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Ouseph Varkey and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1964CriLJ592
AppellantOuseph Varkey and anr.
RespondentState of Kerala
Cases ReferredDeoman Shamjl v. The State
Excerpt:
.....such a warrant escapes from custody it would not amount to an offence. a warrant directed to any police-officer may also be executed by any other police-officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. 440 endorsed on the warrant would, satisfy the requirements of section 79. a reference to the-forms in the criminal procedure code and the civil procedure code make the distinction between name and designation. the prosecution has, therefore, failed to prove that the apprehension was under a strictly legal warrant. 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 cooler of his..........four times in quick succession on his abdomen, hand, back etc. saying that he was stabbed kesavan nair held the first accused by his waist. pw. 2 had by then got up from the pit and he tied the hands of the first accused with his muffler. the first accused cried 'ayyo1 and it is alleged the second accused who was there asked the police party who they were to arrest without the sub-inspector, he took out his knife and aimd a stab at pw. 2. pw. 4 the other police constable caught hold of the second accused and pw. 2 with his lathi aimed a blow at the second accused asking hint to put down the knife. the second accused wriggled out of the hold and ran away.(3) the injuries on deceased kesavan nair were bandaged and they proceeded to the place where the jeep was stationed. the first accused.....
Judgment:

Govinda Menon, J.

(1) This is an appeal filed by accused 1 and 2 In Sessions Case 23 of 1962 on the file of the Sessions Judge of Kottayam. The first accused has been convicted Under Section 302 I. P. C, for causing the death of Kesavan Nair, a police constable. He is also convicted of the offences under Sees, 353, 224 and 324 IPC The second accused is found guilty and convicted of the offence punishable Under Section 225 IPC

(2) The first accused and three others were accused in C. C. 699/61 on the file of the Sub-Magistrate of Punalur. The accused had appeared in court and were enlarged on bail. Pws. 1 and 10 had stood surety far them executing surety bonds. As the accused did not appear in court, notice was issued to the sureties to show cause why their bail bonds should not be cancelled. On receipt of the notice they appeared in court and filed n application Ex. P-15 promising to assist the police to effect the arrest of the accused and have them produced iii court and wanted two weeks time for the purpose. The Sub-Magistrate granted the request and issued a warrant fit, P-2 for the arrest of the first accused in this case, his the warrant was to be executed outside the local limits of his jurisdiction, the warrant was forwarded to the Sub-Divisional Magistrate of Pohkunna.

The Sub-Divisional Magistrate endorsed the warrant for' execution to the Sub-Inspector of police, Mundakayam. He an turn, endorsed the warrant to Pw. 2 a police constable On 2-3-62 Pw. 2 went to the shop of Pw. 1, one of the sureties. Pw. 10 the other surety was also sent for. They informed Pw. 2 that it would not be possible to have the accused arrested during day time and that If Pw. 2 could come after 8 p.m. they would be able to point out the accused. Pw. 2, therefore, returned to the police station and reported the matter to the Sub-Inspector of police. He requested for additional aid and the Sub-Inspector deputed two other police constables Pw. 4, Thomas and deceased Kesavan Nair to assist him. They went in a jeep to the shop of Pw. 1 and from there Pws. 2, 4 and deceased Kesavan Nair accompanied by the sureties Pws. 1 and 10 proceeded to the house of the first accused. Pws. 2 and 4 were in their uniform and deceased Kesavan Nair was in plain clothes. They reached the house of the first accused and Pw. 2 enquired of his mother Whether her son the first accused was there. On being told that he was not there, they left the house and proceeding along the pathway sat on a rock by the side of the pathway in the rubber estate of Skaria awaiting the arrival of the first accused. At about 9 p.m., they saw people coming with light towards the north along the pathway. On seeing this they walked towards them and found the party who were coming were the two accuse and Pw. 13 Barber Kuttappan.

