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Khuda Bux And Others Appets. v. State

Allahabad High Court

Mar 14, 1951

Judgment

Subsequent
References

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Structured Summary of the Opinion

Factual and Procedural Background

This opinion arises from an application in revision against convictions of several accused persons by the Additional Sessions Judge, Bareilly. The trial court had committed 28 men for trial; of these the Sessions Judge acquitted 12 and maintained the convictions and sentences of the remaining 16, all of whom filed the present revision application. The charges included sections 332, 147, 379 and 225-B of the Indian Penal Code (I.P.C.), with only Amir Bakhsh convicted under s. 379 and only Nanhey convicted under s. 342 (as recorded in the opinion).

The underlying facts as found by the courts below (and set out in the opinion) are: a warrant was issued for the arrest of a woman, Noor Jahan, by the Additional District Magistrate allegedly under Section 100 of the Code of Criminal Procedure. The complainant, Midhai, delivered the warrant to the Sub-Inspector (S.I.) Earn Singh. The S.I., accompanied by police and villagers, went to Dalel's house in village Harnampur and arrested Noor Jahan. The S.I. and his party were then attacked by a crowd of about 30–35 men; the S.I. was pulled from his horse, his revolver was snatched, Noor Jahan was rescued, and the S.I. was confined in the house of one of the accused. Police later recovered the revolver, re-arrested Noor Jahan and arrested the rioters; torn clothing of the S.I. was taken into possession. After investigation, 28 men were sent up for trial and convictions followed as noted above.

Legal Issues Presented

Whether the warrant for Noor Jahan's arrest was legally issued and, specifically, whether it was issued under Section 100 of the Criminal Procedure Code or under Section 552 (a restoration order), and what legal consequences flow from that determination.
If the warrant was defective or issued under the wrong provision, whether the Sub-Inspector's act of arresting Noor Jahan amounted to action taken "absolutely without jurisdiction" (thus attracting different criminal consequences) or whether it was an act done in excess of jurisdiction but still entitled to the protection normally accorded to officers executing warrants.
Whether the rioters who attacked the police party could validly rely on the right of private defence (S. 99 I.P.C.) if the arrest was unlawful, and which offences (e.g., Ss. 332, 225-B, 323, 147, 379, 342 I.P.C.) could or could not be said to have been committed in those circumstances.
Whether identification evidence produced at the trial was sufficient against the accused (including the special scrutiny of the identification of Sulaiman) and whether there was specific evidence tying Nanhey to the wrongful confinement of the S.I.
Whether the sentences imposed by the magistrate were appropriate in severity and whether the practice of directing sentences to run concurrently without reason was proper, including whether such concurrent ordering could be altered on revision (possible enhancement concerns).

Arguments of the Parties

Appellants' (Defence) Arguments

The defence denied the prosecution narrative and contended that, although some event occurred, it did not happen as deposed by the prosecution witnesses.
The defence asserted that the S.I. and his party raided Dalel's house at midnight, Dalel cried for help alleging a dacoity, and neighbours gathered believing a dacoity was in progress; in short, the crowd legitimately confronted what they believed to be dacoits rather than a lawful police arrest.
The defence denied that the S.I.'s revolver had been snatched or that Noor Jahan had been arrested and then rescued in the manner described by prosecution witnesses.
Counsel Mr. B.C. Saxena challenged the propriety of the convictions principally on legal grounds: (a) the warrant was illegal (it could not be produced and its true nature was uncertain), (b) the S.I. purportedly believed the warrant was under S. 552 rather than S. 100, and (c) identification by prosecution witnesses was insufficient or improperly tested in certain instances (notably as to Sulaiman), and Nanhey was improperly held responsible for confinement solely because he owned the house.

