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Kizhakkethil Sulaiman S/O Avran Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 42 of 1963 and Cri. Revn. Petn. No. 204 of 1963
Judge
Reported inAIR1964Ker185; 1964CriLJ34
ActsIndian Penal Code (IPC), 1860 - Sections 99, 224 and 302; Code of Criminal Procedure (CrPC) , 1898 - Sections 54, 54(1), 56(1) and 439
AppellantKizhakkethil Sulaiman S/O Avran
RespondentThe State of Kerala
Appellant Advocate Leelamma Paikaday (At State Cost), Adv.
Respondent Advocate State Prosecutor, Adv.
DispositionAppeal and revision dismissed
Cases ReferredVarkey v. State of Kerala
Excerpt:
.....conviction upheld. - - in that case a warrant endorsed by the sub inspector of police to the police constable under section 79 was found to be defective and the question that was considered was whether the arrest could be justified under section 56(1). it was held that the police constable was not acting on his own initiative and cannot, therefore, fall back on section 54, cri. and the arrest was therefore perfectly legal. there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if 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. ' the question would be whether the arrest could be said to have been 'done..........the accused had gone to the sulkhees theatre at olavakkot for the matinee show. so the deceased police constable waited for him at the gate of the theatre. when the accused came out after the show the deceased stopped and arrested him and wanted him to go with him to the chittoor police station as the sub inspector of police wanted to question him as he was suspected in a cognizable offence. the accused submitted to the arrest and they were proceeding along the road and reached pw. 7's tea shop. the shop is on the palghat-olavakkot road. in front of the tea shop a beach is placed for people to sit.pw. 4 hamsa was present near the lorry brokers' office, to the north-east of pw. 7's tea shop. he saw the accused and the police constable coming along the road, accosted him and accompanied.....
Judgment:

Govinda Menon, J.

1. The appellant in this case has been convicted for offences punishable under Sections 302 and 224, I. P. C., for intentionally or knowingly causing the death of a police constable, Govindan Nair alias Muhammad Ali at about 6 p.m., on 9-11-62 in front of the tea shop of one Mubammed examined as P. W. 7 in the case.

The accused is an old offender haying his name in the K. D: register maintained at the Palghat town police station. At the Chittoor Police Station a case crime No. 123 of 1962 was registered for house breaking and theft under Sections 457 and 380, I. P. C., and Pw. 8 a Head constable attached to that station was investigating into the case. He suspected that the accused must have had some connection with the crime and was trying to get at him. His house had also been searched. Deceased Govindan Nair alias Muhammed Ali was a constable attached to the Chittoor Police station, but at the time of the occurrence was on leave and was living with his wife at Olavakkot. Getting information that the accused was in Olavakkot, Pw. 8 asked Govindan Nair to arrest the accused and produce him at the station.

The deceased was making enquiries about the accused and on the date of the occurrence information was received that the accused had gone to the Sulkhees theatre at Olavakkot for the matinee show. So the deceased police constable waited for him at the gate of the theatre. When the accused came out after the show the deceased stopped and arrested him and wanted him to go with him to the Chittoor police station as the Sub Inspector of police wanted to question him as he was suspected in a cognizable offence. The accused submitted to the arrest and they were proceeding along the road and reached Pw. 7's tea shop. The shop is on the Palghat-Olavakkot road. In front of the tea shop a beach is placed for people to sit.

Pw. 4 Hamsa was present near the lorry brokers' office, to the north-east of Pw. 7's tea shop. He saw the accused and the police constable coming along the road, accosted him and accompanied them to the shop. On reaching there the accused sat on the bench in front of the tea shop and the police constable stood near him. Pws. 1 and 2 who had gone there to take tea were sitting on the bench. The deceased questioned Pw. 1 to verify whether the accused was Sulaiman who was wanted by him. The accused wanted tea and the deceased asked the shopkeeper to supply tea to him. Pw. 3 who was the attender in the shop served tea and a bun to the accused. After the accused had taken tea Pw 3 asked the accused for money. The accused then stood up, put his hand in the trouser-pocket pretending to take money and suddenly took out a dagger and stabbed the police constable on his abdomen. After doing so, he ran away with the weapon. Deceased followed the accused for a little distance, but fell down. Pws. 4 and 5 followed the accused. Pw. 4 returned after going a short distance. Pw. 5 followed the accused for about two furlongs. When the accused turned round and threatened to kill him, he got frightened and made a hastly retreat.

