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In Re: Thangapandian Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1943Mad280; (1943)1MLJ59
AppellantIn Re: Thangapandian Nadar and ors.
Excerpt:
- - if he had been a little more acquainted with the procedure for effecting the arrest of deserters from the army, he need have had no apprehensions about his failure to exhibit the order. the procedure is for the commanding officer concerned to send a written report of the desertion to the civil authorities, who 'shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate. he briefly endorsed the order to the head constable who effected the arrest. magistrate has centred round the failure of the head constable to produce the letter, ex. c, which had been endorsed to him......code was not properly observed, because it eventually came out in cross-examination that the head constable who effected the arrest had not got with him the authority on which he relied for making the arrest. the second point is that the learned sub-divisional magistrate has not considered the evidence regarding the offences under sections 447 and 353 of the code.3. regarding the first point, an attempt was made before the trial magistrate to show that the head constable had not shown the deserter the written order contemplated by section 56 (1) and therefore the arrest was illegal and the accused were entitled to release their companion from this unlawful custody. the head constable found himself in some difficulty in explaining this and he obviously resorted to a considerable.....
Judgment:

Byers, J.

1. The four petitioners were convicted by the Stationary Sub-Magistrate of Nanguneri of offences punishable under Sections 447, 353 and 225 B of the Indian Penal Code for the part they are alleged to have taken in rescuing from lawful custody a deserter from the army who had been recently arrested by the local station house officer. They were also convicted of rioting but this conviction was set aside on appeal by the learned Sub-Divisional Magistrate when he confirmed the convictions and sentences under the other three sections.

2. There are two points taken in revision. The first of them is that the procedure indicated by Section 56 of the Criminal Procedure Code was not properly observed, because it eventually came out in cross-examination that the Head Constable who effected the arrest had not got with him the authority on which he relied for making the arrest. The second point is that the learned Sub-Divisional Magistrate has not considered the evidence regarding the offences under Sections 447 and 353 of the Code.

3. Regarding the first point, an attempt was made before the trial Magistrate to show that the Head Constable had not shown the deserter the written order contemplated by Section 56 (1) and therefore the arrest was illegal and the accused were entitled to release their companion from this unlawful custody. The Head Constable found himself in some difficulty in explaining this and he obviously resorted to a considerable amount of prevarication in an attempt to conceal from the Court the fact that he had not taken with him the order directing him to make the arrest. If he had been a little more acquainted with the procedure for effecting the arrest of deserters from the army, he need have had no apprehensions about his failure to exhibit the order. Section 123 (1) of the Indian Army Act governs the procedure in these matters. The procedure is for the commanding officer concerned to send a written report of the desertion to the civil authorities, who ' shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate.' The authority informed in this particular case was the District Superintendent of Police, Tinnevelly, and he forwarded the report to the Sub-Inspector of the particular police station. He briefly endorsed the order to the Head Constable who effected the arrest. It will be seen, therefore, that no warrant is actually issued in such a case but the deserter is to be arrested as if a warrant had been issued and therefore Section 56, Criminal Procedure Code, which applies to arrests without warrant, can have no application to a case of this kind. The provisions of Section 80 and the following sections of the Code will apply. All that Section 80 requires is that the substance of the warrant shall be notified to the person to be arrested and, if the police officer be called upon to do so, he must also show him the warrant. There has never been any suggestion that the Head Constable did not tell the deserter the reason for his arrest and the discussion both in the Sub-Magistrate's Court and the Court of the Sub-Divisional. Magistrate has centred round the failure of the Head Constable to produce the letter, Ex. C, which had been endorsed to him. It is open to argument that if the deserter had called upon him to produce his authority, the Head Constable should have shown him, Ex. C, as if it were a warrant under Section 80 of the Code. But, on the other hand, it may be contended that as a deserter can be arrested under Section 123 (1) of the Indian Army Act without any warrant, the production of a warrant cannot be insisted upon. Moreover, Section 54 (1) of the Criminal Procedure Code empowers any police officer to arrest without any warrant and without any order from a Magistrate any person reasonably suspected of being a deserter from His Majesty's force, and, therefore, all that the Head Constable required to enable him to act was a suspicion that the person he was about to arrest was a deserter. Hence no question of the production of a warrant or an order can arise.

4. Regarding the second point, the argument in the appeal before the learned Sub-Divisional Magistrate seems to have proceeded entirely on Section 56, Criminal Procedure Code and the facts constituting offences under Sections 447 and 353 of the Indian Penal Code do not appear to have been traversed at all. Mr. V. T. Rangaswami Iyengar, the petitioners' learned advocate, has suggested that there was, in fact, no evidence on which these convictions could be rested. According to the judgments of the lower Courts, the petitioners were guilty of a gross interference with public officers in the exercise of their duty. They forced their way into a police station and rescued from police custody a deserter from His Majesty's army who had been lawfully arrested and who is now, I am informed, still at large in spite of the lapse of another nine months. The convictions are upheld. The sentences are by no means excessive. The petition appears to be without any real substance and it is ordered to be dismissed.


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