9911796707
TMI Blog1943 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... run concurrently. The prosecution case has been very well summarised by the lower appellate Court and is a follows: 2. A dacoity had been committed within the jurisdiction of Bakhtiarpur Thana, which lies within the jurisdiction of the Sub-Divisional Officer of Barh. Some of the suspects had made confessional statements in which they implicated several persons, including Dukhi Mahto of village Kistipur, police station Chandi, within the Bihar sub-division. As several of the persons named in the confessional statements were not forthcoming, the police officer submitted a report to the Sub-Divisional Officer of Barh on 13th January 1942, praying for the issue of warrants of arrest and processes under Sections 87 and 88, Criminal P.C., against them, including people residing within the jurisdiction of Chandi police station. On 24th January 1942, the learned Sub-Divisional Officer of Barh passed an order directing the issue of warrants of arrests and processes under Sections 87 and 88, Criminal P.C., and fixed 7th February 1942, and 24th April 1942, as the returnable dates of the two processes, respectively. These processes were duly forwarded to the Sub-Divisional Officer of Bihar fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce at the police station. He came to the place with all available force and proceeded to village Gilanichak, a neighbouring village, the zamindar whereof had a gun who supplied him with some men to accompany him to Kistipore. When they reached Kistipur they found the village deserted. They rescued the Sub-Inspector from the house of Dukhi Mahto, and next day police reinforcements arrived. Charges were framed against the petitioners on these facts under the Sections under which they have been convicted, and also under Section 379, Penal Code, which, however, failed in the trial Court. 6. The petitioners pleaded not guilty to the charges against them. They alleged that the warrant of arrest and the processes of proclamation and attachment were illegal and could not be executed, that there were two Dukhi Mahtons in the village, one being the son of Prem Narain Mahton and the other being the son of Chhotu Mahton, that in the absence of the parentage of Dukhi Mahton in the warrant of arrest and in the other processes the police officer was not justified in executing those invalid processes, that Dukhi Mahton, as a matter of fact, was pre-sent in the village and had come up when the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the non-production of the proclamation which was made in Court. So far as the charges under Sections 147 and 332/149, Penal Code, are concerned, the chief point that has to be considered is whether the common object mentioned in the charge has been made out. The charge framed under Section 147 runs as follows: That you on or about the 23rd day of February 1942 at village Kistipur, police station Chandi, were members of an unlawful assembly, and, in the prosecution of the common object of such assembly, viz., in deterring a public servant, Police Sub-Inspector, B. Boy, from discharging his duties as such public servant and in order to rescue property attached under Section 87, Criminal P.C., committed the offence of rioting and thereby committed an offence punishable under Section 147, Penal Code, and within my cognizance. 9. The charge under Sections 332/149, Penal Code, runs as follows: That you on or about the 23rd day of February 1942 at village Kistipur, police station Chandi, were members of an unlawful assembly, and, in prosecution of the common object of the assembly, viz., in deterring a public servant Sub-Inspector, B.P. Roy, from discharging his duties as such publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged. It was not for the accused to show that he was not the person against whom the warrant was issued. The onus lay on the prosecution to prove the affirmative, not on the accused to prove the negative. 11. But on the finding arrived at by the lower appellate Court, these decisions do not seem to help the petitioners in this case. Another line of argument advanced by the learned advocate for the petitioners is that in view of the common object set out in the charge if the Sub-Inspector was trying to seize properties, lie had to justify the seizure. In order to understand the full bearing of this line of argument, we have to go back to the report that was submitted by the Sub-Inspector on 15th January 1942 (Ex. 11). It appears that there was a dacoity within the jurisdiction of the Bakhtiarpur police station. Some time before Ex. 11 was submitted, the police submitted a final report, but later on, as the result of confessional statements of several persons, the case was re-opened, and the prayer was made in the following terms: I beg to report that the following persons are wanted in the marginally noted cases for the T.I. (which evidently means test identification) as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrant under Section 88 contains the expression, and thereupon a proclamation has been or is being duly issued and published requiring the said to appear and give evidence at the time and place mentioned therein. 15. It appears from this that it is not necessary that processes under Section 88 should be delayed till the time fixed in the process under Section 87 has elapsed. But the fact remains that processes under Sections 87 and 88 cannot be issued unless it is established that a warrant had already been issued against the person wanted and that person was absconding. In the present case it appears from the report Ex. 11 and the materials on the record that there was no such warrant issued before the prayer was made under Sections 87 and 88. In this view of the matter the processes that were issued in this case were without jurisdiction. Reference has been made to various cases on this subject, e.g., Queen-Empress v. Tulsiram 13 Bom. 168, Emperor v. Kadarbhai Usufalli A.I.R. 1927 Bom. 483, Jairam Sahu v. Emperor A.I.R. 1923 Pat. 338, Moinuddin v. Emperor A.I.R. 1921 Pat. 415, Pasuvathia Pillai v. Emperor A.I.R. 1928 Mad. 624 and Jograj Mahto v. Emperor . 16. As against these, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under specific charges. Sukhdeo Mahto and Rajendra Upadhya have been convicted under Section 342, Penal Code. These are the search witnesses. Their presence at the place originally was for a legitimate purpose, and it ought to have been shown that they were heard to say or seen to do something which showed that they identified themselves with or assisted the men who actually shut the Sub-Inspector up in the room. The Sub-Inspector did not, however, say any% thing like this. All that he said was that these two men were still there when he recovered after the assault and before he was shut in the room. That was not inconsistent with their being involuntary spectators of the occurrence. One of them at least had no apparent motive for taking part in it. Both men are, in my opinion, entitled to the benefit of the doubt. With regard to the convictions of Baldeo Singh, Harihar Mahto and Harekishun Mahto under Section 342, those must be maintained, as also the sentences passed on them under that section. 20. Dumar Mahto and Kishun Mahto have been convicted under Section 332. But as I have held that the processes were ultra vires, their convictions will be altered into one under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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