The deceased was forthwith removed to the headquarters hospital, Palghat. Pw. 11the Medical Officer attached to the hospital examined him and admitted him as an inpatient. He had a penetrating wound with clean cut edges on the left side of the abdomen 1' x 1/2' extending up to the abdominal cavity running vertically above downwards and situated 2' above the umbilicus. On exploration it was found that there was an incised wound on the left lobe of the liver. There was a bleeding point in the surface of the adjacent diodenum and there was a tear with clean cut edge on the upper mesentery.

On intimation received from the hospital Pw. 13 the District Magistrate of Palghat reached the hospital at 7-4g p.m. and recorded the dying declaration Ex. P-9(a). The doctor was present and he has certified that the patient was conscious. Pw. 17 the Circle Inspector of police also got information and proceeded to the hospital along with the Sub Inspector Pw. 18. The injured was questioned, but as he was unconscious, no statement could be taken from him. Statement was recorded from Pw. 1 and on that a case was registered. Pw. 17 questioned Pws. 1, 2, 5 and 7 at the hospital. He then proceeded to the scene of occurrence. Next day morning he prepared the scene mahazar. The accused was in hiding. Information was given to all the police stations to arrest the accused. Pw. 9 the head constable attached to Mannarghat police station got some information about the accused and he along with Pw. 10 the village officer and a police party arrested the accused at a place called Viyyakkurissi. The body of the accused was searched and the dagger M. O. 1 which he had with him was taken into custody. The accused was then taken to the Palghat police station.

On 10-11-62 the injured succumbed to his injuries. The Circle Inspector then went to the hospital and held the inquest. After the inquest Pw. 12 the Medical Officer conducted the autopsy. The doctor has given evidence that the injury is sufficient in the ordinary course of nature to cause death. The accused was also examined by Pw. 12, but he had no injuries.

2. When questioned on the evidence in the committing Magistrate's Court the accused stated that he was not guilty and that he had not stabbed the police constable. When further questioned he stated that he had not seen the police constable on that day and that he did not run away with the knife in his hand. In the Sessions Court the accused, however, admitted that the deceased met him in front of the theatre and asked him to go to the police station, but he stated that he did not agree to go and but ran away from the place and escaped. He denied having accompanied the deceased to Pw. 7's tea shop and denied having stabbed him as spoken to by the witnesses. He stated that himself and Pws. 1 and 4 were on inimical terms and they were giving false evidence. Asked about his arrest he stated that he was arrested while he was in the Mannarghat town, but denied having the dagger with him.

3-5. That the deceased police constable sustains a serious injury on the abdomen and died as a result of the injury is amply proved and is not disputed. So the question that arises for decision is whether it was the accused who inflicted the injury. The prosecution has examined a number of witnesses in proof of their case. (After discussion of the evidence His Lordship concluded :) There is thus overwhelming evidence to bring home the guilt to the accused.

6. Learned counsel for the appellant has argued that the arrest and the subsequent confinement of the accused by the deceased police constable was not lawful and as such no offence is committed even if the accused had used violence against him in escaping from such custody. Section 224, I. P. C. deals with escape from any custody in which a person is lawfully detained. To sustain a conviction under that section it is, therefore, essential that the prosecution should prove that the apprehension of the accused was lawful in every way. The contention advanced is that the deceased was asked by the head constable, Pw. 8, to go and apprehend the accused and in such a case the procedure prescribed under Section 56(1) has to be complied with. Section 56(1). Cri. P. C., reads:

'When any officer in charge of a police station or any police officer making an investigation under Chapter XIV requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the Officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made. The officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.'

Admittedly there was no such order under Section 56, Cri. P. C., and therefore it is stated that the arrest is illegal and the custody is unlawful.

What happened in this case is spoken to by Pw. 6 who is the only witness to speak about the arrest. He has deposed that as soon as the accused came out of the theatre the deceased constable stopped him, caught hold of him and told him that he should accompany him to the Chittoor police station, that the accused questioned him as to why he should go and the deceased told him that there was suspicion that the accused was concerned in two or three theft cases and when he told him so, the accused submitted to the arrest and accompanied the deceased constable. So even though he had been directed by the head constable to arrest the accused the evidence shows that there was no reference to the orders received by him from the head constable but he was acting on his own initiative under Section 56(1), Cri. P. C.

Section 54, Cri. P. C., lays down that any police officer may, without an order from a Magistrate and without a warrant arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. The deceased told him that there was reasonable suspicion that he was concerned in certain theft cases which are cognizable offences and so he purported to act under Section 56(1) and not under Section 56(1), Cri. P. C.