Prosecution / Respondent Position (as reflected in the opinion)

The prosecution case, as accepted by the courts below and described in the opinion, was that the warrant had been lawfully issued (supported by the court clerk's evidence and an order showing issue under Section 100), that the S.I. executed the warrant and was then assaulted, that Noor Jahan was rescued from lawful custody, and that the rioters including the appellants were responsible for those criminal acts.
The prosecution relied upon a large number of witnesses and circumstances which the courts below accepted; it also relied on the documentary evidence and clerk's testimony to show the warrant was issued under Section 100 and thus lawful for arrest.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Badri Gope v. Emperor, 5 Pat. 216 (A.I.R. 1926 Pat. 237; 27 Cr. L.J. 418)	Distinction between acts done in excess of authority and acts done in total absence of authority; officers acting under apparent authority receive protection from assault.	Cited to support the proposition that mere excess of authority does not make an officer's act absolutely without jurisdiction and thus does not entitle attackers to rely on private defence; court applied it to hold rioters could be guilty if the S.I. acted in good faith under a warrant.
Supdt. and Legal Remembrancer of Legal Affairs, Bengal v. Sona Mia (A.I.R. 1948 Cal. 95; 48 Cr. L.J. 464)	Reinforces principles about protection of officers executing warrants and the distinction between excess and absence of authority.	Used along with other precedents to justify that the S.I. executing a warrant should not have his actions treated as absolutely without jurisdiction when the warrant was not shown to be a nullity.
Ahmad Subhan v. Emperor (A.I.R. 1949 Cal. 407; 48 Cr. L.J. 616)	Same strand of authority concerning an officer's protection when executing process and the legal effects of jurisdictional excess vis-à-vis absence.	Relied upon to support the court's conclusion that the rioters could not avoid liability by invoking private defence if the officer acted in good faith under a warrant.
Cook v. Leonard ((1827) 6 B. & C. 351)	Emphasises that where there is a total absence of authority the officer is not protected; partial excess does not remove protection.	Quoted to underline the legal distinction between total absence of authority and excess of authority; applied to find no total absence of authority in the present case.
Painter v. The Liverpool Oil Gas Light Co. Ltd. ((1836) 3 Ad. & El. 433)	Officers are not to canvass the legality of process; warrants protect officers executing them from having to scrutinise issuance.	Cited to support the idea that the S.I. need not question the legal regularity of the warrant and was entitled to execute it in good faith.
Corbett v. The King (47 C.L.R. 317)	Not every defect or irregularity in a warrant makes it a nullity; unless the warrant is a nullity it confers authority whose resistance constitutes an offence.	Used to hold that no on‑face nullity was shown in the present warrant, so the S.I. had authority that could make resistance criminal.
Moravia v. Slopper (1737) Willes 30; Andrews v. Marris ((1841) 1 Q.B. 3); Carratt v. Morley ((1841) 1 Q.B. 18); Mayor Etc. of London v. Cox ((1867) 2 H.L. 239); Ask v. Dawnay ((1852) 8 Ex. 237)	Examples where a warrant on its face was such as no law authorises (nullity) or where the officer acted in excess of the authority of the warrant and could not justify under it.	These authorities were cited in the court's exposition of the limits of warrant protection; the court found the present warrant was not shown to be such a nullity and therefore distinguished the present facts from those cases.
Jagannath v. Emperor (A.I.R. 1932 All. 227; 33 Cr. L.J. 887)	Referenced as precedent where warrants were held illegal and police officers were found to have acted with complete absence of jurisdiction (as relied on by defence counsel).	Cited by defence counsel; the court observed that the facts of Jagannath differ from the present case and therefore it did not control the outcome here.
Bisu Halder v. Emperor (6 Cr. L.J. 38; 6 C.L.J. 127)	Another cited instance where a warrant was held illegal and officers were treated as acting without jurisdiction.	Referenced by defence; the court found that facts in that case were different and thus it did not govern the present decision.
Queen-Empress v. Dalip (18 All. 246; 1896 A.W.N. 48)	Applied S. 99 I.P.C.; in that case accused were convicted under S. 323 and S. 147 but not under S. 332 and S. 225-B because the officers were held to have acted without jurisdiction.	Cited by defence; court noted Dalip's outcome but held that the present facts were distinguishable and that the warrant here was not shown to be invalid on its face.

