J.S. Ranawat, J.
1. This case was referred to a Division Bench by one of us sitting singly. The facts of the case have been given in the order of reference and we need not repeat them over again.
2. The accused Pangir was convicted by the court f the Sub-divisional Magistrate, Nohar on the 31st of January, 1958 under Sections 353 and 225B I.P.C His convictions were confirmed on appeal by the Additional Sessions Judge, Ganganagar on the 13th of March, 1958. It was held by both the courts that the accused Pangir obstructed Ganpat Singh. Head Constable of Police while the latter was taking Mst. Lichhma with him after having arrested her in pursuance of a warrant issued by the Sub-divisional Magistrate of Nohar and he rescued her from the custody of Ganpat Singh. It was also held that he used criminal force and assaulted the Police officer while lie was performing his duty.
In this appeal, it is contended that the warrant issued by the magistrate was illegal inasmuch as it did not bear the seal of the court and the action of the accused in obstructing and in rescuing Mst. Lichhma was therefore not punishable under Sections 353 and 225B I.P.C. In support of the contention, the decisions in-
1. Alter Caufman v. Government of Bombay ILR 18 Bom 636; 2. In re James Hastings 9 Bom HC 154; 3. Mahajan Sheikh v. Emperor ILR 42 Gal 708 : AIR 1915 Cal 737: 4. In re Abdul Rahim Beg AIR 1920 Mad 352(1) and 5. Dasondhi v. Emperor AIR 1928 Lah 332(1) were relied upon, and in reply to this contention of the counsel of the appellant, the decision in Abdul Kadir v. The Crown 10 Pun Re 23 was cited. The point at issue is whether the formality of seal on a warrant issued under Section 75 of the Code of Criminal Procedure is to be regarded as mandatory and the warrant is to be treated invalid and void to a case where such a seal is not affixed thereon. At common law in England affixation of a seal is considered to be very necessary and the absence of a seal on a warrant is regarded as fatal for its validity. Section 75 Cri.P.C. enacts the principle of the English common law, and provides that-Every warrant of arrest issued by a Court under this Code shall be in. writing, signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court.
A warrant of arrest is to be read out or its purport conveyed by the officer executing it to the person who is arrested and if such person makes a demand, it has to be shown to him under Section 80 of the Criminal Procedure Code. In order that the person arrested may satisfy himself regarding the authenticity of a warrant it seems necessary that a seal of the court should appear on it. In a number pi cases, it has been held by the various High Courts in India that absence of a seal on a warrant of arrest renders it void and invalid and obstruction to the execution of such a warrant of arrest is not punishable by Sections 225 and 353 I.P.C.
3. In ILR 18 Bom 636 the petitioner Alter Caufman was arrested by the Police in pursuance of a warrant of arrest issued by the Governor of Bombay under Act No. Ill of 1864. The petitioner was a foreigner and he in spite of an order of the Government to leave India, remained at Bombay. A warrant of arrest was therefore issued and he was arrested in execution of the same. An application for a writ of habeas corpus was filed in the High Court of Bombay and a rule was issued for the production of the petitioner before the Court. The warrant under which the petitioner was arrested was defective inter alia for the reason that it did not bear a seal on it.
The High Court of Bombay relying on the decision In re. Phipps (1863) 11 WR 730 and 9 Bom HC 154 held that the warrant was void for that reason, The Act under which the warrant was issued did not prescribe any form of the warrant and it was held that the Criminal Procedure Code applied to a warrant issued under the said Act and the requirements of signing and sealing of the warrant under the Code must have been followed in that case. In view of the defect of there being no seal on the warrant, the arrest of the petitioner was held to be illegal and he was set at liberty.
4. In ILR 42 Cal 708 : AIR 1915 Cal 737, Jenkins, C.J. and Teunon, J., held that the absence of a seal on a warrant made a warrant issued under Section 75 of the Code of Criminal Procedure void. The arrest in execution of such a warrant was held consequently to be illegal. The petitioner was therefore ordered to be released from the custody.
5. In AIR 192C Mad 352(1), summons was held to be illegal for want of a seal thereon on the analogy of the principle underlying the decision in ILR 42 Cal 708 : AIR 1915 Cal 737 in which a warrant Was held to be void on account of a defect of the absence of a seal on it. Sanction to prosecute the petitioner for disobeying the summons was under those circumstances refused.
6. In AIR 1928 Lah 332(1), it was held that resistance to apprehension under a warrant bearing no seal was not an offence under Section 225 I.P.C. It was observed that:
Under Section 75, Criminal P.C., every warrant must bear the seal of the Court and there is authority for holding that the omission of the seal on a warrant renders it void and a person offering resistance to apprehension on such a warrant does not commit an offence under Section 225B, I.P.C.
The decisions in ILR 42 Cal 708 : AIR 1915 Cal 737 and ILR 18 Bom 636 were relied upon.