Learned counsel would argue that Section 54 only gives power to a police officer to arrest while acting on his own initiative having information that a particular person is concerned in a cognizable offence; and the officer certainly cannot seek protection under Section 54 when he has been deputed by the head constable under Section 56 of the Code. In other words the contention is that by reason of the special deputation the powers of the police constable are strictly within the ambit of Section 56 of the Code and not beyond that, and that he cannot invoke the wider powers of arrest without warrant under Section 54. We cannot agree. The special powers under Section 56, Cri. P. C., cannot override the general powers of arrest without warrant in the cases provided for in Section 54 of the Code. The fact that the deceased constable had been deputed under Section 56 to arrest the accused does not take away from him his powers of arrest in his discretion under Section 54 of the Code, if the exigencies of the situation so require. To take a contrary view is likely to make the object of Section 54 nugatory, because there may be cases where besides being armed with an order contemplated under Section 56, a police officer may also be possessed of the requisite information under Section 54, in which case his act will be supportable under either of the sections.

7. Various decisions were cited at the bar by either side but we would refer only to a few of them. One of the cases cited by the learned defence counsel is the decision in Mohammed Ismail v. Emperor, AIR 1936 Rang. 119. There the appellant was convicted under Section 353, I. P. C. for assaulting a police constable when the latter was trying to arrest him as he was wanted in a theft case under Section 380, I. P. C. The investigating Sub Inspector of police had given verbal orders only to the arresting constable and had not given him an order in writing, specifying the person to be arrested and the offence for which the arrest was to be made as required under Section 56, Cri. P. C. The Honorary Magistrate who tried the case convicted the accused on the ground that the arrest was in order under the provisions of Section 56(1), but the High Court in appeal held that Section 54 does not give an unqualified power in all cases to any police officer to arrest--without an authorisation in writing--and that the provisions of Section 54 are limited by those of Section 56. But from a reading of the judgment it is quite clear that the learned Judges concede the position that any officer who had information of a cognisable offence or who had reasonable ground to suspect a person of such an offence can effect an arrest without a warrant from a magistrate or any other authorisation from a superior officer. It was not alleged in that case that any information had been received by the police constable or that he had any reasonable suspicion or that he was acting in any other capacity than under the orders of the investigating officer to arrest the accused and it was for that reason that their Lordships held that the police constable could not take shelter under Section 56(1) Cri. P. C.

In King v. Sridhar, AIR 1941 Rang. 180 the same view was taken. The case arose in connection with a strike in an oil company. A first information report was made at the local police station alleging that a haystack had been burnt the night before. The Sub-Divisional police officer gave orders by word of mouth to the local Sub-Inspector to arrest one F in connection with that case. In accordance with the verbal orders, F was arrested. The question that arose was whether F was lawfully detained. Since there was not the slightest suggestion that the Sub Inspector of police acted in any way on his own initiative or that he-had any information or suspicion apart from what his superior officer told him it was held that the arrest could not be justified.

Similarly in the case in State v. Ram Chandra, AIR 1955 All 438 it was held that where a police officer deputes his subordinate to effect an arrest of an accused without a warrant, then under Section 56 he has to deliver to the officer required to make the arrest an order in writing and for want of such a written order, the arrest of the accused by such an officer would be illegal by reason of the non-compliance with the provisions of Section 56 and the arrest cannot be made legal by calling in aid the provisions of Section 56(1) if the officer making the arrest did not himself purport to act under those provisions in addition to the further fact that he did not possess the requisite information enabling him to arrest the accused on his own responsibility. But it is not stated that in a case where the officer had independent knowledge or information that the person to be arrested is concerned in a cognizable offence he cannot act under Section 56(1) even though the provisions under Section 56 have not been complied with.

8. Learned counsel then referred to the decision of this Court in Kochu Kunju v. State of Kerala, 1961 Ker LT 577 decided by one of us. In that case a warrant endorsed by the Sub Inspector of police to the police constable under Section 79 was found to be defective and the question that was considered was whether the arrest could be justified under Section 56(1). It was held that the police constable was not acting on his own initiative and cannot, therefore, fall back on Section 54, Cri. P. C. it was observed;

'In the first place the constable did not purport to act without a warrant and there is no case that apart from the invalid warrant he had any knowledge or suspicion of his own that the first accused was concerned in any cognisable offence. What he actually did was to endeavour to execute the warrant.'

So this case has no application to the facts of this instant case as there is evidence in this case that the deceased constable was acting on his own and had told the accused that be had reasonable suspicion that the accused was concerned in a cognizable offence and that was why he was arresting him and taking him to the Sub Inspector.

