the Courts of fact I am not inclined to allow the question to be agitated again.
The constable appears to have acted in accordance with the provisions of Sections 46 and 47, Criminal P. C. in making the arrest. So far as petitioner Dwija Das is concerned, when the warrant was shown to him and its contents were explained to him by the constable he disappeared inside his house and this necessitated the entry inside the house by the constable himself.
It was however urged that the constable's right of entry inside the house which was regulated by Section 48, Criminal P. C. did not arise inasmuch as (1) he did not make a formal demand to the owner of the house to allow him reasonable facility to enter the house and search the same and (2) he did not give notice to the female inmates of the house to withdraw.
10. Neither of these contentions can however prevail. Petitioner Dwija himself was living in the house and when after learning from the constable that a warrant was issued against him and that the constable was armed with the same he went inside the house. The evidence of the constable is that at that time the door was not closed and there was no necessity of breaking open the same. He immediately followed Dwija Inside so as to prevent his escape.
The first part of Section 48 which permits a police officer to enter inside a dwelling house for the purpose of arresting a suspect does not require that where the door of the house is open the constable should wait and make a formal demand for admittance to the owner of the house.
The position would have doubtless been slightly different if he had broken open any door. Similarly, there is absolutely no evidence on record to show that the room into which the constable, made an entry was the zenana portion of the house of Dwija Das.
It is true that the constable stated that when he was being assaulted some of the female inmates of the house also joined in the assault. But as that room was facing the village road it is highly improbable that it would be the apartment set apart for the females. In the absence of any evidence to that effect it cannot be said that the constable entered the zenana portion of the house without observing the formalities required by the proviso to Section 48, Criminal P. C. so as to render his entry unlawful.
11. I am therefore satisfied that there wasno illegality either in the issue of the warrantsof arrest or in the execution of the same at thespot by the constable and that the petitionershad no right of private defence. They actedin a high-handed manner and the substantive-sentence of imprisonment cannot be said to be excessive. The conviction and sentence aretherefore maintained and the revision petitionis dismissed.