Skip to content


Shyama Charan Majumdar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.1006
AppellantShyama Charan Majumdar and ors.
RespondentEmperor
Excerpt:
penal code (act xlv of 1860), sections 147, 225, 353 - rescue from lawful custody--arrest on warrant with bail--no intimation that hail was allowed--arrest, whether legal. - .....the constable's bounden duty under the law to at once state that bail would be taken. before actually making the arrest he should certainly have said, 'can you give the required bail?' we, are of opinion that the arrest was illegal.2. now comes the question whether the accused persons were justified by the law of private defence in committing a common assault upon the constable. the medical evidence clearly shows that nothing but simple hurt was caused. the conviction under section 147 must clearly go, inasmuch as the accused was not in lawful custody. for the same reason, the conditions under sections 225 and 353 must go; and having regard to the medical evidence we cannot find that there was any offence committed by exceeding the right of private defence.3. the rule, therefore, must be.....
Judgment:

1. We are of opinion that this Rule must be made absolute on the first three grounds taken together which practically amount to this, that a small bail was entered upon the warrant and that the constable did not give the slightest intimation to the arrested person of the fact that bail had bean allowed. On the contrary, he appears to have said that it was no use rescuing the prisoner because the daroga was, coming presently. The warrant had been made over by the daroga for execution and it was the constable's bounden duty under the law to at once state that bail would be taken. Before actually making the arrest he should certainly have said, 'Can you give the required bail?' We, are of opinion that the arrest was illegal.

2. Now comes the question whether the accused persons were justified by the law of private defence in committing a common assault upon the constable. The medical evidence clearly shows that nothing but simple hurt was caused. The conviction under Section 147 must clearly go, inasmuch as the accused was not in lawful custody. For the same reason, the conditions under Sections 225 and 353 must go; and having regard to the medical evidence we cannot find that there was any offence committed by exceeding the right of private defence.

3. The Rule, therefore, must be made absolute and the petitioners discharged from their bail.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //