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Case Number

Criminal Revn. No. 843 of 1935

Judges

Niamat Ullah, J.

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Smart Summary

Structured Summary of the Opinion (Revision Application — Bareilly)

Factual and Procedural Background

This opinion concerns a revision application against an order of the Sessions Judge, Bareilly, in appeal from a Magistrate of that district. The Magistrate convicted the applicants under offences described in the opinion (noted as "Ss. 147, 332/148 ??? 225-B/149, I.P.C" in the provided text) and sentenced each of the accused to nine months' rigorous imprisonment. On appeal the Sessions Judge reduced the sentences of some accused to three months' R.I. and others to six months' R.I.

The factual allegations, as recited in the opinion, are that on 23 February 1935 constables and chaukidars went to village Parewa on a search warrant (issued under Section 100 of the Criminal Procedure Code) to search for and produce one Mt. Mohania, who was alleged to have been enticed away by Mohan Chamar. The police, accompanied by two Chamars and two chaukidars, found Mt. Mohania at Mohan's house, took her into custody and dragged her for some distance. She was unwilling to leave and shouted for help. A crowd of villagers assembled and, in an ensuing scuffle, injuries were caused to constables, one chaukidar and two Chamars of Budaun district; some villagers, including Kallan Beg (who has since died) and applicant Khem Karan, also received injuries. The constables reported the incident and prosecutions followed.

At trial the accused gave a different account: they said the police had entered by mistake into the house of Baldeo Chamar and had assaulted Baldeo; the defence contended that any injuries resulting to the police were the result of the villagers exercising the right of private defence. Both the Magistrate and the Sessions Judge rejected the defence and convicted the applicants, although the Sessions Judge reduced sentences in some cases.

Legal Issues Presented

Whether there was any flaw in the findings of fact reached by the Magistrate and the Sessions Judge that would justify interference in revision.
Whether the search warrant issued under Section 100 of the Criminal Procedure Code was invalid or should not have been executed because Mt. Mohania was not "so confined" as to amount to wrongful confinement.
Whether the officer executing the warrant (or those deputed by him) was competent to execute it, specifically whether the head-constable acting for an absent Sub-Inspector could deputize two constables to execute the warrant.
Whether the villagers (including the applicants) acted in the lawful exercise of the right of private defence as defined by Section 99, I.P.C., and thus were justified in injuring the police.
Whether the circumstances of provocation and the roles of individual accused warranted reduction of sentences or classification of some as "ring-leaders."

Arguments of the Parties

Applicants / Defence

The defence contended that the police, when they arrived, by mistake entered Baldeo Chamar's house and assaulted Baldeo; thus the villagers reacted to unlawful police conduct.
It was argued that Mt. Mohania was not detained against her will: she had been living with Mohan for a considerable period and had borne a child there, and therefore there was no recent enticement amounting to wrongful confinement.
On this basis it was submitted that the police were not justified in dragging her away and that the villagers' actions were an exercise of the right of private defence (as a response to police aggression).
The defence also challenged the legality/competence of execution of the warrant, arguing the person to whom the warrant was addressed (the Sub-Inspector) was on leave and the head-constable who acted for him may not have been competent to deputize the two constables who executed the warrant.

Prosecution

The prosecution's version (accepted substantially by the lower courts) was that Rammu applied for a search warrant on the basis that Mohan had enticed away Mt. Mohania and was detaining her against her wishes; a Magistrate issued a warrant under Section 100 CrPC and the police executed it at Mohan's house.
The prosecution admitted that Mt. Mohania was unwilling to leave and shouted for help, and that villagers tried to rescue her; but it maintained that the police were acting under a warrant and in good faith, and that the accused caused injuries to police and others in the scuffle.
The prosecution relied on the factual findings that supported conviction for offences as framed by the Magistrate and the Sessions Judge.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court reviewed both the factual findings and the legal points raised on revision. Its reasoning proceeded in identifiable steps:

On factual findings: The Court was addressed at length for the applicants but concluded there was no such flaw in the findings of the lower courts as would justify interference in revision with the findings of fact. The evidence given for the prosecution was largely accepted by both lower courts and the Court found no adequate basis to overturn those findings.
On the interpretation of Section 100 CrPC: The Court considered the contention that because Mt. Mohania was not "so confined" the police should have refrained from executing the warrant. The Court held that the words "so confined" in Section 100 must be read in context to mean "believed to be so confined" — the Magistrate makes a prima facie evaluation and if he issues a warrant the officer to whom it is addressed must execute it according to its tenor. The officer executing the warrant is not expected to disregard the Magistrate's finding; his duty is to search for the person believed by the Magistrate to be unlawfully detained and take that person to the Magistrate.
On the Magistrate's procedure: The Court observed that the Magistrate appears to have accepted Rammu's affidavit at face value without detailed examination; the Court remarked that such slipshod proceedings on the part of the Magistrate were partly responsible for the unfortunate events that followed.
On competency to deputize and technical defects in the warrant: The Court declined to pronounce a definite opinion on whether the head-constable who received the warrant was competent to deputize the constables who executed it. The Court considered that the validity or otherwise of the warrant was immaterial to the legal question whether the villagers acted in private defence, since the constables were acting under colour of office and apparently in good faith. Any mere technical defect in the warrant would not confer on the villagers a right of private defence in the face of constables acting in good faith.
On private defence under Section 99 (I.P.C.): The Court held that the accused were not protected by S. 99 I.P.C., which defines the limits of private defence. Given the findings that the constables were acting in good faith under a warrant, the villagers had no right of private defence as a legal justification for their conduct.
On provocation and mitigation: Although rejecting private defence, the Court accepted that the villagers acted under provocation. Many villagers had no personal interest in the matter and were moved by the sight of Mt. Mohania being dragged from the house where she had lived as Mohan's wife. The learned Sessions Judge had taken this aspect into account in reducing sentences for some applicants.
On the assessment of "ring-leaders" and sentence reduction: The Sessions Judge classified certain persons (Likkhi, Baldeo Bhangi, Jisukh, Har Sahai, and Khem Karan) as ring-leaders and imposed (or maintained) heavier sentences on that basis. The revision court disagreed with the finding that these men took a more prominent part in the conflict than others; it found the characterization of ring-leaders rested on their social position rather than evidence of more active participation. Consequently, the Court reduced the sentences imposed on Likkhi, Baldeo Bhangi, Jisukh, Har Sahai and Khem Karan to three months' rigorous imprisonment.
On disposition: Subject to the modification of sentences above, the Court dismissed the revision application. It ordered that the applicants surrender to their bail. The Court noted that the application of Kalian/Kallan Beg abates (the opinion records that Kallan Beg has since died).

Holding and Implications

Holding: Subject to the modification of sentence described below, the revision application is dismissed. The Court affirmed the factual findings of the lower courts, rejected the plea that the villagers' conduct was protected as private defence under Section 99 I.P.C., and concluded that the police executing a warrant issued under Section 100 CrPC were to be taken as acting in good faith for the purposes of the private defence question.

Sentence modifications (direct effect on parties):

The sentences imposed on Likkhi, Baldeo Bhangi, Jisukh, Har Sahai and Khem Karan are reduced to three months' rigorous imprisonment.
Other convictions and sentences remain unaffected by the revision court except insofar as the Sessions Judge had earlier reduced some sentences to three or six months and those reductions were largely upheld subject to the modifications above.
The applicants are to surrender to their bail.
The application of Kalian/Kallan Beg abates (the opinion records that he has since died).

Implications: The decision directly affects the sentences of the named accused and affirms the factual determinations of the trial and appellate courts; the Court did not purport to set any new legal precedent. It clarified the practical operation of Section 100 CrPC (emphasizing the Magistrate's prima facie role and the duty of the executing officer to act on the Magistrate's finding) and rejected the view that mere lack of observed "confinement" at the execution site would relieve the executing officer from carrying out the warrant. The opinion contains no citation of prior authoritative decisions and does not announce a broader rule beyond its reasoning in this case.

B.D/R.K

Order accordingly.

