Prinsep and Stanley, JJ.
1. The petitioners have been convicted, Durga Jemadar under Sections 353, 225B, 143 and 341 of the Indian Penal Code, and Hari Manjhi under Sections 143, 341 and 225B, of the Indian Penal Code, and their offences may be shortly described as rescuing four persons who had been arrested and otherwise obstructing the execution of the warrant of arrest.
2. The only point for our consideration in this ease is whether the warrant was being rightly executed so as to make the arrest lawful and the obstruction thereto an offence. The warrant was addressed to the Court Sub-Inspector, and it was by an order in writing, signed by the Court Head-Constable, endorsed for execution by Churai Nath, and Guana Nath, and these two persons made the arrest which led to the occurrence constituting the offences of which the petitioners have been convicted.
3. It was contended both before the Magistrate and before the Sessions Judge in appeal that the execution of the warrant by these persons did not constitute a lawful arrest inasmuch as the officer to whom the warrant was directed did not lawfully endorse it to these persons, and it was further contended that, even if it had been lawfully endorsed, these two persons, not being police-officers, were not competent to make the arrest.
4. We think that on both points the objections are good. We observe from the Magistrate's judgment that he states that the Court Sub-Inspector 'was away then, and the Court Head-Constable acting for him' made the endorsement in question. Now, unless the Court Head-Constable was at that time actually filling the office of Court Sub-Inspector, any temporary arrangements made for the conduct of the office during the absence of the Court Sub-Inspector would not constitute him a Court Sub-Inspector for the purpose of endorsing this warrant. It would be a matter of no difficulty for the Court Head-Constable, if he had realized the consequences, to have obtained the entry of his own name on the face of the warrant as one of the persons to whom it was directed for execution. The endorsement, therefore, for service by these two persons did not make them competent to execute the warrant.
5. The second objection is also good because these persons, even if they had been legally appointed, could not have made the arrest, inasmuch as they were not police-officers. The Sessions Judge in appeal, as well as the Magistrate, got rid of this objection by considering that these two persons being persons on the process-serving establishment of the Court, should be regarded as police-officers within the terms of Section 79 of the Code of Criminal Procedure. We think that the terms of Section 79 are express in this respect, and that no other person except a police-officer is competent to execute a warrant of arrest under an endorsement from another police-officer. And in regard to the opinions expressed by the Sessions Judge and the Magistrate, we would draw attention to the difference between the service of a summons and the execution of a warrant of arrest. Section 68 declares that a summons shall be served by a police-officer or subject to such rules as the Local Government may prescribe in this behalf by an officer of the Court issuing it or other public servant. It is by reason of this provision that such officers as the two persons named in the endorsement are competent to act as process servers for the purpose of serving summonses and such processes, but under the terms of Section 79 they cannot by reason of such office be properly regarded as police-officers. The conviction must, therefore, be set aside, and the petitioners acquitted, the rule being made absolute.