The first accused had a lighted candle fixed In a coconut shell and Pw. 13 had a torch light. Pw. 13 has given evidence that when they saw the police party coming the second accused told the first accused that it wet police who were coming and the first accused replied, 'let them come, we will see1. As soon as they neared the police party Pw. 13 ran away, Pw. 1 pointed out the first accused as the person against whom the warrant was issued. Pw. 2 then appraised the first accused that they were police constables, that there was a warrant for his apprehension issued by the Punalur Magistrate and caught hold of his hand in token of arrest. The first accused, thereupon pirshed him and Pw. 2 fell into a pit by the side of the pathway. Pw. 1 then approached the first accused requesting him not to do anything and the first accused whipped out his dagger M. 0. 1 and stabbed Pw. 1 three or four times on his hand and shoulder. Deceased Kesavan Nair then approached the first accused to catch him when the first accused turned towards him and stabbed him three or four times in quick succession on his abdomen, hand, back etc. Saying that he was stabbed Kesavan Nair held the first accused by his waist. Pw. 2 had by then got up from the pit and he tied the hands of the first accused with his muffler. The first accused cried 'Ayyo1 and it is alleged the second accused who was there asked the police party who they were to arrest without the Sub-Inspector, He took out his knife and aimd a stab at Pw. 2. Pw. 4 the other police constable caught hold of the second accused and Pw. 2 with his lathi aimed a blow at the second accused asking hint to put down the knife. The second accused wriggled out of the hold and ran away.

(3) The injuries on deceased Kesavan Nair were bandaged and they proceeded to the place where the jeep was stationed. The first accused was also with them. On the way they met Pw. 12 and then Pw. 17 and told them what had happened. They proceeded to the Mundakayam police station. When the jeep was stopped at the police station Pw. 4 took the first acctfsed to the station. At the Sub-Inspector was not there they returned to the jeep and took the injured Kesavan Nair to the hospital. The doctor was not there and Pw. 2 went and fetched the doctor. By that time the Sub-Inspector of police also reached. He recorded a statement Ex. P-1 from Pw-1 at 10-15 p.m. Pw. 1 was admitted as an in-patient. He was examined by Pw. 7 and his wound certificate is Ex. P-9. He was discharged on 5-3-62. After rendering first aid Kesavan Nair was removed to the District hospital, Kottayam for better treatment. Pw. 11 the Assistant Surgeon attached to the hospital admitted him as an in-patient at 1240 a.m. A letter Ext. P-4 was sent to the Sub-Magistrate-, Kottayam for recording the statement of Kesavan Nair. Pw. 3 the1 Sub-Magistrate came to the hospital and recorded the statement Ext. P-5. Pw. 11 the Medical Officer who was present has appended a certificate that the injured was in a position to understand the questions and give coherent answers. Pw. 14 the Chief Surgeon of the hcspital assisted by Pw. 11 per formed an abdominal operation. In spite of the best medical aid Kesavan Nair succumbed to his injuries the next day at 12-50 p.m. Information was given to the Kottayam East Police station and Pw. 8 the Circle Inspector reached the hospital and held the inquest. After the inquest Pw. 11 conducted the' autopsy. After qua- is Vabkey v. State of Kebala (Govinda Menon J.) 1964 (1) Ori. L. 3. tioning all the witnesses and completing the investigation Pw. 19 the Circle Inspector of police laid the charge sheet against both the accused.

(4) When questioned at the preliminary enquiry the first accused admitted that he was an accused in C. C. 699/61 of the Punalur Sub-Magistrate's court, that he was enlarged on bail, but stated that he did not know whether notice was sent to the sureties or whether warrant had been issued for his arrest. He stated that the police-men were not in uniform that there was no torch light or hurricane lantern with them, that he was not told about the warrant and he was not arrested.

In the Sessions Court he elaborated the statement by saying that on that day while he was returning to his house along pathway in the rubber estate, about five persons who were hiding behind the rubber trees, sprang Upon him, caught hold of him and they felled him down and thinking that he would be killed fie stabbed three or four persons. The second Accused stated in the committing Magistrate's court that on that day himself, the first accused and Pw. 13 came together and that there was no torch or hurricane lantern and that the police-men wre not in uniform.' He denied the overt act ascribed to him, In the Sessions court he stated that while they were coming the first accused had a lighted candle in a coconut shell, suddenly it went out and he heard the cry 'Ayyo, Ayyo' and the sounds of beating and fisting, that he was standing near a rubber tree 10 or 15 feet south and saw a light being flashed and in the light saw blood an the body of some of them and the first accused with tils hands tied and that he could identify Pws. 1 and 10 among them. He alleged enmity between himself and Pws. 1, 10 and 17. He stated that it was because he did not agree to be a prosecution witness, that he was falsely Implicated in the case.

