Decided on September 19,1963


Cited Judgements :-



- (1.)The petitioner was tried before the Sub Magistrate of Cannanore on a complaint preferred by P. W. 1, a process server of the Munsiff court of Tellichery for offences punishable under S.225B and 353 IPC. The learned Magistrate acquitted the accused of the offence under S.353, but convicted him under S.225B and sentenced him to pay a fine of Rs. 100/-.
(2.)The facts that led up to the case are as follows:-- The father of P. W. 4 obtained a decree against the petitioner in O. S. 531/50 on the file of the munsiff's court of Tellichery. By assignment P. W. 4 got the right of the decree holder and as the petitioner did not pay the decree amount he filed an execution application for the arrest and detention of the petitioner in the Civil Jail. The District Munsiff ordered notice and arrest warrant to be issued simultaneously. The warrant was signed by the Head Cleric under an authorisation by the District Munsiff. The warrant was then sent to P. W. 3, the Central Nazir, who deputed P. W. 1 for service of notice and to arrest the judgment debtor. On 2-8-60-P. W. 1 the process server accompanied by P. W. 4 set out in search of the petitioner. They met him in his house and P. W. 1 served the notice Ext. P6 and after obtaining his acknowledgment showed the warrant Ext. P1 to the petitioner. The petitioner signed the warrant and received the subsistence allowance. P. W. 1 then asked the petitioner either to pay the decree amount or to accompany him to court. The petitioner abuse P. W. 1 and attempted to leave the place. P. W. 1 then caught hold of him. The petitioner pushed him aside and escaped from his custody. The same day P. W. 1 made a report to the court and that report was forwarded with a covering letter to the Circle Inspector of Police, Cannanore. The Sub Inspector of Police, Edakkad registered a case but after investigation the case was referred. Thereupon a private complaint was filed by P. W. 1 and on a consideration of the evidence adduced before him the learned Sub Magistrate found the accused guilty and convicted him. The matter was taken up in appeal before the District Magistrate of Tellichery, who on a reappraisal of the evidence found that the petitioner had in fact been arrested and that he had escaped from lawful custody and confirmed the conviction and the sentence. Aggrieved with the order this revision petition has been filed.
(3.)That the petitioner had been arrested and he escaped from custody is amply proved by the evidence adduced by the prosecution and has been concurrently found by the courts below. Learned counsel for the petitioner, therefore, rightly did not challenge this finding. His main argument was that the apprehension of the accused is not lawful because the warrant on which the arrest was made was not lawfully issued and as there is no legal arrest, escape from custody would not amount to an offence. It is contended that the order of arrest is illegal; firstly because there has not been a compliance with S.51 of the Civil Procedure Code; and secondly the notice to show cause against the execution as required under O.21, R.22 has not been given to the petitioner. Learned counsel for the complainant and the public prosecutor would contend that the order that has been passed is one of arrest and as such S.51 of the Code is inapplicable. According to them the relevant provisions are R.37 and 40 of O.21. It is stated that S.51 comes into play only when am order of detention is to be passed.

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