1. The question to be decided is whether the first and second accused were rightly convicted under Sections 225 and 224 of the Penal Code for resistance or obstruction to lawful apprehension respectively.
2. The second accused was the person who was being apprehended. The case against him, it is common ground, depends upon the evidence of the first witness for the prosecution. It has been read out to me and I am of opinion that it discloses no case against the second accused of his having intentionally offered any resistance or illegal obstruction to the lawful apprehension of himself.
3. I am not prepared to say however that there is no evidence as his having escaped or attempted to escape from custody in which he was detained assuming that he was lawfully detained. He was in custody at the time when the first accused and others came to rescue him. Though the direct evidence is that the others 'took him away,' from that fact the inference that the second accused escaped with the assistance of those who 'took him away' is not very violent or unreasonable.
4. The result is that I am not prepared to interfere on the finding of fact that the second accused escaped from lawful custody assuming that the custody was lawful.
5. The next question is whether the second accused was in lawful custody. He had been let out on his own bond to appear in the Court,
6. The Magistrate refers to the subsequent proceedings in his cross-examination in the following terms:
I issued the warrant (Exhibit A) on the written requisition of the Sub-Inspector if I remember right. When I issued the warrant I did not ascertain whether the second accused had executed a bond, for hit) appearance whenever required before this Court. I do not remember to have recorded any reasons for issuing the arrest warrant.
7. The warrant issued was in Form No. II under Schedule V to the Criminal Procedure Code which purports to have some reference to Section 75 of the Criminal Procedure Code. That is the common form. It is argued before me first that the Magistrate must be taken to have proceeded under Section 90. Several objections are taken to this argument. One is that Section 90 requires reasons to be recorded and this has not been done. I am of opinion that the warrant was vitiated by this fact. It is argued that the omission to do so is such an irregularity as is contemplated in Section 537 and that the conviction should not for that reason be quashed. I think however that assuming that Section 90 applies to a case of this kind the recording of reasons is a necessary preliminary to the exercise of the jurisdiction and the omission to do so cannot be overlooked. In this connection I must advert to the provisions of Sections 91 and 92. The latter section has reference to the case of a person who is bound by a bond to appear in Court. It provides for a warrant only in case the person does not appear at the time when he is bound to appear, it does not therefore apply to a case like the present where prior to the time for appearance arrest by warrant is sought to be effected. Section 92 not being directly applicable,. I will assume (without expressing any opinion on the point) that Mr. Smith's argument for upholding the conviction was sound and that in such a case as the present a warrant for arrest under Section 90 may be lawfully issued. If so it seems to me that it is in effect setting aside the previous order of the Court by which the accused was [let out on his own bond. The legislature requires in such a case that the reasons for proceeding by warrant should be recorded in writing. It is on this ground that, assuming the warrant was as a matter of fact purported to be issued under Section 90 and assuming that it could lawfully be issued under the section, it is a necessary preliminary for the exercise of the power that reasons should be given in writing; and failure to do so vitiates the warrant in my opinion.
8. Another argument taken before me was that the warrant could have been issued under Section 501 of the Criminal Procedure Code. Section 501 applies to a case where there are sureties and where through mistake, fraud or otherwise insufficient sureties have been accepted. The section is obviously inapplicable and the point was not pressed before me. The convictions will be set aside and the fines, if paid, will be refunded.