The Vicar of the Kannimala Church was examined as a defence witness to prove enmity between the first accused and some of the witnesses.

(5) That Pw. 1 and Kesavan Nair sustained serious injuries in an encounter which admittedly took place on that day and that Kesavan Nair died as a result of the injuries is amply proved and is not disputed. The injuries on deceased Kesavan Nair have been correctly noted in' the postmortem certificate Ex, P-11. He had five incised wounds, injury No. 1 was a sutured incised wound 12 long on left side of abdomen commencing 1' to the right of the umbilicus and ending over the left flank Just below the left sub-costal margin. On dissection this injury was found to be opening into the abdominal cavity. There was a sutured Injury at the root of the mesentry and a sutured wound J' long on a part of the small Intestine. The Injury was found to be penetrating to the gut lumen. According to the doctor death was the result of syncope due to shock and haemorrhage from Injury No. 1 and the corresponding internal injuries noted. All the doctors who had occasion to examine him were of opinion that the penetrating abdominal injury were sufficient in the ordinary course of nature to cause death. Pw. l's injuries have been noted in the certificate Ex, P-9. They were all Incised Injuries.

(6) The question that arises for decision Is whether the Injuries on Pw. 1 and Kesavan Nair were caused by the first accused as alleged by the prosecution.

(After considering the evidence In paras 6, 7, 8 and 9 the judgment proceeded:)

(10) Having found that it was the first accused who Inflicted the injuries on the deceased which resulted in his death and having found that the occurrence took place in the manner spoken to by the prosecution witnesses, the next question is whether the first accused was justified in doing so and whether he had any right of private defence as contended for by his learned; counsel, What, is argued is that Ex. P-2 is not a legal warrant since it is not endorsed over by name to Pw. 2 as contemplated' it Section 79 of the Criminal Procedure Code and if In trying to execute such a warrant resistance is offered and injuries are caused to the person who executes such a warrant the accused cannot be said to have committed any offence.

(11) The learned Counsel referred us to a recent decision of this Court in Kunju v. State of Kerala 1961 Ker LJ 769 : 1962 (2) Cri LJ 437, decided by one of us, for the position that if the warrant Is not endorsed in the name of a particular person it will not be a legal warrant, and if a person arrested in pursuance of such a warrant escapes from custody it would not amount to an offence. It cannot be denied that for a conviction, Under Section 224 or 225 IPC the prosecution should show that the apprehension or the arrest made or attempted to be made was lawful in every way.

Section 79 Cr. P. C, says:

A warrant directed to any police-officer may also be executed by any other police-officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

The learned Public Prosecutor argued that 'name' denotes the distinctive appellation of an individual, and the endorsement P. C. 440 endorsed on the warrant would, satisfy the requirements of Section 79. A reference to the-forms in the Criminal Procedure Code and the Civil Procedure Code make the distinction between name and designation. P. C. 440 is the designation of the person and not his name. When the section speaks of giving a person's name there is no reason to think that his designation would suffice. The learned Public Prosecutor has not been able to point out any one decision which has held that endorsement in the warrant Under Section 79 without mentioning the name can be considered to be a legal warrant. We, therefore, find ourselves unable to agree that the endorsement need not be by name. The prosecution has, therefore, failed to prove that the apprehension was under a strictly legal warrant. It was also argued by the learned defence counsel that even the endorsement,. P. C. 440 would not be sufficient as there would be constables bearing the number 440 in other districts of the State and the endorsement even by designation should have P. C. K. 440. We hold that conviction under Sees. 224 and 225 I. P. C, cannot be legally sustained.

(12) But the legality of the warrant will not affect the legality of the conviction of the first accused. Reference may be made to Section 99 I, P, C. 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 cooler of his office, though that act may not be strictly justifiable by law.