Court's Reasoning and Analysis

The court proceeded through a sequence of factual findings and legal conclusions, closely following the evidence and established principles:

Findings of fact: The courts below had accepted the prosecution narrative as proved by many witnesses and supporting circumstances. The court noted that the clerk of the court that issued the warrant and a copy of the order indicated it was issued under Section 100 of the Cr. P.C.; the warrant itself had been snatched and torn by rioters and could not be produced intact.
On conflicting indications (S.I.'s impression that the warrant was under S. 552): The court observed the S.I. had no documentary endorsement to support his impression and he did not give evidence as to the contents of the warrant; therefore his statement that the warrant was under S. 552 was unreliable and could not displace the clerk's evidence and the documentary order showing issue under S. 100.
Legal effect of S. 552 v. S. 100: The court explained that s. 552 (distinguished from S. 100) permits a District Magistrate, on oath complaint of unlawful detention of a woman or a female child under 16, to order immediate restoration to liberty and may compel compliance using necessary force; s. 552 does not authorise arrest. Hence if the warrant had indeed been under S. 552 it could not lawfully have ordered arrest. The presence of a warrant of arrest, however, supported the conclusion that it was issued under S. 100.
Jurisdictional analysis: The court emphasised the legal distinction between an officer acting absolutely without jurisdiction and an officer exceeding jurisdiction in executing a process. Citing authorities, the court stated that where a warrant is not shown to be a nullity on its face, an officer executing it is entitled to protection; an excess of authority does not remove that protection. The officer is not required to canvass the legality of the process he executes.
Consequences for criminal liability and private defence: The court held that if the S.I. acted in good faith under a warrant (even if the warrant contained an error in section reference), those who attacked him could not rely on private defence by reason of his good faith execution of a warrant (S.99 I.P.C.); thus the rioters could be guilty of offences such as S. 323 (causing hurt), S. 147 (rioting), S. 379 (theft - relevant to Amir Bakhsh), and S. 342 (wrongful confinement - relevant to Nanhey), even if S. 332 or S. 225-B might not be made out where the arrest was unlawful in law. The court explained that illegality of a warrant might remove the element of an officer acting in the discharge of duty (thus affecting Ss. 332 and 225-B), but it would not prevent the commission of other offences by the attackers.
Application to identification evidence: The court noted that many witnesses explicitly stated that specific accused persons took part in the riot; where such identity evidence was not challenged by cross-examination (for example, by asking the witness to point out the accused), such statements were sufficient. The court found the identification evidence adequate for most accused.
Special scrutiny of Sulaiman and Nanhey: The court found the identification of Sulaiman doubtful because he was unknown to witnesses previously and identified only at a later identification parade by two witnesses who made many mistakes; this left reasonable doubt and entitled Sulaiman to acquittal. As to Nanhey, the court found only that the S.I. was confined in Nanhey's house and that Nanhey owned the house; there was no evidence that Nanhey took part in the confinement or abetted it, nor that confinement occurred in furtherance of the common object of the unlawful assembly; the court therefore acquitted Nanhey.
Sentencing analysis: The court criticised the magistrate's sentencing as inadequate given the seriousness of the offences: sentences under S. 147 were often limited to three months' rigorous imprisonment or a small fine; under S. 332 sentences were sometimes only six months and a small fine; under S. 225-B three months or a small fine. The court observed that the minimum sentence for offences under Ss. 147 and 332 should have been one year's imprisonment and that the magistrate unjustifiably made sentences run concurrently without stating reasons or applying judicial discretion. The appellate court expressed a desire to make sentences consecutive but refrained because it was not certain whether that would amount to an impermissible enhancement without notice to the appellants; the question of whether ordering concurrency to consecutivity constitutes enhancement was not argued and the court declined to alter the concurrent order.

Holding and Implications

Core Ruling: The Court upheld the convictions and sentences of all applicants except Sulaiman and Nanhey; the convictions and sentences of Sulaiman and Nanhey were set aside and they were acquitted.

Direct consequences ordered by the court (as recorded in the opinion):

The revision application was dismissed for all appellants except Sulaiman and Nanhey.
Sulaiman and Nanhey's convictions and sentences were quashed and they were acquitted; any fine realised from them was to be refunded; if on bail their bonds were discharged.
If any of the convicted appellants were on bail, they were ordered to surrender themselves to undergo sentence.

