JUDGMENT P. Govinda Menon, J. 1. This is an appeal filed by accused 1 and 2 in Sessions Case 23 of 1962 on the file of the Sessions Judge of Kottayam. The first accused has been convicted under S.302 I. P. C., for causing the death of Kesavan Nair, a police constable. He is also convicted of the offences under S.353, 224 and 324 I. P. C. The second accused is found guilty and convicted of the offence punishable under S.225 I. P. C. 2. The accused and three others were accused in C. C. 699/61 on the file of the Sub Magistrate of Punalur. The accused had appeared in court and were enlarged on bail. P. Ws. 1 and 10 had stood surety for them executing surety bonds. As the accused did not appear in court, notice was issued to the sureties to show cause why their bail bonds should not be cancelled. On receipt of the notice they appeared in court and filed an application Ext. P. 15 promising to assist the police to effect the arrest of the accused and have them produced in court and wanted two weeks time for the purpose. The Sub Magistrate granted the request and issued a warrant Ext. P. 2 for the arrest of the first accused in this case. As the warrant was to be executed outside the local limits of his jurisdiction, the warrant was forwarded to the Sub Divisional Magistrate of Ponkunnam. The Sub Divisional Magistrate endorsed the warrant for execution to the Sub Inspector of Police, Mundakayam. He, in turn, endorsed the warrant to P. W. 2 a police constable. On 2-3-62 P. W. 2 went to the shop of P. W. 1, one of the sureties. P. W. 10 the other surety was also sent for. They informed P. W. 2 that it would not be possible to have the accused arrested during day time and that if P. W. 2 could come after 8 p. m., they would be able to point out the accused. P. W. 2, therefore, returned to the police station and reported the matter to the Sub Inspector of police. He requested for additional aid and the Sub Inspector deputed two other police constables P. W. 4, Thomas and deceased Kesavan Nair to assist him. P. W. 2, therefore, returned to the police station and reported the matter to the Sub Inspector of police. He requested for additional aid and the Sub Inspector deputed two other police constables P. W. 4, Thomas and deceased Kesavan Nair to assist him. They went in a jeep to the shop of P. W. 1 and from there P. Ws. 2, 4 and deceased Kesavan Nair accompanied by the sureties P. Ws. 1 and 10 proceeded to the house of the first accused. P. Ws. 2 and 4 were in their uniform and deceased Kesavan Nair was in plain clothes. They reached the house of the first accused and P. W. 2 enquired of his mother whether her son the first accused was there. On being told that he was not there, they left the house and proceeding along the pathway sat on a rock by the side of the pathway in the rubber estate of Skaria awaiting the arrival of the first accused. At about 9 p. m., they saw people coining with light towards the north along the pathway. On seeing this they walked towards them and found that the party who were coming were the two accused and P.W. 13 Barber Kuttappan. The first accused had a lighted candle fixed in a coconut shell and P. W. 13 had a torch light. P. W. 13 has given evidence that when they saw the police party coming the second accused told the first accused that it was police who were coming and the first accused replied, 'let them come, we will see.' As soon as they neared the police party P. W. 13 ran away. P. W. 1 pointed out the first accused as the person against whom the warrant was issued. P. W. 2 then appraised the first accused that they were police constables, that there was a warrant for his apprehension issued by the Punalur Magistrate and caught hold of his hand in token of arrest. The first accused, thereupon pushed him and P. W. 2 fell into a pit by the side of the pathway. P.W. 1 then approached the first accused requesting him not to do anything and the first accused whipped out his dagger M. O. 1 and stabbed P. W. 1 three or four times on his hand and shoulder. The first accused, thereupon pushed him and P. W. 2 fell into a pit by the side of the pathway. P.W. 1 then approached the first accused requesting him not to do anything and the first accused whipped out his dagger M. O. 1 and stabbed P. W. 1 three or four times on his hand and shoulder. Deceased Kesavan Nair then approached the first accused to catch him when the first accused turned towards him and stabbed him three or four times in quick succession on his abdomen, hand back, etc. Saying that he was stabbed Kesavan Nair held the first accused by his waist. P. W. 2 had by then got up from the pit and he lied the hands of the first accused with his muffler. The first accused cried 'Ayyo' and it is alleged the second accused who was there asked the police party who they were to arrest without the Sub Inspector. He took out his knife and aimed a stab at (P. W. 2. P. W. 4 the other police constable caught hold of the second accused and P. W. 2 with his lathi aimed a blow at the second accused asking him to put down the knife. The second accused wriggled out of the hold and ran away. : 3. The injuries on deceased Kesavan Nair were bandaged and they proceeded to the place where the jeep was stationed. The first accused was also with them. On the way they met P. W. 12 and then P. W. 17 and told them what had happened. They proceeded to the Mundakayam police station. When the jeep was stopped at the police station P. W. 4 took the first accused to the station. As the Sub Inspector was not there they returned to the jeep and took the injured Kesavan Nair to the hospital. The doctor was not there and P. W. 2 went and fetched the doctor. By that time the Sub Inspector of police also reached. He recorded a statement Ext. P. 1 from P. W. 1 at 10.15 p. m. P. W. 1 was admitted as an inpatient. He was examined by P. W. 7 and his wound certificate is Ext. P. 9. He was discharged on 5-3-62. After rendering first aid Kesavan Nair was removed to the District hospital, Kottayam for better treatment. He recorded a statement Ext. P. 1 from P. W. 1 at 10.15 p. m. P. W. 1 was admitted as an inpatient. He was examined by P. W. 7 and his wound certificate is Ext. P. 9. He was discharged on 5-3-62. After rendering first aid Kesavan Nair was removed to the District hospital, Kottayam for better treatment. P. W. 11 the Assistant Surgeon attached to the hospital admitted him as an inpatient at 12.40 a. m. A letter Ext. P. 4 was sent to the Sub Magistrate, Kottayam for recording the statement of Kesavan Nair. P.W. 3 the Sub Magistrate came to the hospital and recorded the statement Ext. P. 5. P. W. 11 the Medical Officer who was present has appended a certificate that the injured was in a position to understand the questions and give coherent answers. P. W. 14 the Chief Surgeon of the hospital assisted by P. W. 11 performed an abdominal operation. In spite of the best medical aid Kesavan Nair succumbed to his injuries the next day at 12.50 p.m. Information was given to the Kottayam East Police station and P. W. 8 the Circle Inspector reached the hospital and held the inquest. After the inquest P. W. 11 conducted the autopsy. After questioning all the witnesses and completing the investigation P. W. 19 the Circle Inspector of police laid the charge sheet against both the accused. 4. When questioned at the preliminary enquiry the first accused admitted that he was an accused in C. C. 699/61 of the Punalur Sub Magistrate's court, that he was enlarged on bail, but stated that he did not know whether notice was sent to the sureties or whether warrant had been issued for his arrest. He stated that the police men were not in uniform that there was no torch light or hurricane lantern with them, that he was not told about the warrant and he was not arrested. In the Sessions Court he elaborated the statement by saying that on that day while he was returning to his house along the pathway in the rubber estate, about five persons who were hiding behind the rubber trees, sprang upon him, caught hold of him and they felled him down and thinking that he would be killed he stabbed three or four persons. The second accused stated in the committing Magistrate's court that on that day himself, the first accused and P. W. 13 came together and that there was no torch or hurricane lantern and that the policemen were not in uniform. He denied the overt act ascribed to him. In the Sessions Court he stated that while they were coming the first accused had a lighted candle in a cocoanut shell, suddenly it went out and he heard the cry 'Ayyo, Ayyo' and the sounds of beating and fisting, that he was standing near a rubber tree 10 or 15 feet south and saw a light being flashed and in the light saw blood on the body of some of them and the first accused with his hands tied and that he could identify P. Ws. 1, 10 and 17. He stated that it was because he did not agree to be a prosecution witness, that he was falsely implicated in the case. The Vicar of the Kannimala church was examined as a defence witness to prove enmity between the first accused and some of the witnesses. 5. That P. W. 1 and Kesavan Nair sustained serious injuries in an encounter which admittedly took place on that day and that Kesavan Nair died as a result of the injuries is amply proved and is not disputed. The injuries on deceased Kesavan Nair have been correctly noted in the post mortem certificate Ext. P. 11. He had five incised wounds. Injury No. 1 was sutured incised wound 12" long on left side of abdomen commencing 1" to the right of the umbilicus and ending over the left flank just below the left sub costal margin. On dissection this injury was found to be opening into the abdominal cavity. There was a sutured injury at the root of the mesentery and a sutured wound 1/4" long on a part of the small intestine. The injury was found to be penetrating to the gut lumen. According to the doctor death was the result of syncope due to shock and haemorrhage from injury No. 1 and the corresponding internal injuries noted. All the doctors who had occasion to examine him were of opinion that the penetrating abdominal injury was sufficient in the ordinary course of nature to cause death. P. W. 1's injuries have been noted in the certificate Ext. P.9. All the doctors who had occasion to examine him were of opinion that the penetrating abdominal injury was sufficient in the ordinary course of nature to cause death. P. W. 1's injuries have been noted in the certificate Ext. P.9. They were all incised injuries. . 6. The question that arises for decision is whether the injuries on P. W. 1 and Kesavan Nair were caused by the first accused as alleged by the prosecution. It is practically admitted by the first accused. P. Ws. 1, 2, 4 and 10 are the eyewitnesses who speak about the occurrence. P. W. 1 is Varkey alias Kochu. He knows both the accused for the past 20 years. Along with P. W. 10 he had stood surety for the accused. He speaks to the application made by him and P. W. 10 to the court and the Magistrate issuing a warrant, P. W. 2 coming to his shop for arresting the first accused, his telling the constable that the accused cannot be arrested during day time and that he should come at night. He has further deposed to the visit of P. Ws. 2, 4 and deceased to his shop at about 8-30 p, m. and starting from the shop, on the way P. W. 10 getting a hurricane lantern from the house of P. W. 17, proceeding to the house of the first accused, making enquiries about him and after knowing that he was not there their coming and sitting on a rock near the footpath in the rubber estate. Then he stated about accused 1, 2 and P. W. 13 coming from the north, his pointing out the first accused to P. W. 2, telling the first accused about the warrant and arresting him and then he gave a detailed account of what happened subsequently. 7. P. W. 2 is the police constable Pappu attached to the Mundakayam police station who was deputed to arrest the accused. He has proved Ext. P. 2 the warrant issued by the Sub Magistrate of Punalur for the arrest of the first accused. The warrant was endorsed to the Sub Inspector of Police of Mundakayam by the Sub Divisional Magistrate of Ponkunnam and the Sub Inspector had endorsed the same to him for execution. He has specifically proved that he is the police constable referred to in Ext. The warrant was endorsed to the Sub Inspector of Police of Mundakayam by the Sub Divisional Magistrate of Ponkunnam and the Sub Inspector had endorsed the same to him for execution. He has specifically proved that he is the police constable referred to in Ext. P. 2 and it was he who was authorised to arrest the accused. Then he has narrated the occurrence in detail, corroborating in full the evidence given by P. W. 1. P. W. 4 is another police constable. He has also supported the evidence given by the other witnesses. He took the first accused to the Mundakayam police station when the jeep reached Mundakayam. At the station he reported to the constable on duty that the first accused had stabbed Kesavan Nair and P. W. 1 and that fact had been noted in the general diary. P. W. 10 is the other surety. He has also given detailed evidence regarding the incident. The accused has, in fact, admitted the presence of the police constables and P. Ws. 1 and 10. His only case being that they were not in uniform and they have not come forward with a true version of the occurrence. 8. Regarding P. W. 1 it was stated that even though he had stood surety for the accused the relationship between him and the first accused has not been cordial for sometime and that P. W. 1 had threatened that he would be done away with. It was suggested that the first accused had beaten P. W. 1's son Baby a month before the occurrence and that there was a quarrel between Kurien the younger brother of P. W. 10 and the first accused. The suggestion had been denied by the witness. His statement Ext. P. 1 given soon after the occurrence is substantially in conformity with his evidence in court. P. W. 10 is a cousin of P. W. 1. His younger brother Kurien was an accused in the Punaloor case. His father Chacko Chacko was a surety for him, but P. W. 10 went to the court and executed the surety bond as if he was Chacko Chacko. His evidence was seriously challenged on the ground that he is a person who had played fraud on the court and therefore he is a witness on whose testimony no reliance can be placed. His evidence was seriously challenged on the ground that he is a person who had played fraud on the court and therefore he is a witness on whose testimony no reliance can be placed. If his evidence had stood by itself any court would have been reluctant to accept his evidence, but in this case where his presence is admitted, we do not find sufficient grounds to reject his testimony, especially when it is amply corroborated by the other evidence in the case. 9. Apart from the evidence of P. Ws. 1 and 10 who, in a way, could be said to be interested, we have the disinterested evidence of responsible public servants who have no axe to grind against the accused. No enmity has been suggested against either of them. Certain minor variations in the evidence of the witnesses were pointed out, but they are not such as to affect their credibility. We have also the evidence of P. Ws. 12 and 17, two other disinterested witnesses to whom P. W. 1 mentioned immediately after the occurrence that the first accused had stabbed him and deceased Kesavan Nair. Nothing has been pointed out as to why we should not accept their evidence. P. W. 13, who was admittedly with accused 1 and 2, has deposed that P. Ws. 1 and 10 were present with the policemen and that P. W. 1 and a police constable had torch lights with them and P. W. 10 had a lantern with him. There is then the dying declaration recorded from deceased Kesavan Nair wherein he has mentioned the first accused as the person who had inflicted the injuries on him. The mere fact that all the details are not incorporated in the statement is no reason to discard the dying declaration. We have carefully scrutinised the dying declaration in ail its aspects and find that it has passed the test of reliability. We have been taken through the evidence of all the witnesses and after having carefully considered their evidence in the light of the strong criticisms made against their veracity, we have no hesitation in holding that they are perfectly reliable witnesses and that they have given a true version of the occurrence. 10. We have been taken through the evidence of all the witnesses and after having carefully considered their evidence in the light of the strong criticisms made against their veracity, we have no hesitation in holding that they are perfectly reliable witnesses and that they have given a true version of the occurrence. 10. Having found that it was the first accused who inflicted the injuries on the deceased which resulted in his death and having found that the occurrence took place in the manner spoken to by the prosecution witnesses, the next question is whether the first accused was justified in doing so and whether he had any right of private defence as contended for by his learned counsel. What is argued is that Ext. P. 2 is not a legal warrant since it is not endorsed over by name to P. W. 2 as contemplated in S.79 of the Criminal Procedure Code and if in trying to execute such a warrant resistance is offered and injuries are caused to the person who executes such a warrant the accused cannot be said to have committed any offence. 11. The learned counsel referred us to a recent decision of this court in Kunju v. State of Kerala ( 1961 KLJ 769 ), decided by one of us, for the position that if the warrant is not endorsed in the name of a particular person it will not be a legal warrant, and if a person arrested in pursuance of such a warrant escapes from custody it would not amount to an offence. It cannot be denied that for a conviction under S.224 or 225 I. P. C., the prosecution should show that the apprehension or the arrest made or attempted to be made was lawful in every way. S.79 Cr. P. C. says : "A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed." The learned Public Prosecutor argued that 'name' denotes the distinctive appellation of an individual, and the endorsement P. C. 440 endorsed on the warrant would satisfy the requirements of S.79. A reference to the forms in the Criminal Procedure Code and the Civil Procedure Code make the distinction between name and designation. A reference to the forms in the Criminal Procedure Code and the Civil Procedure Code make the distinction between name and designation. P. C. 440 is the designation of the person and not his name. When the section speaks of giving a person's name there is no reason to think that his designation would suffice. The learned Public Prosecutor has not been able to point out any one decision which has held that endorsement in the warrant under S.79 without mentioning the name can be considered to be a legal warrant. We, therefore, find ourselves unable to agree that the endorsement need not be by name. The prosecution has, therefore failed to prove that the apprehension was under a strictly legal warrant. It was also argued by the learned defence counsel that even the endorsement P. C. 440 would not be sufficient as there would be constables bearing the number 440 in other districts of the State and the endorsement even by designation should have P. C. K. 440. We hold that conviction under S.224 and 225 I. P. C., cannot be legally sustained. 