The question is whether the arrest In this case 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'. Section 99 applies to cases where there is. jurisdiction to do an act, but that jurisdiction has been in some respects exercised wrongly. The words under 'colour of office' refer to irregular as distinguished from illegal acts. They show that the act was within the Jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. In other words, the Clause is not intended to cure1 the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle such an Irregularity, for example, an initialing warrant instead of signing it, the mode of delivering possession or the like1, It would be covered by this clause. The protection in favour of public servants rests partly on the probability that their acts will be lawful in which case resistance must necessarily be unlawful; partly on the theory that resistance Is unnecessary since the law will set right what has been wrongly done in Its name; and lastly on the ground that it is good for society that public servants Should be protected in the execution of their duty when they are in error.

(13) I shall now refer to some of the decisions bear-Ing on this question. One of the earliest case to which reference has been made is Queen-Empress v. Janki Prasad ILR 8 All 293. In that case a warrant was issued for the arrest of a debtor under the provisions of Section 251 of the Civil Procedure Coda. It was initialled by the Mandarin of the court, sealed with the seal of the court, and delivered to the proper officer for execution. The debtor forcibly resisted the officer. The warrant fulfilled the requirements except in one particular, namely that it was not signed by the Munsarim but only initialled by the Munsarim and the contention was that the warrant was bad and the officer could not legally execute it and consequently no offence under Section 353 of the Penal Code Dad been committed. Goldfield J., stated that because the signature on the warrant is confined to the Initials of the name it cannot be held that it was not the duty of the officer to execute the warrant. It was in all other respects in form and, therefore, it became the duty of the officer to execute it. He would, in fact, have failed In his duty in not executing it and any resistance to him will be resistance to a public servant in the execution of his duty as such. The- officer was acting in good faith under colour of his office and 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.

(14) In the case In Emperor v. Shankar Dayal 71 Ind Cas 62 : AIR 1922 Oudh 224 Kanhalya Lai, of the Judicial Commissioner's Court Oudh held that a warrant Issued1 under the Public Gambling Act, for search and arrest which does not contain the name of the person to whom it is issued, and to whom authority to make ths search and arrest are given is Irregular.

(15) In Mohamed Ismail v. Emperor AIR 1936 Rang 119 the arrest was held not justified under the Code, but still it was held that the accused could be convicted Under Section 323 I. P. C, for causing hurt to the police-officer executing the warrant, as Under Section 99 I. P. C, them Is no right of private defence in a case where1 a police officer was acting bona fide under colour of his office.

(16) In state v. Yemanappa Umbaji ILR (1956) Bom 661 the District Superintendent of police issued a notice calling upon the accused, a dismissed constable, to vacate Within seven days the premises occupied by him in the police quarters. When the Sub-Inspector of police went to the premises to execute the order of D. s. P., the accused offered resistance and caused hurt to the Sub-Inspector. On being prosecuted Under Section 332 of the Indian Penal Code, a contention was raised that the-D. S. P. had no authority to issue an order of forcible eviction Under Section 31 (2) of the Bombay Police Act, that when the Police Subnspector went to evict him forcibly he was not acting in the discharge of his duty and that in resisting him the accused had not committed any offence. It was held that even though there was no notification by the State Government authorising the D. S. P. to exercise powers Under Section 31 (2) of the Act and therefore the order passed by him was without authority, the order was not ex facie bad or defective, the police Sub-Inspector was in executing the order acting in the discharge of his duty as a public servant and the mere fact that the order was defective for want of authorisation did not justify the accused in resisting its enforcement and that, in any case, as the police officer was acting in good faith under colour of his office the accused had no right of private defence.

(17) The same view has been taken by the Madras High Court in In re, Ganpathia Pillai : AIR1953Mad936 . There an Assistant Inspector of Labour made a surprise inspection of a shop and the owner of the shop pushed -him and snatched the register from his hand. Even though it was held that the search, was irregular the1 question was whether Section- 99 applied to the case. Ramaswaml J., explained the import of the words 'colour of office'. His Lordship said:

They refer to irregular as distinguished from illegal acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds, in short, the act has been done wrongly though- it might have been- done rightly. In other words, the clause- is not intended to cure the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle such an irregularity for example as initialling s warrant instead of signing it, the mode of delivering possession or the like It would be covered by this clause'. Reference was made- by the learned Judge to the decisions in Queen-Empress v. Tiruchittambala ILR 21 Mad 78; Queen?mpress v. Poomala ILR 21 Mad 296; Queen-Empress v. Ramayya ILR 13 Mad 148; Queen-Empress v. Pukotkotu ILR 19 Mad 349; Bhawoo v. Mulji ILR 12 Bom 377 : ILR 8 All 293; Bhailal v. Emperor ILR 29 Cat 417: Dorasamy Pillai v. Emperor ILR 27 Mad 52; Ghulam V. Emperor AIR 1936 Lah 851 and Muni Reddl, In re AIR 1948 Mad 472.

