Rex v Misick (Confirmation Case No. 655 of 1941) [1940] EACA 67 (1 January 1940)

# Before LUCIE-SMITH and BARTLEY, JJ.

#### REX. Prosecutor

ν.

## KAKONYE ARAP MISICK. Accused

### Confirmation Case No. 655 of 1941

Arrest without warrant—Officer in Charge Police Station deputing subordinate to arrest without order in writing—Resistance to arrest—Criminal Procedure

Code, sections 27, 28 and 29.

The accused resisted arrest by subordinate police officers who had received verbal instructions from an officer in charge of a police station to arrest him on suspicion of murder. He was convicted of resisting police officers in the due execution of their duty contrary to section 231 $(b)$ of the Penal Code.

- Held (22-9-41).—(1) That if the reasonable grounds of suspicion which authorize an arrest without a warrant are in the knowledge of an officer in charge of a police station, if he wishes to depute his power to a subordinate, he must comply with the provisions of section 29 of Criminal Procedure Code and deliver to his deputy the statutory order in writing. - (2) That the subordinate police officers, in effecting the arrest on the verbal order of an officer in charge of a police station, were not acting in the due execution of their duty.

#### Accused absent unrepresented.

### Spurling, Crown Counsel, for the Crown.

ORDER.—The officer in charge, Kericho Police Station, on information received left for Chemagel with eight armed constables. At Chemagel he met Chief Arap Tile and placed the constables in his charge and the officer in charge of the Police Station issued instructions to the party to arrest three Kipsigis. including the accused, on suspicion of murder.

The evidence proves that the accused resisted arrest and he was convicted of resisting police officers in the due execution of their duty contrary to section 231 $(b)$ of the Penal Code.

The question for decision is: were the constables acting in the due execution of their duty in arresting the accused in the absence of the officer in charge of the Police Station on his verbal instructions.

Section 29 of the Criminal Procedure Code reads: —

"When any officer in charge of a police station requires any officer subordinate to him to arrest without a warrant (otherwise than in such officer's presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made."

The learned Crown Counsel made two submissions with regard to that section. The first was that section 29 only refers to offences under section 28. We cannot agree with that submission, as an officer in charge of a police station is included in the term "any police officer" in section 27.

The other submission was that section 29 of the Code does not override the provisions of section 27 under which "any police officer may without an order from a magistrate and without a warrant arrest any person whom he suspects upon reasonable grounds of having committed a cognizable offence".

We agree with that submission; indeed it is under section 27 of the Code that the officer in charge of the Police Station gets his original authority to arrest personally, without which he could not depute a subordinate officer to arrest on his behalf under section 29.

As section 29 of the Code is taken from section 56 of the Indian Criminal Procedure Code, we quote from the judgment of Prinsep, J. (Stanley, J. concurring) in *Queen Empress v. Basant Lall* (1900) 27 Calcutta 320 at page 323: "The order in writing is an authority to a subordinate police officer to make an arrest which the superior police officer, if present, could himself make on his own responsibility". In that case the Inspector who had investigated the case (in the Indian Code an investigating police officer is given the same powers as an officer in charge of a police station) handed a sub-inspector a *purwana*, which we understand to be a written authority, directing him to arrest certain persons. including the accused, for the offences of rioting and theft, both cognizable offences. As the point at issue in that case was whether or not the police officer effecting the arrest must show the person arrested the written authority under which he was acting, further reference to the case would be beside the point. The procedure adopted by the investigating police officer, however, in complying with the provisions of section 56 of the Indian Code although the offences were cognizable, and the extract quoted from the judgment, confirm our view that if the reasonable grounds of suspicion which authorize an arrest without a warrant are in the knowledge of an officer in charge of a police station and he is thereby empowered under section 27 of the Code to arrest an accused personally, if he wishes to depute his power to a subordinate he must comply with the provisions of section 29 of the Code and deliver to his deputy the statutory order in writing.

For the reasons given we are of the opinion that the police officers in this case were not acting in the due execution of their duty and we therefore set aside the conviction and sentence and order the accused's release on this charge.