Decided on March 04,1972

STATE Respondents


- (1.) THE judgment of the. Additional Sessions Court Guntur dated 22. 2. 1971 in Criminal Appeals Nos. 87 and 92 of 1970 is being assailed in this revision by A-1 and A-2. A private complaint was filed under Sections 224, 225 and 353. I. P. C. against A-1 to A-5 on the ground that on 26. 2. 1970 when the Amin of the Sub Court, Ongole went to the house of A-1 to arrest him on orders passed in E. P. 194/1969, A-1 expressed his inability to pay the demand of the warrant whereupon it is alleged that the Amin arrested A-1. A-1 was brought to the bus stand where he tried to escape from his custody. When the Amin, was boarding the bus towards Ongole with A-1. A-2 to A-5 rushed there and attacked the Amin to facilitate the escape of A-1. A-2 beat the Amin on the right hand and got released A-1. A-1 pushed the Amin and began running. The Amin was prevented from catching A-1 when A-3 to A-5 caught both the hands of the Amin. Consequently A-1 escaped in a bus bound for Chilakaluri. pet. The complainant examined in all six witnesses. Out of these witnesses, witnesses 4 and 6 have turned hostile P. W-1 is the Sheristadar of the Sub. Court. Ongole. P. W-2 is the Deputy Nazir and P. W-3 is the Amin of the Sub. Court. P. W-5 is the decree, holder. The trial court after consideration of the evidence convicted A-1 under Section 224 and sentenced him to rigorous imprisonment for six months. The trial Court also convicted and sentenced A-2 for the same offence and for the same period. However, the trial Court convicted and sentenced A-3 to A-5 under Section 225. I. P. C and sentenced them to suffer rigorous imprisonment for six months. The trial court also convicted and sentenced A-1 to suffer rigorous imprisonment for six months under Section 353, I. P. C. Those sentences of A-1 were to run concurrently.
(2.) AGGRIEVED by the conviction and sentences passed against them the accused preferred an appeal. The Appellate Court acquitted A-3 to A-5 on the ground that the prosecution has not proved its case against A-3 to A-5. The appellate Court further held that A-1 was guilty of the offence under Section 225-B. I. P. C. and Section 353, I. P. C. and convicted A-l thereunder for three months on each count. The sentences were to run concurrently. The conviction and sentence of A-2 also was altered to one under Section 225-B. Aggrieved by the judgment of the appellate Court A-1 and A-2 have preferred this revision.
(3.) MRS. Chamanthi, the learned Counsel for the petitioners contends that in order that the conviction under Section 225 could be sustained it is necessary that the warrant should be a legal warrant and it should be duly signed. If the warrant is not signed by the officer authorized to do so then Section 225-B, I. P. C. has no application. In support of her contention the learned advocate has cited a ruling of the Madras High Court reported in Sub. baramiah v. Emperor AIR 1934 Mad 206. Section 225-B, I. P. C. provides, "whoever, in any case not provided for in Section 224 or Section 225 or in any, cither law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehend some of himself or of any other person or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with Imprisonment of either description for a term which may extend to six months, or with fine, or with both. " It is manifest therefrom that in order that Section 225-B should apply it is necessary that there should be a lawful apprehension. If the apprehension is not lawful then Section 225-B has no application at all. It is brought to my notice that the warrant of arrest was signed by the Sheristadar. No order of authority was filed to show that the Sheristadar was the person authorized to sign a warrant. In the ruling cited by the learned advocate referred to above it was held "the Warrant of arrest the execution of which was resisted by the petitioner is clearly an illegal one. The warrant of arrest was signed by the Deputy Nazir and officer who had not been empowered legally or Riven any lawful authority to sign warrants, and the fact that it has been the practice for a considerable time for such warrants to be signed by the Deputy Nazir cannot make the signing of them by that officer legal, in the absence of due authorization. " Hence since no authorization has been filed by P. W-1 to show that he was authorized to sign this warrant I am constrained to hold that the warrant of arrest was clearly illegal and any resistance offered against such unlawful apprehension cannot come Within the ambit of Section 225-B. Even otherwise, the next contention of the learned advocate for the petitioner is that except for a bald statement of P. W-3 there is no other evidence to show that A-1 was actually arrested. The learned advocate contends that if in fact A-1 was arrested there was no necessity, of P W-1 to have followed A-1 to the house of the lawyer. On the contrary, It should have been A-1 who should have been following P. W-3, There is some force in this contention and I find that there is no evidence to show that fact. A-1 was arrested. In such circumstances I hold that A-1 and A-2 are not guilty of the offence under Section 225-B of which they were convicted by the appellate Court. Hence the revision is allowed. They will be set at liberty forthwith. The bail, bonds will be cancelled.;

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