1. In this case, it appears that there was a certain judgment-debtor and the decree-holder was minded to have execution against his person in enforcement of her decree. The decree-holder applied to the Munsif by a petition which was of a thoroughly muddled character. What she really wanted was that the Munsif should make an order under Sub-rule (2), Rule 22, Order 21, Civil P.C., to the effect that a warrant for the arrest of the judgment-debtor should issue at once notwithstanding that more than a year had elapsed since the date of the decree; and, if the procedure of the Munsif had not been in accordance with this muddle-headed petition, the form of the order which he would have made would have been to record his reasons under Sub-rule (2), Rule 22 and direct that a warrant of arrest do issue under Rule 37. In effect what he did was this : He directed simultaneous issue of three things : (1) a notice under Rule 22, (2) a notice to show cause why the judgment-debtor should not be arrested and (3) a warrant for the arrest of the judgment-debtor. He issued all these' abreast and the Court peon proceeded to carry out these processes. The peon got to a place in a certain road where he saw the judgment-debtor whose name is Rajani Kanta Saha. The judgment-debtor was identified by some one on behalf of the decree-holder. The peon read over the notices and the warrant of arrest to Rajani, demanded the decretal amount and on his refusal to pay, arrested him. Thereupon Rajani shouted for help and he and his co-accused between them forcibly effected Rajani's rescue from the hands of the peon. It does not appear that very much violence was used on the peon certainly nothing that exceeded simple hurt. In these circumstances the accused have been found guilty.
2. I omit the question of conviction of theft under Section 379 I.P.C. The contention on behalf of the petitioner is that the warrant of arrest was entirely illegal, that they were entitled to resist its execution, that in executing it the peon was not discharging a legal duty but was really committing trespass and that consequently no charge under Section 225-B or Section 353 will lie. Of course it is admitted that if an assault had been made upon the peon which could not be justified by he principle of private defence, then no doubt a case would lie under Section 353 , but no such case as that is made against these people.
3. There can be no doubt that this warrant for the arrest of Rajani must be either good or bad in the sense that it either authorizes the peon to effect the arrest in which case he is entitled to the protection given by Sections 225-B and 353, I.P.C. or it is a document notwithstanding which the peon himself was merely committing trespass when he proceeded to execute the warrant. That matter is put clearly in the judgment of the Full Bench in the case of Assam v. Sahebdulla : AIR1924Cal1 where reference is made to what was said in an English case by Abbot, C.J.;
It is obvious that if the act of the Justice issuing a warrant be invalid on the ground of such an objection as the present the warrant will who act without any authority a constable who arrests, and a goaler who receives a felon will each be a trespasser; resistance to them will be lawful; everything done by either of them will be unlawful and a constable, or persons aiding him may, in possible instance , become amenable even to a charge of murder for acting under an authority which they reasonably considered Themselves bound to obey, and of the invalidity whereof they are wholly ignorant.
4. If the warrant is a legal warrant there must be the consequences. On the other hand, if the warrant is a legal warrant within the jurisdiction of the Munsif to make, then it is clear enough that the civil Court peon must be entitled to the special protection given by Section 225-B and Section 353, I. P.C.
5. Now, prima facie, it will be observed that there was no obstruction to the peon doing anything except arresting Rajani So the matter which we have to consider is the validity of the warrant of arrest. It can not be disputed that in this case the Munsif had jurisdiction, notwithstanding that the case came under Rule 22, Order 21, Civil P.C., to issue a warrant for Rajani's arrest forthwith and it appears to me to be settled law now by the case) to what I have already referred that the mere fact that the Munsif is directed to record his reasons cannot make his act entirely invalid solely because of his omission so to record. In the present case, as a matter of fact, there was what the Munsif in his order calls a 'special petition' giving special grounds for holding that the processes would be useless if the judgment-debtor got any notice of the intention to arrest him before the actual arrest took place; and, if the substance of the matter alone is looked at, it would certainly seem clear enough that the Munsif was acting on the reasons given in the petition. However, if the question be whether the mere absence to record reasons makes the war-rant bad, speaking for myself, I should answer that question confidently in the negative, and I think the Full Bench case to which I have referred is an authority in support of that view. However, the application made by the accused before us is not grounded upon that circumstance. What Mr. Taluqdar contends is that, if the power given in Sub-rule (2), Rule 22, Civil P.C., was meant to be acted on at all, then no notice under Rule 22' would have issued to the judgment-debtor. In the same way he says that, if you issue a notice to show cause why the judgment-debtor should not be arrested, you cannot in the same breath issue a warrant of arrest and that the issuing of the notice to show cause makes bad* the issue of the warrant. In my judgment, neither of these contentions, although they are deserving of careful consideration, is correct. I think it quite obvious that the Munsif here did intend to exercise his powers under Sub-rule (2), Rule 22. He might have a muddled idea that, while he could arrest this man without giving him notice under Rule 22, he might not be minded to take any further steps in execution without giving him such a formal notice. Again, he might have thought that, when the man came before him, a notice to show cause why he should not be arrested would be in effect a notice to show cause why he should not be further detained. I think on the facts the probability is that the Munsif simply accepted the muddled suggestion of the decree-holder's pleader in the petition that it would do no harm to issue all the three processes straight way, but one thing is reasonably clear to me : viz., that it was drawn to his attention, that he had the right to issue the warrant at once, a right which was to his knowledge based upon his power to dispense for the time being, at all events with the ordinary provisions of Order 21, Rule 22. In these circumstances, I am not prepared to hold that this warrant was an illegal warrant; and, that being so, I am of opinion that it cannot be maintained that the peon in executing it was committing trespass or that he was disentitled to rely upon the sections under which these petitioners have been convicted.
6. For these reasons I think this Rule should be discharged.
7. The petitioners must now surrender to their bail and serve out the remainder of the sentence imposed upon them.
8. I agree.