12. But the legality of the warrant will not affect the legality of the conviction of the first accused. Reference may be made to S.99 I. P. C. S.99 reads : "There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law." The question is whether the arrest in this case could be said to have been "done or attempted to be done by a Public Servant acting in good faith under colour of his office". S.99 applies to cases where there is jurisdiction to do an act, but that jurisdiction has been in some respects exercised wrongly. The words under "colour of office" refer to irregular as distinguished from illegal Acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. S.99 applies to cases where there is jurisdiction to do an act, but that jurisdiction has been in some respects exercised wrongly. The words under "colour of office" refer to irregular as distinguished from illegal Acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. In other words, the clause is not intended to cure the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle such an irregularity for example as initialling warrant instead of signing it, the mode of delivering possession or the like, it would be covered by this clause. The protection in favour of public servants rest partly on the probability that their acts will be lawful in which case resistance must necessarily be unlawful; partly on the theory that resistance is unnecessary since the law will set right what has been wrongly done in its name; and lastly on the ground that it is good for society that public servants should be protected in the execution of their duty when they are in error. 13. I shall now refer to some of the decisions bearing on this question. One of the earliest cases to which reference has been made is Queen Empress v. Janki Prasad (ILR 8 All. 293). In that case a warrant was issued for the arrest of a debtor under the provisions of S.251 of the Civil Procedure Code. It was initialled by the Munsarim of the court, sealed with the seal of the court, and delivered to the proper officer for execution. The debtor forcibly resisted the officer. The warrant fulfilled the requirements except in one particular, namely, that it was not signed by the Munsarim but only initialled by the Munsarim and the contention was that the warrant was bad and the officer could not legally execute it and consequently no offence under S.353 of the Penal Code had been committed. Old field J. stated that because the signature on the warrant is confined to the initials of the name it cannot be held that it was not the duty of the officer to execute the warrant. It was in all other respects in form and, therefore, it became the duty of the officer to execute it. Old field J. stated that because the signature on the warrant is confined to the initials of the name it cannot be held that it was not the duty of the officer to execute the warrant. It was in all other respects in form and, therefore, it became the duty of the officer to execute it. He would, in fact, have failed in not executing it and any resistance to him will be resistance to a public servant in the execution of his duty as such. The officer was acting in good faith under colour of his office and under S.99 I. P. C. there is no right of private defence against an act done or attempted to be done by a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law. 14. In the case in Emperor v. Sankar Dayal (71 IC 62) Kanhaiya Lal, of the Judicial Commissioner's court Oudh held that a warrant issued under the Public Gambling Act, for search and arrest which does not contain the name of the person to whom it is issued, and to whom authority to make the search and arrest are given, is irregular. 15. In Mohamed Ismail v. Emperor (AIR 1936 Rangoon 119) the arrest was held not justified under the Code, but still it was held that the accused could be convicted under S.323 I. P. C., for causing hurt to the police officer executing the warrant, as under S.99 I. P. C., there is no right of private defence in a case where a police officer was acting bona fide under colour of his office. 16. In State v. Yemanappa Limbaji Pandhare (ILR 1956 Bom. 661) the District Superintendent of police issued a notice calling upon the accused, a dismissed constable, to vacate within seven days the premises occupied by him in the police quarters. When the Sub Inspector of police went to the premises to execute the order of the D. S. P. the accused offered resistance and caused hurt to the Sub Inspector. 