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Superintendent and Remembrancer of Legal Affairs Vs. Darbesh Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal174
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentDarbesh Ali and ors.
Cases ReferredSatish Chandra Rai v. Jadu Nandan Singh
Excerpt:
- .....the facts of the case, which i take from the judgment of the sub-divisional officer, were that a police officer hid been entrusted with a warrant for the arrest of a witness. he found her in the house of a man named yusab and he stated the object for which he had come. yusab asked him to wait and after going away returned with the other accused persons and endeavoured to remove the witness. then as she was being removed the police officer seized her. the accused persons thereupon assaulted him and rescued the person who was required as a witness from the custody of the police officer. the accused persons were put on their trial before the sub-divisional magistrate at feni with the result which i have stated. on appeal before the additional sessions judge at noakhali they have been.....
Judgment:

Buckland, J.

1. These are two appeals preferred by the Local Government against the acquittal on appeal of seven persons who had been convicted by the Sub-Divisional Officer at Feni of offences under Sections 147 and 225(B), I.P.C. and sentenced each to six months rigorous imprisonment three months under each section. The facts of the case, which I take from the judgment of the Sub-Divisional Officer, were that a police officer hid been entrusted with a warrant for the arrest of a witness. He found her in the house of a man named Yusab and he stated the object for which he had come. Yusab asked him to wait and after going away returned with the other accused persons and endeavoured to remove the witness. Then as she was being removed the police officer seized her. The accused persons thereupon assaulted him and rescued the person who was required as a witness from the custody of the police officer. The accused persons were put on their trial before the Sub-Divisional Magistrate at Feni with the result which I have stated. On appeal before the Additional Sessions Judge at Noakhali they have been acquitted, the ground being that the provisions of Section 80, Criminal P.C., had not been complied with. The learned Judge observes:

There is absolutely no evidence to show that the substance of the warrant of arrest was notified to Nasibonnessa or that the warrant was shown to her.

2. Consequently he held that the arrest was illegal and that she was not in the legal custody of the police officer and, therefore, there could not be and, in fact, there was not any offence under Section 225(B), I.P.C. The common object under Section 147, I.P.C. being to commit an offence under Section 225(B), as, according to the learned Judge, there was no offence committed under that section and their object was not to commit any-such offence, he acquitted the accused of any offence under Section 147. In support of the view he has taken of Section 80, Criminal P.C., he has relied on the judgment of this Court in Abdul Gafur v. Queen-Empress [1896] 23 Cal. 896. Our attention has also been drawn on behalf of the respondents to another decision of this Court, Satish Chandra Rai v. Jadu Nandan Singh [1899] 26 Cal. 748. These oases are clearly distinguishable upon the facts. For the determination of this appeal reference must be made to Section 46, Criminal P.C. That is to be found in Ch. 5 of the Code, in the part which deals with arrest generally, and. says:

If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

3. Now, it is obvious and indeed only common sense that to an occasion within that section, Section 225(B), I.P.C. also applies. Omitting so much as is unnecessary for the present purpose,

whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or rescues or attempts to rescue any other person from any custody in which that parson is lawfully detained, shall be punished etc.

4. To say that the apprehension or custody is unlawful in a case where efforts have been made to evade or prevent the arrest and rescue the prisoners because of the provisions of Section 80, Criminal P.C., would bring the law into ridicule. So to insist would merely give more time and opportunity to the obstructionists to effect their purpose. A police officer who has made an arrest without having observed the provisions of Section 80, Criminal P.C., may be able to justify his action under the provisions of Section 46(2), Criminal P.C.I. must not be taken as expressing any opinion on the facts of these cases. The learned Additional Sessions Judge, overlooking Section 46, appears to have thought that no arrest can be lawfully made without compliance with the provisions of Section 80. In my judgment the Additional Sessions Judge was wrong in the view he took of the law and 1 would set aside his judgment and direct that the cases be remitted to the Sessions Judge to rehear the appeals himself on the merits.

Rankin, C.J.

5. I agree.


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