1. The petitioners were charged under Sections 225B & 353, Indian Penal Code on the allegation that Hiralal failed to attend as a witness when summoned by the Settlement Officer whereon the Settlement Officer issued a warrant of arrest against him. A settlement peon in executing the warrant laid hands on Hiralal whereon he called up the two other petitioners who assaulted the peon and assisted Hiralal to escape. Petitioners were convicted and appealed but their appeal was dismissed, They now ask for revision of this appellate decision.
2. The warrant (Exhibit I) contains an obvious flaw. The name of Hiralal only appears in the heading ('Government v. Hiralal') of the proceeding for the purposes of which the witnesses' attendance is required. Clearly many witnesses with various names might be wanted in a case of 'Government v. Hiralal.' The name of the witness to be arrested is the most essential part of the warrant and that is lacking.
3. The Appellate Court held this flaw to be curable ('Hiralal could not be misled by it.') The defence is the right of private defence and apparently the court held that Section 99, Indian Penal Code applied - that the act was done in good faith though not strictly justifiable by law.
4. But there is good authority for holding that Section 99 applies to acts where jurisdiction is wrongly exercised, not where there is complete absence of jurisdiction.
5. I therefore recommend that the findings and sentences of the Lower Courts be reversed, on the ground that the peon acted without jurisdiction and consequently was not a public servant within the meaning of Section 353, Indian Penal Code, and further that the petitioner's apprehension was not lawful within the meaning of Section 226-B, Indian Penal Code. It thus appears that the offences were not made out against petitioners, and their conviction is not legal.