P. Govinda Menon, J.
1. Accused 1 and 2 in C.C. 252 of 1939 on the file of the Munsiff-Migistrete, Paravur are the revision petitioners. There were in all six accused. They were convicted Under Sections 147, 224, 225 and 353 IPC In appeal accused 3 to 6 were acquitted. The 1st accused was convicted Under Section 224 IPC and sentenced to rigorous imprisonment for 8 months and the 2nd accused was convicted Under Section 225 IPC and sentenced to undergo rigorous imprisonment for 4 months.
2. The learned Counsel for the petitioners has assailed the conviction: on the ground that the arrest of the .1st accused was not lawful and as such no offence is committed by either of the accused. Sections 224 and 223 of the Indian Penal Code deal with the resisdance or escape from lawful apprehension. It is essential for the conviction under these nektons that the prosecution should show that the apprehension or arrest made or attempted to be made was lawful in every way. The learned Public Prosecutor has not contested this position. So the question for decision would be whether the warrant on the basis' of which the arrest was made, is a legal warrant. The main contention is that the endorsement on the warrant by the Sub-Inspector of Police t0 the Police Constable Pw. 1 who effected the arrest was not in proper form as required Under Section 79 Criminal Procedure Code.
3. Section. 79 says that:
A warrant directed k 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.
4. Here in this case the endorsement is not by name. I have been referred to the decision in Durga Tewari v. Rahman Buksh 4 CU WN 85 where a Division Bench, of the Calcutta High Court had to consider this question. Tea' was a case where a warrant was issued for the arrest of an accused to the court Sub-Inspector who endorsed it to the officer in charge of another police station. Ht was then re-endorsed in favour of the officer in charge of another police station. In none of the endorsements was any name given, as is required by Section 79 Criminal Procedure Code. It was held:
Whatever may be the practice in this district in regard to the execution of warrants of arrest through endorsements, it is quite clear that under the terms of Section 79 Criminal Procedure Code, the endorsement' should be regularly made by name to a certain person in order to authorise him to make the arrest. In this instance there was no such endorsement and therefore, the arrest was not a legal arrest so as to make the petitioners liable for any offence in regard to it.
I have not been shown any decision which takes a contrary view.
5. It was further contended that there is no proof that the warrant has been duly signed by the Presiding Officer. Nether the Magistrate) nor his clerk has been examined to prove that the warrant bears the signature of the Magistrate. It was addressed to the Sub-Inspector of Police Pw. 8, bit did not in his evidence state that the warrant has been signed by the Magistrate and that he on receipt of the same duly endorsed it over to Pw. 1 Under Section 79. He does not even say that the initial seen the endorsement is his. Pw. x the Police Constable also in his evidence has only identified th0 warrant Ext. P-l, but did not attempt to prove that the Sub-Magistrate has signed the warrant or that the initial seen in the endorsement is that of the Sub-Inspector of Police. Though not illegal it is always desirable that there must be the full signature of that endorsing officer. Here there is only the initials and even that too have not been proved. The essential thing for the prosecution to prove in such eases is the legality of th& warrant. It is only then that the apprehension or arrest becomes lawful- Otherwise the accused would be entitled to take advantage of the unsatisfactory nature of the evidence and contend that there is no proof that the arrest was legal. If this had been the only defect, I would have held that there is the presumption that all official acts are properly performed, but in view) of the fact that there is the defect in the endorsement also, (T am constrained to hold that the prosecution has failed to prove that the arrest is legal.
6. It cannot also be contended by the prosecution that even though the endorsement be defective any police officer has a right of arrest given to him by Section 54(1) Criminal Procedure Code and if arrest is made it must be deemed to be a legal arrest. In the first place the constable did not purport to act without a warrant and there is no case that apart from th-invalid warrant he had any knowledge or suspicion of his own. that the first accused was concerned in any cognizable offence. What he actually did was to endeavour to execute the warrant.
7. In re, Appaswamy Mudally A.I.R. 1924 Mad 555 it was observed that if a constable in effecting an arrest specifies a certain power which proves to be wanting, resistance to him or escape from his custody constitutes no offence. Therefore to hold that Section 54 applies In such cases without any intimation to the accused and Without any allegation by the constable in his deposition that he proceeded under the Section would be to nullify several salutary provisions contained in the Code of Criminal Procedure re- garding the execution of warrants of arrest.
The same view was taken in Mousi Lull v. Emperor 48 Ind Cas 340 : A.I.R. 1918 Pat 252.
8. In this view the conviction and sentence passed on the accused is unsustainable and are set aside and they are ordered to be acquitted. The revision petition is allowed.