Holmwood and Sharfuddin, JJ.
1. This was a Rule calling upon the District Magistrate of Chittagong to shew cause why the conviction and sentence passed on the petitioners should not be set aside on the ground that, on the facts proved, it ought to be held that the alleged search warrant was illegal and without jurisdiction, and resistance, if any, to the execution thereof does not amount to any offence.
2. We are unable to find on the facts that the alleged search warrant was either illegal or without jurisdiction. The order of the Magistrate passing it was made with jurisdiction, and it was an order for a warrant under Section 100 for Mamuda Khatun for immediate appearance. Now that warrant was snatched away and destroyed by the accused persons, and it must, therefore, be presumed that it contained the substance of what is set out in Section 100 although admittedly it was drawn up on a form which is printed for use under Section 98. Now, under Section 100 the only kind of warrant that can be issued is a search warrant, and the person to whom such warrant is directed may search for the person so confined, and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before the Magistrate. Now, let us see how this warrant under Section 100 can be conveyed on a form under Section 98. It is perfectly clear that the form under Section 98, after scratching out Clauses (c) and (d), would be perfectly sufficient for the execution of a. process under Section 100. It is in evidence that there is no form printed under Section 100, and that the form under Section 98 is always used for these warrants under Section 100. We must, therefore, take it that the portions which had to be altered were altered. But a warrant under Section 98, used for the purpose of Section 100, would run perfectly correctly in the words of Section 98--to enter, with such assistance as may be required, such place, that is, the house whore the woman was confined, and to search the same in the manner specified in the warrant, and to take into custody and carry before the Magistrate the person named therein. Now, the evidence is that the person named therein is this Mamuda Khatun. We, therefore, find that the alleged search warrant was not illegal nor without jurisdiction, and that any resistance thereto was, therefore, an offence.
3. Several cases have been cited to us, but there is only one of them which in any way touches this case and this is the ruling in Bisu Haldar v. Probodh Chandra Chakravarti (1907) 6 C.L.J. 127. There the person applied under Section 100 of the Criminal Procedure Code for a search warrant, but the Magistrate issued a warrant under Section 96 of the Criminal Procedure Code under which the police supposed themselves to be acting: held that the issue of the warrant under Section 96 was illegal and the order was a nullity. Heading this finding and the judgment in the case, it is clear that the error in that case was an error in substance and not in form. The Magistrate himself with his eyes open issued the warrant under Section 96. The warrant purported to be for the purpose of Section 96, and the police who executed it supposed that they were acting under Section 96. The case, therefore, is clearly distinguishable from the present case where the error, if there is any, as to which we know nothing, could have been one merely of form. But having regard to what the learned Judge has said with respect; to these cases in the last passage in his judgment, we think that the accused have been too harshly dealt with. The learned Judge says: 'This is one of those cases, of not infrequent occurrence, which show how keenly Mahomedans resent the issue of any process against a woman who may be an accused or a witness in a 498 Indian Penal Code case, or analogous case; and it is doubtless because of such cases that the Government of this Province has recently issued an order that such complaints should in the first instance be referred to a local Mahomedan Marriage Registrar or other gentleman of position for enquiry and report. Probably if this had been done in the present instance, the present case would not have arisen.'
4. We think that there is a great deal to be said from this point of view, and while we agree with the learned Judge that the police, when they get a warrant from the Magistrate, are bound to execute it and must be fully protected in the execution thereof, we are willing to take a more lenient view of the conduct of the accused in the present case than the lower Courts have found it necessary to do.
5. We, therefore, in discharging the Rule, direct that the sentence on the petitioners be reduced to one of three months' rigorous imprisonment, and that the fine of 30 rupees each passed upon them do stand with the alternative sentence of imprisonment. The accused will, therefore, surrender to their bail, and serve out the rest of their modified sentence.