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Superintendent and Remembrancer of Legal Affairs Vs. Mozam Molla and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in48Ind.Cas.687
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentMozam Molla and ors.
Cases ReferredGurameah v. Emperor
Excerpt:
criminal procedure code (act v of 1898), sections 96, 100 - warrant under section 100--using form of warrant under section 96, legality of. - .....warrant indicated that it was issued under that section. in [this case there being no prescribed form of warrant under section 100, the magistrate who issued it adapted a form under section 96 to the provisions of section 100 by altering the figures and also by drawing up the warrant in terms required by section 100. this being so, the warrant would be perfectly legal. for this we find an authority in the case of gurameah v. emperor 13 ind. cas. 1002 : 16 c.w.n. 336 : 39 c. 403 : 13 cr. l.j. 186, where the form of a warrant under section 98 was used with the necessary alterations for a warrant under section 100. it is immaterial what form is used, provided that the sub-stance of the warrant complies with the requirements of section 100. that it certainly did in the case before us. it.....
Judgment:

1. In this case the accused persons were convicted by a Deputy Magistrate of offences under Section 353 and 147, Indian Penal Code, and sentenced Israil to eight months' and the rest to six months' rigorous imprisonment each. The accused appealed to the Sessions Judge who acquitted them on a question of law. He held that the ruling in the case of Bisu Haldar v. Emperor 11 C.W.N. 836 : 6 C.L.J. 127 : 6 Cr.L.J. 38 was conclusive in this case. The facts, he said, were identical. Against that acquittal the Government have appealed. It appears clear that the facts of the two cases are not identical. A perusal of the judgment in the case of Bisu Haldar v. Emperor 11 C.W.N. 836 : 6 C.L.J. 127 : 6 Cr.L.J. 38 shows that not only was the warrant in that case issued under Section 96, Criminal Procedure Code, but that the terms of the warrant indicated that it was issued under that section. In [this case there being no prescribed form of warrant under Section 100, the Magistrate who issued it adapted a form under Section 96 to the provisions of Section 100 by altering the figures and also by drawing up the warrant in terms required by Section 100. This being so, the warrant would be perfectly legal. For this we find an authority in the case of Gurameah v. Emperor 13 Ind. Cas. 1002 : 16 C.W.N. 336 : 39 C. 403 : 13 Cr. L.J. 186, where the form of a warrant under Section 98 was used with the necessary alterations for a warrant under Section 100. It is immaterial what form is used, provided that the sub-stance of the warrant complies with the requirements of Section 100. That it certainly did in the case before us. It has been suggested that the warrant was altered after issue to meet the objections raised in this case. As to that there is no evidence whatever on the record; on the contrary, there is the evidence of P. W. No. 12, who states that he altered it with his own hand before the issue. We accordingly set aside the order of acquittal passed by the learned Sessions Judge and remand the case to the Sessions Court for a hearing of the appeal on the merits. The accused may remain on bail pending the hearing of the appeal.


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