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Kallan Beg v. Emperor

1. This is an application revision of an order of the Judge, Bareilly, in appeal from an order of a Magistrate of that district convicting applicants under Ss. 147, 332/148 ??? 225-B/149, I.P.C The Magistrate ??? each of the accused to nine ??? R.I On appeal the learned ??? Judge reduced the sentences of ??? to three months' R.I, and of others six months' R.I The gist of the ??? with which the applicants were ??? is that on 23rd February 1935 ??? attacked two constables and a few tukidars, who had gone to village ??? to search Mt. Mohania and to ??? her to the Court of the Magistrate ??? had issued a warrant under Section 100 of the Cr PC, attempted to prevent the ??? from taking Mt. Mohania ??? of the applicants, namely Kallan ??? has since died, and his case requires further consideration. The ??? accused are Karmi and Chamar ??? of village Parewa. The facts and by both the lower Courts may be ??? stated. Rammu Chamar of village ??? district Budaun, made an application to a Magistrate of his district ??? that his wife, Mt. Mohania, had ??? away by Mohan Chamar, a Meat of village Parewa. The ??? was supported by an affidavit, in ??? was stated that Mohan intended sell Mt. Mohania somewhere in the ??? contrary to the wishes of the ??? Rammu prayed that a search ??? wader Section 100 of the Cr PC, be ??? and Mt. Mohania be brought to ??? Court. A search warrant was issued ??? sent to the “Sub-Inspector in charge thana Bhojepura,” which is in Bareilly strict. Village Parewa, where Mohan sided, is within the police circle Bhojepura. The warrant was sent through the strict Magistrate and the ??? of Police, Bareilly. It was received ??? Bhojepura on 21st February 1935, ??? the Sub-Inspector in charge of the and was on leave. The head-constable ??? acted for him received the warrant ??? deputed two constables, Safdar Ali ??? Vakil Ahmad, to proceed to village ??? and make a search for Mt. ??? in the house of Mohan and to ??? her as directed in the warrant. The two constables, accompanied by ??? and two other Chamars of ??? and two chaukidars, reached ??? Parewa on the morning of the 23rd ??? they arrived at Mohan's house Mt. ??? was found warming herself over are in the courtyard. The constables took her into custody and dragged her for about 80 or 90 yards. It was admitted on behalf of the prosecution that she was unwilling to leave Mohan's place and that she shouted for help. A large number of villagers were attracted to the scene and attempted to rescue her from police custody. In the scuffle which, ensued injuries were caused to the constables, one chaukidar and two of the three Chamars of the Budaun District. Among the villagers Kallan Beg, who has since died, and the applicant Khem Karan also received injuries. It has been, ??? by the lower Courts that before the conflict between the villagers and the police party assumed serious proportion some villagers appeased the rest of them, saying that the police were taking Mt. Mohania under a warrant, which was in order, and that thereafter the villagers did their best to smooth matters over. On the report of the constables the applicants were prosecuted for the offences already mentioned. The story told by the accused was that the police arrived at about 4 or 5 in the morning and by mistake entered the house of Baldeo Chamar, whom they questioned as to where Mt. Mohania was. After some altercation Baldeo Chamar was assaulted by the police. The suggestion on behalf of the defence was that whatever injuries were caused to the police party were the result of the exercise by the applicants of their right of private defence. Neither of the two Courts below has accepted the case for the defence. The evidence adduced on behalf of the prosecution was in the main accepted. The Magistrate acquitted some of the accused before him and convicted the applicants, against whom, he found the case fully established. The-learned Sessions Judge has substantially taken the same view.

2. I have been addressed at some length by the learned advocate who appeared for the applicants. I am not satisfied that there is any such flaw in the findings arrived at by the lower Courts as would justify interference in revision with the findings of fact reached by those Courts. The conviction was also assailed on a point of law which had been raised in the Courts below. It has been found by the Magistrate, and the learned Sessions Judge seems to agree with him, that Rammu obtained the warrant of search on a misrepresentation of facts. It was not a fact that Mt. Mohania had been recently enticed away by Mohan and was being detained by him against her consent. On the contrary the evidence showed that she lived with Mohan for a considerable length of time and gave birth to a child while living in his house. It is pointed out that Mt. Mohania, far from being unwilling to live with Mohan, created a scene when she was being removed by the police from his house. It is argued that the police were not justified in dragging her and they ought to have known from what they saw for themselves that she was not confined under such circumstances that the confinement amounted to an offence. Reference is made in this connection to the terms of Section 100 of the Cr PC, which provides that if a Magistrate, such as is therein mentioned, has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search the person so confined, and the person, if found, shall be immediately taken before the Magistrate. Stress is laid on the words “so confined,” and it is contended that if the person to whom a warrant is issued for execution finds that the person in question is not confined so as to make the confinement an offence, he should refrain from executing the warrant. I do not think that this contention has force. The words relied on should be taken in the context in which they occur, and should be taken to imply “believed to be so confined.” The section, which in this respect is not happily worded, lays down that it is for the Magistrate to find whether there are reasons for believing that any person is in wrongful confinement; and if he is so satisfied and issues a search warrant, the police officer, to whom the warrant is addressed, has merely to execute it according to its tenor. He must search for the person believed by the Magistrate to be unlawfully detained. The officer charged with the execution of the warrant is not expected to disregard the finding of the Magistrate, and all that he is to do is to search for the person in question and to take him to the Magistrate.