Reliance was there placed on the decision in in re Appaswamy Mudali, AIR 1924 Mad 555. It was held:

'Where a constable arrests a man and tells him expressly that he is doing so under a particular authority, which he claims to have to arrest him and if such arrest is resisted, it will be for the prosecution afterwards to establish that the constable who arrested the man had power to act under the authority that he claimed to have. It is not sufficient for the prosecution afterwards to say that the constable had authority under some other provision of law. Any man who is being arrested, has a right to ask the officer arresting him to show him what power he has to do so. If the arrest is under a warrant, the man arrested is entitled to ask that the warrant be shown to him to see that he is being properly arrested and when the warrant is not shown to him and the arrest is made, such an arrest will not be a legal arrest. A man is entitled to know when a constable is arresting him, under what power he is acting and if he (constable) states that he acts under a certain power, which the man knows he has not got, he is entitled to object to arrest and to escape from custody when he is arrested.' That case also has no application to the farts of this case.

9. In Kishun Mandar v. Emperor, AIR 1926 Pat 424, a police constable who was deputed by the Sub Inspector went along with the complainant from whom the constable, acting independently obtained credible information which entitled him to act under Section 54.

Similarly in Keshavlal Harilal v. Emperor. AIR 1937 Bom 56 the police constables were present when the complaint was made and they had personal knowledge of the making of the complaint, and they purported to act under Section 56(1) and the arrest was justified. Their Lordships held:

'The provisions of Section 54 are very wide and are not controlled by the provisions of Section 56 and a police constable is entitled to arrest, under Section 54, the person required, independantly of Section 56 without a warrant, in a cognizable case.'

The matter has been elaborately considered in the case Gandharbs Rath v. Aparti Samal, AIR 1960 Orissa 33, in that case the first information was lodged at a police station and the Asst. Sub Inspector of police was deputed for making investigation and he went to the village and arrested the complainant. On the complaint of that person that he was wrongly arrested and confined the Magistrate acquitted the Police Officer and the High Court upheld the acquittal on the ground that the police officer was not deputed for the purpose of arresting a particular person but was deputed for preliminary investigation of the case, and that would show that the police officer had been given the direction to act on his own initiative and he could freely act and effect the arrest, if necessary, as the exigencies of the situation might require. It was held that there was no question of his being clothed with an order in writing as required under Section 56 when he could act under Section 54, Cri. P. C.

It is unnecessary to multiply decisions, because in all these decisions it has been made clear that if the officer is acting on his own initiative and independently in the course of his duty he may act under Section 56(1) and if he is not so acting but merely doing what his superior officer tells him to do then the order in writing must be delivered to him under Section 56. In the light of the principles enunciated in these cases there can be no difficulty in finding that the deceased police constable had acted under Section 56(1), Cri. P. C. and the arrest was therefore perfectly legal. The evidence in the case also shows that there was submission to custody under Section 46 of the Code., and the accused had accompanied the deceased constable. Therefore, the contention of the defence counsel fails.

10. Even otherwise the legality of the arrest will not affect the legality of the conviction of the accused for the offence under Section 302, I. P. C. We may refer to the provisions contained in Section 99 of the Penal Code. Section 99 reads;

'There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if 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.'

The question would be whether the arrest could be said to have been 'done or attempted to be done by a public servant acting in good faith under colour of his office. The word 'colour of office' refer to irregular as distinguished from illegal acts. If what has been done is done in good faith under colour of his office no right of private defence would arise. We had occasion to consider this question in some detail in a recent decision of this Court in Varkey v. State of Kerala, 1963 Ker LJ 76 where we have held that under Section 99, I. P. C., there is no right of private defence 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. So no question of the right of private defence arises in this case and the accused is clearly guilty of the offence charged.

11. The State has filed a petition under Section 439, Cri. P. C., for enhancement of the sentence to one of death. Though no limitation has been placed on the powers of this Court, to enhance the sentence it is nevertheless a judicial act and like all judicial acts involving the exercise of discretion it must be exercised along well known judicial lines. The question of sentence is a matter of discretion primarily resting with the trial Court and it is well settled that when that discretion has been properly exercised an appellate Court should nut interfere unless there are very strong reasons and in a case where the sentence cannot be said to be so grossly inadequate as to amount to a miscarriage of justice the High Court will not interfere. We, therefore, do not think that interests of justice require that the sentence imposed by the learned Sessions judge should be enhanced. The petition has only to be dismissed.

In the result the conviction and sentencepassed on the appellant are confirmed and theappeal is dismissed. The revision petition filed bythe State is also dismissed.


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