7. In King v. Maung Po Shein AIR 1939 Rang 320 a warrant was defective inasmuch as no seal of the court was affixed thereon. Resistance was offered to the execution of the warrant and the persons offering resistance were prosecuted for an offence under Section 225B I.P.C. It was held by the High Court of Rangoon that the warrant on which the arrest was made did not bear the seal of the court and was therefore invalid and the resistance offered to the arrest was therefore not an offence under Section 225B I.P.C.
8.In In re Bhullikhan Mansabkhan AIR 1938 Nag 45 a warrant of arrest under C.P. Land Revenue Act for the recovery of land revenue was issued which did not bear the seal of the court. It was held that:
If a warrant of arrest for the recovery of land revenue does not bear the seal of the Court issuing it, the warrant has no force and the arrest under it is not legal and breaking such arrest is no offence.
9. In Girdharilal v. The Crown 23 Pun Re 1910 p. 73 Cr. a search warrant was issued by the magistrate under Section 5 of the Gambling Act, 1867, and the Police, in execution of the said warrant, raided the house of Girdhari Lal and arrested him. He was prosecuted and in his defence it was urged that the warrant issued by the magistrate did not bear the seal of the court and the warrant was signed by the magistrate at a place outside the local limits of the jurisdiction. The Punjab Chief Court held that the defect of there being no seal on a warrant was an irregularity only and did not render the warrant void. The other defect was held to be fatal and the conviction was set aside on that ground. In distinguishing the decision in ILR 18 Bom 636 it was observed that after the decision in the said case, the Criminal Procedure Code of 1898 came into force and an illustration to Section 537 referred to the defect of initialing a warrant instead of signing it as being cured by Section 537. The defect of initialing a warrant was regarded similar to the defect of the absence of a seal and by way of analogy it was held that the defect of the absence of the seal was an irregularity only.
It may be noted that by the Criminal Procedure Amendment Act, 1923, the illustration on which ratio decidendi was based in Girdharilal's case has been deleted and the position therefore would remain as it was before the illustration was added. Moreover, the defect of initialing a warrant cannot be regarded to be a defect at par with that of the defect of the absence of a seal. Putting initials may be regarded to be as good as signing a warrant by putting full signatures. The same cannot be said about a seal. We are of the opinion that the defect of there being no seal on a warrant of arrest is fatal for the validity of a warrant. In the instant case the warrant did cot bear the seal of the court of the magistrate and was, therefore, illegal. Consequently the custody of Mst. Lichhma was illegal and the accused who obstructed the execution of such a warrant cannot be held liable to punishment under Section 225B or Section 353 I.P.C.
10. Mr. Chatterji has urged that even though no offence under Sees. 225-B and 353, I.P.C. of the Penal Code may be established against the petitioner, his conviction under Section 147, I.P.C. cannot be held to be illegal on account of the said defect. The petitioner along with 13 others, it was stated, used criminal force and assaulted the Head Constable in rescuing Mst. Lichhma who was at that time in custody. He has referred to the decision in Attar Singh v. Emperor AIR 1918 Lah 332, in which the accused were acquitted under Sections 332 and 225 I.P.C., for the reason that the warrant of arrest was illegal, but the conviction under Section 147 I.P.C. was held to be proper for the reason that the accused persons acted in pursuance of their common object of using criminal force and causing hurt to the officers of the Police in rescuing a lady who had been arrested in execution of an illegal warrant. In the instant case, the trial court convicted 13 persons including Pangir. The learned Sessions Judge, who heard the appeal, acquitted all of them, except Pangir for the reason that there was insufficient evidence to establish their identity among those who took part in the occurrence. The learned Judge failed to record a finding as to the number of persons, who, in his opinion, took part in rescuing Mst. Lichhma. We shall, therefore, have to examine whether five or more persons participated in the commission of the offence. In his report the Head Constable mentioned that Pangir and 14 others rescued Mst. Lichhma by use of criminal force.
He named three of them only and stated that he could identify the rest by faces. In course of the investigation, other accused persons were also named and 17 persons were challenged by the Police. The trial court convicted 14 persons in all. The learned Sessions Judge acquitted the accused as there was insufficient evidence to secure their identity for participation in the occurrence. In view of the evidence that has come on the record, we are of the opinion that the number of persons who took part in using criminal force and in rescuing Mst. Lichhma was more than five. In this view of tile matter, the conviction under Section 147 I.P.C. may be considered to be legal and the defect in the warrant of there being no seal on it cannot be considered to be of any significance in this connection.
11. We partly allow the reference and set aside the convictions and sentences of Pangir under Sections 353 and 225(b) I.P.C., and maintain his conviction under Section 147 I.P.C. The learned Counsel states that Pangir had already undergone about four months' rigorous imprisonment when he was sentenced to three months' rigorous imprisonment and a fine of Rs. 100/- under Section 147 I.P.C. and that the sentence already undergone may be held to be sufficient under the circumstances of the case. The request of the learned Counsel does not appear to be improper. We, therefore, order that the sentence already undergone by the accused shall be held to be sufficient to meet the ends of justice under Section 147 I.P.C. The sentence of fine is set aside and if amount has been deposited, it shall be refunded to him.