Implications noted by the court:

The court reinforced the principle that an officer executing a warrant which is not a nullity on its face is entitled to protection from attack and that those who attack the officer may be criminally liable, even if some defect existed in the issuance of the warrant (distinguishing between excess of authority and total absence of authority).
The court criticised the magistrate's sentencing practice (both as to the quantum being inadequate for the offences and the routine ordering of concurrency without reasons) and expressed concern about the lack of judicial exercise of discretion by magistrates in ordering sentences to run concurrently.
The court declined to alter concurrent sentences to consecutive sentences because it was not satisfied that doing so would not amount to impermissible enhancement without notice — a matter not argued before it — and therefore refrained from altering the magistrate's concurrent orders despite disapproving of them.

No new legal precedent was expressly laid down by the court; rather, the court applied established principles and existing authorities to the facts before it and corrected the convictions of two accused on evidentiary grounds while upholding others.

Order: Convictions and sentences maintained for all appellants except Sulaiman and Nanhey; Sulaiman and Nanhey acquitted. If fines were realised from them, refund to be made; bail bonds discharged where applicable. If convicted appellants are on bail, they must surrender to undergo sentence.

Show all summary ...

1. This is an appln. in revn. against the appcts.’ convictions under SS. 332, 147, 379 & 225B, I.P.C, by the Addl. Ses, J. of Bareilly. In all 28 men were convicted by the trial Ct. & the learned Addl. Ses. Judge acquitted 12 & maintained the convictions & sentences of the remaining 16 men, all of whom have filed this appln. Only Amir Bakhsh appct. has been convicted under s. 379, I.P.C & only Nanhey appct. has been convicted under 3. 342, I.P.C; the other offences have been found proved against all the appcts.

2. The facts against the appcts. are as follows: One Midhai is the father of Noor Jahan, married to Bashir appct. in village Harnampur. Dalel appct. is the father of Bashir. Midhai got a warrant issued by the Addl. Dist. Mag. for the arrest of Noor Jahan from the house of Dalel & Bashir where, presumably, she was alleged to have been wrongfully confined by them. A clerk of the Ct. of the Addl. Dist. Mag. deposed that the warrant was issued under Section 100 of the Cr PC. There is an order of the Addl. Dist. Mag. showing that the warrant was issued under s. 100. The warrant was handed over to Midhai for being delivered to the station officer. Midhai at once took it to S.I Earn Singh, station officer of P.S Bhamora, on 29-9-1946, at about 3 p.m The S.I accompanied by Midhai, two police constables Ahmed Nabi & Bishan Lal, & a number of villagers went to villagers went to village Harnampur to the house of Dalel. They arrived there at 5 or 6 p.m Midhai called out Noor Jahan & she came out with Dalel. The S.I showed the warrant to Dalel & arrested Noor Jahan & took her towards the chaupal of the mukhia which is about 40 paces from Dalel's house. There the S.I & men of his party were attacked by a crowd of 30-35 men with lathis. They pulled down the S.I from the horse & Amir Bakhsh snatched away his revolver. The S.I fired two shots from his revolver in the air. The rioters rescued Noor Jahan from the custody of the police. Then five of the appcts. carried away the S.I to the house of Nanhey appct. & locked him inside it. Eight men of the police party, including Midhai, were injured by the rioters. All the appcts. were among the rioters. Information of the occurrence reached the police station & a force of police went there at about 3 a.m & got the S.I released from confinement. His torn bushshirt was taken in possession. Noor Jahan was again arrested from the house of Khuda Bakhsh appct. Amir Bakhsh pointed out the place where he had thrown away the S.I's revolver which was found there. The appcts. were then arrested & put up for identification before the prosecution witnesses. After the investigation 28 men were sent up for trial with the result already stated.

