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Abdul Gafur and ors. Vs. Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal896
AppellantAbdul Gafur and ors.
RespondentQueen-empress
Excerpt:
warrant of arrest - criminal procedure code (x of 1882), sections 7 and 80--signature of magistrate--initials--notification of substance of warrant--penal code (xlv of 1860), section 186--discharge of public functions. - .....district magistrate to show cause why the conviction and sentence under section 186 of the indian penal code should not he set aside and a retrial ordered.2. the facts of the case are shortly these : the petitioners before us were convicted by the sub-deputy magistrate of an offence under section 353 of the indian penal code for assaulting a constable in the execution of his duty, and sentenced to rigorous imprisonment for three months. on appeal the learned district magistrate altered the conviction into one under section 186 of the indian penal code, and reduced the sentence to one of fifteen days' rigorous imprisonment in the case of each of the petitioners. against this conviction and sentence the petitioners moved this court, asking us to interfere, under section 439 of the code of.....
Judgment:

O'Kinealy and Banerjee, JJ.

1. This is a rule calling upon the District Magistrate to show cause why the conviction and sentence under Section 186 of the Indian Penal Code should not he set aside and a retrial ordered.

2. The facts of the case are shortly these : The petitioners before us were convicted by the Sub-Deputy Magistrate of an offence under Section 353 of the Indian Penal Code for assaulting a constable in the execution of his duty, and sentenced to rigorous imprisonment for three months. On appeal the learned District Magistrate altered the conviction into one under Section 186 of the Indian Penal Code, and reduced the sentence to one of fifteen days' rigorous imprisonment in the case of each of the petitioners. Against this conviction and sentence the petitioners moved this Court, asking us to interfere, under Section 439 of the Code of Criminal Procedure, on the ground that as the warrant of arrest, in the execution of which the constable is said to have been obstructed, was not signed by the Magistrate, as required by Section 75 of the Code of Criminal Procedure, but only bore his initials, and as its substance was not notified as required by Section 80 of the Code of Criminal Procedure, the accused ought not to have been convicted of any offence under Section 186 of the Indian Penal Code.

3. As the judgment of the learned District Magistrate does not clearly show what the nature of the obstruction to the constable was, we thought it fit to grant a rule in the terms stated above. On now reading the Magistrate's explanation with his judgment, we find that the warrant of arrest, in execution of which the constable is found to have been obstructed, is not signed as required by law. We also observe that the learned Magistrate does not find that the substance of the warrant was notified at the time the constable proceeded to make the arrest. That being so, the conviction under Section 186 cannot, in our opinion, stand. To sustain a conviction under that section, it must be shown that the accused voluntarily obstructed the constable in the discharge of his public functions. There cannot be any voluntary obstruction of a public servant in the discharge of his public functions, unless it is shown that the public servant was acting in the discharge of his public functions in the manner authorized by law. Of course if the constable was actually, assaulted, the accused would be guilty of an offence under Section 352 of the Indian Penal Code. But whether the action of the accused amounted to an assault under the last mentioned section or not, the District Magistrate has not found in his judgment; nor are any facts found by him sufficient to show whether petitioners have or have not committed an offence under that section. The case must therefore go back to the District Magistrate in order that he may re-hear the appeal.


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