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Kunhambu Nambiar Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal R.P. No. 14 of 1956 (K)
Judge
Reported inAIR1957Ker174; 1957CriLJ1264
ActsIndian Penal Code (IPC), 1860 - Sections 225B - Order 21, Rule 24(2)
AppellantKunhambu Nambiar
RespondentState of Kerala
Appellant Advocate C.K. Viswanatha Iyer and; R. Krishnaswami, Advs.
Respondent AdvocateGovernment Pleader
DispositionRevision petition dismissed
Cases ReferredI. Subbaramiah v. Emperor
Excerpt:
.....in this behalf, and shall be sealed with the seal of the court and delivered to the proper officer to be executed'.3. every one of the conditions required by this clause has 'to be satisfied by the warrant issued for the arrest of the judgment-debtor which is also a process for the execution of the decree......4 has deposed that the district munsiff had issued a general order on 21-12-1953 authorising the head clerk of the court to sign such warrant. this statement of pw. 4 has been believed by both the lower courts and i see'no reason to doubt the truth of that statement. there is a further argument advanced on behalf of the petitioner that the authority thus conferred on the head clerk could not be exercised by pw. 4 who was only a deputy nazir.here again the objection is answered by the evidence given by pw. 4 himself. he has stated that ion the date when the warrant ext. p1 was issued he was the acting head clerk of the court, the permanent head clerk being on leave. it is obvious that the authority conferred on the head clerk is not the authority conferred on any particular individual.....
Judgment:
ORDER

Sankaran, J.

1. In this revision petition filed by the accused, in C. C. No. 488 of 1956 on the file of the Sub Magistrate at Cannanore, the sustainability of the conviction entered against him by the sub Magistrate under Section 225B of the Indian Penal Code and which was confirmed by the District Magistrate of Malabar, has been challenged by him. The prosecution case is that in execution of the decree in O. S. No. 55 of 1950 on the file of the District Munsiff's Court at Taliparamba, the court had issued a warrant of arrest against the judgment-debtor accused and that P. W. 5, the process server to whom the warrant had been entrusted, arrested the accused at about 4-30 p.m. in Kokkanisseri bazar, on 7-3-1956 and that the accused ran away and escaped from the lawful custody of the process server.

Ext. P1 is the warrant under which the accused was arrested, After the accused had escaped from the lawful custody of P. W. 5, the latter returned the warrant to the court with the endorsement Ext P1 (a) and stating the circumstances under which the accused escaped from lawful custody. On the basis of that endorsement the District Munsiff sent Ext. P2 communication to the police requesting that necessary action may be taken against the accused. The police registered a case under Section 225-B of the Indian Penal Code and, after due investigation, the case was charge-sheeted in the Sub Magistrate's Court at Cannanore. At the trial the prosecution examined Pws. 1 to 6 and produced Exts. P1 to P5 and M. O. 1 and M. O. 2. Even though the accused pleaded not guilty to the charge against him, he did not care to examine any witness for him.

Of the witnesses examined for the prosecution, Pws, 2, 3 and 5 have already clearly deposed to the arrest of the accused from the custody of Pw. 5, and of the forcible escape of the accused from the custody of Pw. 5. The learned Magistrate believed and accepted the evidence of these witnesses and found that Pw. 5 had arrested the accused on the strength of the warrant Ext. P1 and that the accused had forcibly escaped from the custody of Pw. 5. These findings have been confirmed by the District Magistrate before whom the accused had preferred an appeal against his conviction, and sentence., Thus the trial court as well as the appellate court have believed the prosecution evidence and have concurrently found that the accused had committed the act alleged against him. That finding calls for no interference in revision. It may also be stated that in the revision petition the accused has not also challenged the correctness of that finding.

2. The only point raised in the revision petition is that the warrant Ext. P1 was not signed by any officer having the legal authority to do so and hence the arrest of the accused by Pw. 5 cannot be said to have been legal so as to constitute the escape from the custody of Pw. 5, an offence punishable under Section 225B of the Penal Code. No doubt, the gist of the offence under that section is resistance or obstruction to lawful apprehension or escape or rescue from lawful custody or attempt to secure such escape or rescue. In the present case the act committed by the accused is forcible escape from the custody of Pw. 5.