3. The defence of the appcts. was denial of the occurrence as alleged by the prosecution. It was admitted that some occurrence took place but not in the manner deposed by the prosecution witnesses. The defence was that the S.I accompanied by a number of men raided Dalel's house at midnight, that Dalel shouted for help saying that a dacoity was being committed & that his neighbours collected & attacked the police party taking it to be a gang of dacoits. The allegations about the snatching away of the S.I's revolver & of the arrest of Noor Jahan & her rescue were denied.

4. It has been found by the Cts. below that the prosecution case as set out above is true. The case is supported by a large number of witnesses & circumstances. There is no reason to think that the findings of the Cts. below are wrong or improper. As a matter of fact Mr. B.C Saxena did not address me at all on the facts. He challenged the propriety of the convictions on the following grounds of law.

5. The first ground is that the warrant of arrest of Noor Jahan was illegal. The warrant was snatched away & torn by the rioters & could not be produced in evidence. One does not know, therefore, under what section it purported to have been issued. The clear evidence of the clerk of the Ct. that issued it supported by a copy of the order is that it was issued under Section 100 of the Cr PC. If the warrant was really issued under S. 100, there was nothing illegal or invalid in it. Mr. Saxena's argument was based on the statement of the S.I that the warrant was issued under S. 552. I do not know how the S.I could say that the warrant was issued under S. 552. He did not say that a note was endorsed upon it to this effect. He did not give evidence of the contents of the warrant which would show that it was issued under S. 552 & not S. 100. It seems to me that it was only an impression created in his mind that it was issued under S. 552. In any case whether it was issued under one section or the other was a question of fact & the Cts. below were fully justified in relying upon the evidence of the Ct. clerk & the documentary evidence & holding that it was issued under S. 100.

6. Under s. 552 a Dist. Mag. upon a complaint made on oath of the unlawful detention of a woman or a female child under the age of 16 years may make an order for the immediate restoration of the woman to her liberty or the female child to her husband, or parent having the lawful charge of her & may compel compliance with the order using such force as may be necessary. Noor Jahan is a woman & under S. 552 she could have been only restored to her liberty & could not have been arrested. The very fact that there was a warrant of arrest shows that it was really issued under S. 100 & not S. 552.

7. I am not prepared to hold that the warrant directed Noor Jahan's restoration to her liberty & that the S.I, wrongly arrested her. Whether the section under which the warrant was issued was endorsed upon it or not. I have not the least doubt that it directed Noor Jahan's arrest. If no section was endorsed upon it or S. 100 was endorsed upon it there was nothing illegal in the issue of the warrant. If S. 552 was endorsed upon it, then it would be an illegal warrant because, as I said earlier, no arrest could be ordered under that section. But so long as there was an order of a competent Mag. to arrest, it could not be said that the S.I, acted absolutely without jurisdiction in arresting her. It would then be a case only of his exceeding the jurisdiction & not of acting absolutely without jurisdiction. He could very well think that S. 552 was written by mistake for S. 100. He had no concern with the section, if any was mentioned; he was not required by law to satisfy himself that the warrant could be issued under that section. His sole duty was to execute the warrant by arresting Noor Jahan. If he acted in good faith colore offici, there could be no right of private defence against his act; see S. 99, I.P.C So long as his act of arresting could not be said to be absolutely without jurisdiction, it was one which at the worst could be said to be not strictly justifiable by law. Those who attacked him & his party could not escape the consequences by relying upon the right of private defence. The only effect of the illegality of the warrant would be that the S.I could not be said to have been acting in the discharge of his duty within the meaning of S. 332, I.P.C & the apprehension of Noor Jahan could not be said to be lawful & consequently that no offence under S. 332 or 225B, I.P.C would have been committed. But, all other offences such as those under SS. 323, 147, 379 & 342, I.P.C could certainly have been committed. If the arrest of a person is unlawful & he resists it or escapes from custody, he & others, who help him, commit no offence simply by resisting or escaping or abetting these acts. It should be noted that they are innocent, not because of any right of self defence, but because the acts do not amount to an offence at all. But if in addition they do other acts which are criminal, they would certainly be responsible for them unless they can show that they had a right to commit them. For instance, if they beat the S.I arresting the person in order to liberate him, they will be liable for the offence of beating him unless they can establish the right of private defence. If on account of the S. I's acting in good faith they are divested of the right of private defence under S. 99, they will be guilty under S. 323. I.P.C This law has been clearly laid down in Badri Gope v. Emperor, 5 Pat. 216 : (A.I.R(13) 1926 Pat. 237 : 27 Cr. L.J 418), Supdt. and Legal Remembrancer of Legal Affairs, Bengal v. Sona Mia, A.I.R(35) 1948 Cal. 95 : (48 Cr. L.J 464) & Ahmad Subhan v. Emperor, A.I.R(36) 1949 Cal. 407 : (48 Cr. L.J 616). The distinction between total absence of authority for the act & exceeding the authority has been emphasised in Cook v. Leonard, (1827) 6 B. & C. 351 : (5 L.J.M.C 99), Painter v. The Liverpool Oil Gas Light Com. Ltd., (1836) 3 Ad. & El. 433 : (111 E.R 478) and Corbett v. The King, (47 C.L.R 317). In the first case Bayley, J. observed at p. 354:

