Emperor v. Shib Charan And Others

Allsop, J.:— This is a reference by the learned Sessions Judge of Shahjahanpur suggesting that the conviction of Shib Charan and three others under section 353 of the Indian Penal Code should be set aside and that the sentences of fines of Rs. 30 which have been passed upon them should be remitted. The facts found are that a sub-inspector and some constables went to attach property in pursuance of a warrant drawn up under the provisions of section 88 of the Code of Criminal Procedure and that the accused persons attacked them in order to prevent attachment. The learned Judge has recommended that the convictions should be set aside because the warrant was illegal. He does not suggest that there was any illegality on the face of the warrant. He suggests that a warrant under section 88 cannot be issued unless a proclamation has already been issued under section 87 of the Code of Criminal Procedure and says that there is no direct evidence to prove that any such proclamation was issued. He has overlooked the presumption of law that the acts of a court must be presumed to have been duly performed. It is stated in the illustrations to section 114 of the Indian Evidence Act. that the court may presume that judicial and official acts have been regularly performed. There is not, as far as I understand, an iota of evidence to rebut this presumption in the present case. That is one reason why the reference cannot be accepted. In my judgment there is also another reason. Even if it were presumed that a proclamation had not been issued under section 87 of the Code of Criminal Procedure, I do not think that would justify the conclusion that the sub-inspector and the constables were not in execution of their duty as public servants when they went to execute the warrant. It is one thing to say that a warrant on the face of it is not a legal warrant which does not justify an officer in executing it and quite another to say that a warrant is not a legal warrant because the Magistrate who issued it did not act properly in so doing. It is not for sub-inspectors of police or officers of a court to demand that they shall not be bound to execute a warrant unless they are satisfied that the court which issued the warrant was acting properly within its jurisdiction and had a legal right in the circumstances to issue the warrant. If that were the law, it would lead to great confusion. All that the officer executing a warrant has to see is that it is on the face of it a legal warrant executed by a person who has authority to issue warrants of that nature. If such a warrant is-delivered to an officer of the court, he is bound to execute it and he is certainly acting in accordance with his-duty. All that is necessary to justify a conviction under section 353 of the Indian Penal Code is that the person against whom an assault is made or criminal force is used should be a public servant in the execution of his duty as such public servant. There is no force in this reference and I reject it. Let the papers be returned to the court below.