3. If a Magistrate properly discharges his duty, an occasion is not likely to arise for the officer executing the warrant to ??? that it ??? a manifestly ??? assumption. In this case the Magistrate did not question Rammu and accepted ??? affidavit at its face value. He ??? have examined him in detail as ??? the time when the alleged ??? occurred and the circumstances in ??? the woman was said to have ??? against her wishes. There is ??? doubt that the slipshod proceeding the Magistrate was partly responsible of the unfortunate affair. It was next contended that the warrant was addressed the “Sub-Inspector in charge of that Bhojepura” and that the head constable who was at that time acting for him, ??? not competent to depute the two constables, and that the latter were not competent to execute the warrants I do in consider it necessary to pronounce a definite opinion on this point. The ??? or otherwise of the warrant is ??? in connection with the accused's ??? that they acted in the exercise of ??? right of private defence. Such a right did not exist, as the constables ??? under colour of their office; and even their act was not strictly justifiable ??? law, the villagers had no right of private defence, since the constables were ??? in good faith. There is nothing in to evidence which militates against the a sumption that the constables were ??? in perfect good faith. Any technical ??? therefore, in the warrant is immaterial: considering the question whether the villagers acted in the exercise of the right of private defence. It was in controversy in the lower Courts as to whether the constables were in uniform ??? had declared that they were acting in the execution of a warrant. The ??? might have been different if, as ??? alleged on behalf of the defence, the constables were in plain clothes, and did ??? give the villagers to understand that the were taking Mt. Mohania in the execution of a search warrant issued by ??? Magistrate of Budaun. In view however of what has been found by the ??? Courts, the accused cannot be considered to have acted in the exercise of the right of private defence.

4. While I hold that the applicants at not protected by S. 99, I.P.C, which defines the limits of the right of privet defence, I think that the villagers acts under provocation. Most of the ??? had no personal interest in the after and were prompted by ??? They were shocked to see Mt. ??? being dragged at the instance of ??? from the house of Mohan, with ??? she had lived as his wife and her ??? being disregarded by the police, he villagers could hardly be expected to ??? the legal position.

5. All that as present to their minds at that ??? was the action of the police, ??? taken by itself, was considered by ??? villagers as cruel and high-handed, he learned Sessions Judge apparently ??? this aspect of the case into consideration in reducing the sentence in case of any of the applicants to three months' ??? imprisonment. In the case of ??? Baldeo Bhangi, Jisukh, Har Sahai ??? Khem Karan, he reduced the sentence ??? 6 months' R.I, as he regarded them ??? be ring-leaders. I find that they were ??? to be ring-leaders not because ??? part they took in the not was of a ??? character from that taken by ??? rest of the accused, but because they ??? men of better position in life. The Learned Judge has regarded Likkhi and Baldeo Bhangi as ring-leaders, because ley are ??? Jisukh, because ??? is a thanait,” and Har Sahai, because ??? is a village ‘muqaddam.’ In the ??? of any finding that these men took ??? prominent part than the others I ??? not think that it is right to regard ??? as ring-leaders. Khem Karan has been put in the same category, because ??? received injuries and should therefore ??? considered to have been in the thick ??? the fight. I am unable to accept this round as justifying enhanced punishment. Khem Karan is not shown to have ??? the assault or was otherwise “in the hick of the fight.”

6. The fact that he received injuries while ??? did not, may be due to variety of circumstances in which he was hit, though ??? was less to blame than others. For these reasons I reduce the sentences massed on Likkhi, Baldeo Bhangi, Jisukh, lar Sahai and Khem Karan, to three ??? rigorous imprisonment. Subject ??? this modification the application for ??? is dismissed. The applicants hall surrender to their bail. The application of Kalian Beg abates.

B.D/R.K

7. Order accordingly.

Kallan Beg v. Emperor

Structured Summary of the Opinion (Revision Application — Bareilly)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants / Defence

Prosecution

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kallan Beg v. Emperor

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