“If an officer does any act, part of which is, and part of which is not, authorised by the statute; or if a Mag. acts in a case which his general character authorizes him to do, the mere excess of authority in either case does not deprive the officer or Mag. of that protection which is conferred upon those who act in execution of it; but where there is a total absence of authority to do any part of that which has been done, the party doing the act is not entitled to that protection.”

8. In the second case Lord Denman, Ch. J., observed at page 444:

“A warrant is a justification to officers, because they are not to canvass the legality of the process they have to execute. Acts of Parliament have been passed for their protection, founded on that principle; and it is a just one; for it would be absurd that an officer charged with the execution of a warrant should have to pause & consider whether it was regularly issued or not.”

9. And Lord Williams, J. observed at p. 449:

“It would be wild work if the officer were entitled to scan the warrant delivered to him, for the purpose of ascertaining whether it was regular or not under the circumstances of the case.”

10. In the third case of (Corbett 47 C.L.R 317) it was laid down that it is not every defect or irregularity in warrant & every non-compliance with statutory provisions that destroys the efficacy of the process & that unless the warrant is a nullity, it would operate to confer upon the officer an authority, resistance to which would constitute an offence. Starke, J. who dissented, said at p. 339:

“A police officer is called upon to show his warrant only. But he cannot justify under his warrant if on its face it is such as no law authorizes, & is therefore a nullity & of no more effect than a piece of waste paper (Moravia v. Slopper, (1737) Willes, 30 : 125 E.R 1039; Andrews v. Marris, ((1841) 1 Q.B 3 : 113 E.R 1030; Carratt v. Morley, (1841) 1 Q.B 18 : 113 E.R 1036; Mayor Etc. of London v. Cox, ((1867) 2 H.L 239, at p. 263). Nor could he justify if he acted in excess of the authority of the warrant Ask v. Dawnay, ((1852) 8 Ex. 237 : 155 E.R 1334). Mere irregularities in procedure would not affect the justification, for it is no part of the duty of an officer to examine into the regularity of the proceedings upon which the warrant issues. It is his duty to execute the warrant according to its exigency.”

11. It is not shown that in the present case the warrant on the face of it was illegal or invalid & that the S.I had absolutely no justification for arresting Noor Jahan. He was directed to arrest her & even if some illegality was committed by the Addl. Dist. Mag. in issuing the warrant, the S. I not having any reason to know that it was committed, was bound to execute the warrant according to its contents & was protected by law from being attacked by others. Therefore even if the warrant purported to have been issued under S. 552, the appcts. would have been guilty under SS. 147 & 323, I.P.C, though not under S. 225-B. Mr. Saxena referred to Jagannath v. Emperor, A.I.R(19) 1932 All. 227 : (33 Cr. L.J 887): Bisu Halder v. Emperor, 6 Cr. L.J 38 : (6 C.L.J 127) & Queen-Empress v. Dalip, 18 All. 246 : (1896 A.W.N 48). In Dalip's case, 18 All. 246 : (1896 A.W.N 48), S. 99, I.P.C was applied & the accused were convicted under S. 323, I.P.C & 147, I.P.C, but not under SS. 332 & 225B, I.P.C In the other two cases, the warrants were held to be illegal & the police officers who executed them were held to have acted with complete absence of jurisdiction. The facts of those cases are different.

