QUEEN-EMPRESS Vs. BASANT LALL

JUDGEMENT

(1.) Several persons were tried together by the Magistrate of Shahabad for various offences connected with Section 224 of the Indian Penal Code. The sentences passed on these persons were not appealable with the exception of the sentence passed on Basant Lall. On his appeal the Sessions Judge has acquitted him, setting aside the conviction and sentence, and he has referred the convictions and sentences of the others to this Court with a recommendation that they also be set aside on the same ground as that upon which be acquitted Basant Lall on his appeal. On consideration of this reference, it appeared to the Judges of the Criminal Bench, of which I was one, that prima facie the law laid down by the Sessions Judge on which he set aside the conviction and sentence on Basant Lall was erroneous. We, therefore, deferred passing any orders with reference to the others directing that a rule should issue on Basant Lall to show cause why the order of acquittal passed on his appeal by the Sessions Judge should not be set aside, having previously recited the reason for so doing. The last portion of the rule was not accurately expressed, for it proceeded to state "and why the conviction and sentence passed by the Magistrate should not be restored." The reason for this order, I may say, was that we contemplated at that time that we should deal with the whole case, bringing up the appeal of Basant Lall for hearing from the Court of the Sessions Judge.

(2.) However, now that this matter is before us, we think, it right to consider the case from another point of view, and that is that if we hold that the Sessions Judge has acquitted Basant Lall on a misapprehension of the law relating to this matter, we should more properly direct him to hear the appeal on the merits having set aside his order acquitting the appellant. The Sessions Judge has acquitted Basant Lall on the ground that Basant Lall was not lawfully arrested, and he has come to this conclusion, because he considers that the procedure laid down in Section 80 of the Criminal P. C. should have been followed, that is to say, that on his arrest Basant Lall should have had notified to him the authority for and the cause of his arrest. Section 80, however, applies only to the execution of a warrant of arrest. The arrest in this case was made by an order in writing under Section 56 in regard to an arrest which certain Police officers can make without a warrant. The two sections relate to matters entirely different and appear in different chapters of the Code, and there is nothing extending Section 80 to an arrest made by the police on an order in writing, so as to require that any information must be given to the person arrested in order to make it an arrest warranted by law. The order in writing is an authority to a subordinate Police officer to make an arrest which the superior Police officer, if present, could himself make on his own responsibility. It may be desirable or even obligatory that if called upon the Police officer making such an arrest should show the person arrested the authority under which he is acting, but to hold that he is bound to do so before he can properly arrest and detain in custody such a person, so as to make the arrest and the detention lawful would be to extend the law beyond what the Legislature has thought proper to declare it. This would be to exceed our jurisdiction which is to declare what the law is and not to make the law.

(3.) This, as we understand his reference to us in revision and his judgment on the appeal on which the Sessions Judge relies in making the reference, is the ground upon which he has acquitted Basant Lall. We think it unnecessary in this case to enter into any consideration of the merits of that appeal. Those are matters which should be left to the Sessions Judge to be dealt with in due course on the hearing of the appeal. He has not dealt with the merits. He has acquitted the accused Basant Lall simply on an erroneous view of the law. The proper order, therefore, to pass in this matter is to set aside the order acquitting Basant Lall because it proceeds on an erroneous view of the law and to direct a rehearing of the appeal, and we think this is the only order which we can properly pass on a rule issued to consider and deal with this matter. We are also of opinion that it is unnecessary, as the case is now before us, to consider further in revision the conviction and sentences passed on the other accused.