Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. This case comes before us on a reference by the SessionsJudge of Hooghly under Section 438 of the Code of Criminal Procedure, and wehave heard the learned Vakil who appeared in support of the reference. Itappears that one Upendra Nath Bhuttacharjee preferred a complaint of criminalbreach of trust under Section 406 of the Penal Code against certain persons,and this complaint was referred to the Police for enquiry by the Magistrate ofHowrah. One of the witnesses whom the complainant wished to be examined by thePolice in support of his charge was a lady named Monmohini Devi, and theSub-Inspector of Police who was holding the investigation by an order inwriting, required her to attend before him for the purpose of being examined asa witness in the case. She, however, failed to attend in accordance with hisorder, and accordingly the Sub-Inspector reported the matter to the DistrictMagistrate, who eventually issued a warrant for her arrest and productionbefore the Sub-Inspector in order that she might be examined by him as awitness. The Sub-Inspector, a head constable and some constables, armed withthe warrant, proceeded to the ladys residence to execute it, and there havinglain hands on one Aghoremoni instead of on Monmohini they were obstructed, andone or other of them was assaulted by certain persons. These persons, five innumber, were accordingly prosecuted for committing offences under Sections 143and 186 of the Penal Code, were convicted by the Deputy Magistrate of Howrah ofsuch offences, and sentenced each to pay a fine of Rs. 30 or in default toundergo one months rigorous imprisonment.

2. The learned Sessions Judge is of opinion that theDistrict Magistrate had no authority in law to issue a warrant of arrestagainst Monmohini for her production as a witness before the investigatingPolice Officer, and that therefore the conviction of the five accused personsunder Sections 143 and 186 of the Penal Code is bad in law; and in support ofthis view lie has referred to In re Rakhmaji I.L.R. 9 Bom., 558 [LQ/BomHC/1885/46] , Queen-Empressv. Tulsi Ram I.L.R. 13 Bom. 168 [LQ/BomHC/1888/56] Lilla Sing v. Queen-Empress I.L.R. 22 Cal. 286and the learned Vakil has drawn our attention to another casein point, In thematter of Baroda Kant Pramanick 1 Cal. W. N., 74. We have considered the termsof the reference, the explanation of the District Magistrate, the authoritiescited, and the arguments advanced by the learned Vakil in support of the reference,and we are of opinion that the Judge has taken a correct view of the law inthis case. We are unable to find any provision in the Criminal Procedure Codeauthorising the issue of such a warrant of (sic) as the District Magistrateissued in this case. Reading Sections 76 and 81 of the Code together it wouldappear that a Magistrate is only competent to issue a warrant of arrest forproduction of a person before his own Court and not before a Police Officer.

3. No doubt, as the District Magistrate points out, Section90 of the Criminal Procedure Code empowers him to issue a warrant in any casein which he is competent to issue a summons, but we observe that the Code makesno provision for the issue of a summons by a Magistrate requiring a person toappear before a Police Officer. The investigation in the present case was beingmade by the Police under Chapter XIV of the Criminal Procedure Code, andaccordingly the Sub-Inspector was empowered under Section 160 AnyPolice-officer making an investigation under this chapter may, by order inwriting, require the attendance before himself of any person being within thelimits of his own or any adjoining station who, from the information given orotherwise, appears to be acquainted with the circumstances of the case; andsuch person shall attend as go required. by an order in writing to require theattendance of Monmohini before him, and on her failure to comply with the ordershe might have been prosecuted for disobedience under Section 174 of the PenalCode; but we think that no warrant of arrest could under such circumstances belawfully issued against her. We are also of opinion that inasmuch as the issueof the warrant was illegal the convictions under Sections 143 and 186 of thePenal Code cannot be sustained, and the authorities above cited support thisview. The District Magistrate relies on Section 99 of the Penal Code; but wethink that this Section has no application to a case like the present in whichthe Police officers were acting under a warrant, the issue of which wasaltogether illegal. For the above reasons we set aside the conviction andsentences, and direct that the fines, if realised, be refunded.

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Queen-Empress vs.Jogendra Nath Mukerjee and Ors.(19.01.1897 - CALHC)