(18) Bearing these principles in mind it Is idle to contend that what the public servant Pw. 2 had done was not in good faith and under colour of his office. There is convincing evidence in this case that the Sub-lnspectoi of Police to whom the warrant was Issued endorsed It to Pw. 2 noting the number of the constable In the warrant. Pw. 2 was in uniform. It has come out In evidence that Pw. 1 had already told the first accused that a warrant had been Issued by the court for his apprehension and that he should appear in court and not create trouble for the sureties. Pw. 13 has deposed that when the police officers were sighted the first accused was told by the second accused that policemen were coming to arrest and the first accused said 'let them come, we will see'. Pw. 2 on meeting the first accused appraised him of the contents of the warrant thereby satisfying the provisions of Sep. 80 of the Criminal Procedure Code and caught his hand thereby showing that he was under arrest. Therefore, it can safely be held that Pw. 2 was acting in good faith under colour of his office and the first accused had, therefore, no right of private defence as laid down' in Section 99 of the Penal Code, It must also be remembered that when the first accused assaulted Pw. 2 and stabbed Pw. 1, deceased Kesavan Nair went there to pacify and prevent the accused from doing further harm.

(19) learned Counsel for the defence brought to our notice the decision in T. Subbarao v. State of Andhra Pradesh : AIR1960AP110 . That was a case where a Commercial Tax Inspector forcibly removed account books from the accused who was a clerk of a mill against the notification of the Government. It was held that the action of the Inspector was ultra vires of their powers and illegal and therefore the accused had a right In law to resist such illegal actions in exercise of their general right of private defence, and that if in the course of such exercise of the right of private defence, the officer was pushed it would not amount to an offence as the force was used in exercise of the right of private defence open to the. accused in law.

(20) Likewise Ramsaran Singh v. State of Bihar : AIR1960Pat232 was a case where the Magistrate had no jurisdiction to issue a distraint warrant. It was held that the warrant must be treated as a nullity and therefore the petitioner was justified in doing what they did and the conviction cannot stand.

In the case in Narsayya Lachmayya v. The State AIR 1953 Nag 292 it was held that the failure of the Magistrate to pass an order Under Section 112 before he issued a warrant Under Section 114 Cr. P, C, is hot a mere irregularity, but constitutes an illegality. There was an express breach of a mandatory provision of law and the action of the Magistrate was considered as wholly illegal and without jurisdiction.

The same was the case in Deoman Shamjl v. The State : AIR1959Bom284 where some police constables who had no legal authority to require the accused to submit to medical examination forcibly dragged him towards the dispensary. It was held that what they had done was wholly beyond their powers and the accused had the right of defending himself against the force sought to be illegally exercised against his person, Since the action of the police constables was altogether outside the scope of their powers, it could not be said that they acted with 'due care and attention' and therefore in 'good faith'.

All these cases are cases where there is a total lack of jurisdiction and therefore have no application to the facts of the present case.

(21) On a careful consideration of all these circumstances, we have no hesitation in holding that the conviction of the first accused is well justified. Kis conviction Under Section 224 I. P, C. has to be set aside. As far as the second accused is concerned he has been convicted only Under Section 225 IPC As we have held that the warranty Is not strictly legal, his conviction Under Section 225 I. P. C, cannot be maintained. Even otherwise on the evidence we are not satisfied that offence Under Section 225 I. P. C, is made out egainst him. The overt acts now ascribed to him have not been mentioned in the earlier records.

In the result, the conviction and sentence passed on the first accused under Secs. 302, 353 and 324 I. P. C, are confirmed. His conviction and sentence Under Section 224 I. P. C, is set aside.

The conviction and sentence of the second accused Under Section 225 I. P. C, are set aside and he is ordered to be acquitted.


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