12. Another point taken by Mr. Saxena is that the prosecution witnesses did not point out the accused named by them. If a witness stated such & such accused took part in the crime that would be sufficient evidence against him. If the defence case was that the witness really did not know the accused, it should be for the defence counsel to cross-examine the witness & ask him to point out the accused named by him. This was not done in the present case & the statements of the witnesses that such & such accused took part in the riot were not challenged on the ground that they really did not know the witnesses & could not identify them.

13. Among the appcts. is Sulaiman. He was not known to the prosecution witnesses from before. He was arrested during the investigation & then was put up for identification. He was identified by two witnesses, both of whom made large number of mistakes. No reliance can be placed upon the evidence of these witnesses; they might have picked out the appct. by chance. The case against him was doubtful & the benefit of the doubt ought to have been given to him.

14. The S.I was wrongfully confined in the house of Nanhey appct. but there is no evidence that he had anything to do with the matter except that he owned the house. No responsibility for the wrongful confinement attached to him merely on account of his ownership of the house. There ought to have been some evidence to the effect that he took part in the wrongful confinement or abetted it, when it does not appear that it was committed in furtherance of the common object of the unlawful assembly. There is no evidence that Nanhey was even in the unlawful assembly.

15. I find that there was no illegality in the warrant & that all the apocts, except Sulaiman & Nanhey have been rightly convicted under s. 3,147-332, 225B & 379, I.P.C It was a serious offeree committed by the appcts. & I regret that the learned Mag. failed to realize the seriousness & inflict deterrent punishment. For this serious crime the sentences inflicted under S. 147 are three months' R.I on some & a fine of Rs. 40 on others, under S. 332 are six months' R.I on some & a fine of Rs. 50 on others & under S. 225-B are three months' R.I on some & a fine of Rs. 20 on others. The distinction between some appcts. & the others was not quite sound, for the offences of SS. 147 & 332, I.P.C the minimum sentence that should have been inflicted on any appct. was of one year's imprisonment. It was no use sentencing some appcts. to only a fine & the others to only three months' or six months' imprisonment. Then the learned Mag. has made the sentences concurrent without giving any reason & apparently without even applying his mind to the question. I find that Mags, invariably make the several sentences concurrent without exercising any discretion in the matter. It is laid down in S. 35 of the Code that one sentence of imprisonment will commence after the expiration of the other sentence of imprisonment unless the Ct. directs that such sentences shall run concurrently. Obviously the normal rule is that the sentences should be consecutive & they may be made to run concurrently only if there is some reason. Whether the sentences should run consecutively or concurrently is left to the discretion of the Ct. but the Ct. must exercise its discretion judicially. It must not exercise it arbitrarily & must not on every occasion blindly order the sentences to run concurrently as if there were no alternative; but this is done by nearly every Mag. I scarcely remember even one instance in which a Mag. ordered two sentences to run consecutively. In the present case there was no justification for ordering the sentences, which themselves were inadequate, to run concurrently; the appcts. should have been punished cumulatively for the different offences committed by them. I would have very much liked to make the sentences consecutive, but I am not sure if I can do so without a notice of enhancement having been given to the appcts. I am inclined to the view that making the sentences run consecutively instead of concurrently does not amount to enhancement. But this question was not argued at the Bar & as I am not quite certain that it does not amount to enhancement, I would refrain from making the alteration.

16. I maintain the convictions & sentences of all the appcts. except Sulaiman & Nanhey, & dismiss their appln.; if any of them is on bail, he must surrender himself to undergo the sentence. I allow the appln. of Sulaiman & Nanhey, set aside their convictions & sentences & acquit them. The fine, if realised from them, shall be refunded. If they are on bail, their bail bonds are discharged.

V.S.B

17. Ordered accordingly.