In order that this act may amount to an offence under Section 225B, two pre-requisites must have been satisfied and they are: (1) Pw. 5 had the legal authority to arrest the accused and (2) the warrant. Ext. P1 on the authority of which he was making the arrest had been legally issued by a competent authority. Pw. 1 is the decree-holder in O. S. 55 of 1950 and he has deposed that he had filed an execution petition praying that for realising the decree debt due from the judgment-debtor-accused, he may be arrested and sent to the civil jail. Such arrest followed by the detention in civil jail is authorised by Section 55 of C. P. C., Rule 24 of Order 21 of the same Code, prescribes the manner in which the process for the execution of the decree has to be issued. Clause (2) of Rule 24 states :

'Every such process shall bear date the day on which it is issued and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the court and delivered to the proper officer to be executed'.

3. Every one of the conditions required by this clause has 'to be satisfied by the warrant issued for the arrest of the judgment-debtor which is also a process for the execution of the decree. It is not contended on behalf of the accused that there was no order of the court for the issue of a warrant for his arrest in execution of the decree in O. S. 55 of 1950 or that the warrant Ext. P1 issued in pursuance of that order was not properly dated and sealed with the seal of the court. It is not also contended that Pw. 5 is not a process server of the court whose duty it is to execute such warrants, or that the warrant Ext. P1 had not been entrusted to Pw. 5 for execution.

There is also the evidence of Pws. 4 and 5 that all these details as contemplated by clause (2) of rule 24 of Order XXI were duly complied with. Pw. 4 who is the Deputy Nazir of the Munsiff's Court at Thaliparamba, has also stated that it was he who signed the warrant Ext. P1. The point raised on behalf of the accused-petitioner is that the Munsiff alone had the authority to sign the warrant. Such a contention cannot stand in view of the provision contained in rule 24 clause (2) wherein it is expressly stated that the warrant shall be signed by the Judge or by such officer as the court may appoint in this behalf.

It is clear from this provision that it was lawful for the Munsiff to authorise any other officer of the court to sign the warrant for the issue of which an order has already been passed by the Munsiff. Pw. 4 has deposed that the District Munsiff had issued a general order on 21-12-1953 authorising the Head Clerk of the court to sign such warrant. This statement of Pw. 4 has been believed by both the lower courts and I see'no reason to doubt the truth of that statement. There is a further argument advanced on behalf of the petitioner that the authority thus conferred on the Head Clerk could not be exercised by Pw. 4 who was only a Deputy Nazir.

Here again the objection is answered by the evidence given by Pw. 4 himself. He has stated that ion the date when the warrant Ext. P1 was issued he was the Acting Head Clerk of the Court, the permanent Head Clerk being on leave. It is obvious that the authority conferred on the Head Clerk is not the authority conferred on any particular individual but is a general authority available to anybody who holds the office of the Head Clerk for the time being. Pw. 4 must, therefore, be taken to have signed the warrant Ext. P1 not in his capacity as the Deputy Nazir, but in his official capacity as the Head Clerk for the time being.

The signing of the warrant in that capacity was in accordance with clause (2) of rule 24 of Order XXI. Subbaramiah v. Emperor, AIR 1934 Mad 206 (A), cited on behalf of the petitioner is distinguishable on this ground. In that case the warrant was held to be illegal because it was signed by the Deputy Nazir who had not derived any authority to do so in the manner contemplated by clause (2) of rule 24 of Order XXI. In In Re Mammed Beary, (S) AIR 1955 Mad 157 (B), it was held that where the Munsiff had authorised the Head Clerk under O. 21 Rule 24 Clause (2) of C. P. C. to sign the warrant of arrest issued under the orders of the court, the legality of the warrant signed by the Head Clerk was not open to any objection.

In the present case also the Head Clerk had been similarly authorised and this authority was available to Pw. 4 when he was functioning as the Head Clerk and as such the warrant Ext. P1 signed by him has to be accepted . as a legal and proper document on the authority of which the process server Pw. 5 effected the arrest of the accused. Such arrest and the consequent taking into custody of the accused by Pw. 5 cannot be said to be illegal. It follows, therefore, that by forcibly escaping from the custody of Pw. 3, the accused committed the offence punishable under Section 225B of the Indian Penal Code. His conviction was therefore proper. The sentence also does not call for any interference.

4. In the result this Criminal Revision Petition is dismissed.


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