1. The petitioners Nos. 1. 2 and 3 have been convicted under Section 225, I.P.C., and the petitioner No. 4 has been convicted under Section 224 of the Code, and sentenced to terms of imprisonment, and the point for determination in this rule is whether the warrant, in virtue of which the petitioner No. 4, Posan Singh, was arrested by the Police, was a lapsed warrant at the time of the arrest, that is, on the 29th October 1908.
2. The rule was issued on the ground that the warrant was not one falling under Section 75(2), Criminal Procedure Code, but under Section 76, and that as the conditions in the endorsement had become impossible of fulfillment, the warrant could not be executed after the 26th October 1908.
3. The facts are these: Posan Singh was accused of an offence under Section 147, I.P.C. The Magistrate issued the warrant in question with a provision endorsed for bail to be taken for the appearance of the accused on the 26th October. Posan Singh did not appear on that date. He was arrested on the same warrant, on the 29th idem, but he was rescued and escaped from Police custody. Hence the conviction of the petitioners for the offences we have specified.
4. We have heard the learned Vakil in support of the rule and considered the explanations submitted by the Magistrate.
5. The warrant was never cancelled nor was it withdrawn. Consequently it remained in force until it was executed, as provided by Section 75(2), Cr. P C. The direction to take bail, endorsed on the warrant, duly fixed a time (the 26th October) at which the accused was to attend before the Court. See Section 76(2), (c) of the Code. The date fixed having past, the direction to take bail lapsed, but the warrant itself did not lapse. Therefore, the arrest was legally made on the 29th October, and the rescue and escape from custody became punishable.
6. Sections 75 and 76 of the Code must be read together in the manner we have explained. The construction contended for by the petitioners, would have the effect of making Section 75(2) a dead letter, and would necessitate the issue of successive warrants each fixing a fresh date for appearance of the accused before the Court. This cannot have been the intention of the Legislature. Section 76(1) is permissive.
7. The rule is discharged.
8. The petitioners must now surrender and serve out their punishment.