661) the District Superintendent of police issued a notice calling upon the accused, a dismissed constable, to vacate within seven days the premises occupied by him in the police quarters. When the Sub Inspector of police went to the premises to execute the order of the D. S. P. the accused offered resistance and caused hurt to the Sub Inspector. On being prosecuted under S.332 of the Indian Penal Code, a contention was raised that the D. S. P. had no authority to issue an order of forcible eviction under S.31(2) of the Bombay Police Act, that when the Police Sub Inspector went to eviction him forcibly he was not acting in the discharge of his duty and that in resisting him the accused had not committed any offence. It has held that even though there was no notification by the State Government authorising the D. S. P, to exercise powers under S.31(2) of the Act and therefore the order passed by him was without authority, the order was not ex facie bad or defective, the police Sub Inspector was in executing the order acting in the discharge of his duty as a public servant and the mere fact that the order was defective for want of authorisation did not justify the accused in resisting its enforcement and that, in any case, as the police officer was acting in good faith under colour of his office the accused had no right of private defence. 17. The same view has been taken by the Madras High Court in In re Ganapathia Pillai (AIR 1953 Madras 936). There an Assistant Inspector of Labour made a surprise inspection of a shop and the owner of the shop pushed him and snatched the register from his hand. Even though it was held that the search was irregular the question was whether S.99 applied to the case. Ramaswami J. explained the import of the words "colour of office". His Lordship said: "They refer to irregular as distinguished from illegal acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. In short, the act has been done wrongly though it might have been done rightly. Ramaswami J. explained the import of the words "colour of office". His Lordship said: "They refer to irregular as distinguished from illegal acts. They show that the act was within the jurisdiction but that the jurisdiction had been exercised irregularly or on insufficient grounds. In short, the act has been done wrongly though it might have been done rightly. In other words, the clause is not intended to cure the want of jurisdiction but only an erroneous exercise of it and that when the error affects the procedure rather than the principle such an irregularity for example as initialling a warrant instead of signing it, the mode of delivering possession or the like - it would be covered by this clause." Reference was made by the learned Judge to the decision in Queen Empress v. Tiruchittambala (21 Mad. 78) ; Queen Empress v. Poomalai (21 Mad. 296); Queen Empress v. Ramayya (19 Mad. 349); Bhawoo v. Mulji (12 Bom. 377); R. v. Janaki Prasad (8 All. 293); R. v. Bhailal (29 Cal. 417); Doraiswami Pillai v. Emperor (27 Mad. 52); Ghulam v. Emperor (AIR 1936 Lah. 851) and Muni Reddi In re (AIR 1948 Mad. 472). 18. Bearing these principles in mind it is idle to contend that what the public servant P. W. 2 had done was not in good faith and under colour of his office. There is convincing evidence in this case that the Sub Inspector of police to whom the warrant was issued endorsed it to P. W. 2 noting the number of the constable in the warrant. P. W. 2 was in uniform. It has come out in evidence that P. W. 1 had already told the first accused that a warrant had been issued by the court for his apprehension and that he should appear in court and not create trouble for the sureties. P. W. 13 has deposed that when the police officers were sighted the first accused was told by the second accused that police men were coming to arrest and the first accused said 'let them come, we will see'. P. W. 2 on meeting the first accused appraised him of the contents of the warrant thereby satisfying the provisions of S.80 of the Criminal Procedure Code and caught his hand thereby showing that he was under arrest. P. W. 2 on meeting the first accused appraised him of the contents of the warrant thereby satisfying the provisions of S.80 of the Criminal Procedure Code and caught his hand thereby showing that he was under arrest. Therefore, it can safely be held that P. W. 2 was acting in good faith under colour of his office and the first accused had, therefore, no right of private defence as laid down in S.99 of the Penal Code. It must also be remembered that when the first accused assaulted P. W. 2 and stabbed R. W. 1, deceased Kesavan Nair went there to pacify and prevent the accused from doing further harm. 19. Learned counsel for the defence brought to our notice the decision in T. Subba Rao v. State of Andhra Pradesh ( AIR 1960 AP 110 ). That was a case where a Commercial Tax Inspector forcibly removed account books from the accused who was a clerk of a mill against the notification of the Government. It was held that the action of the Inspector was ultra vires their powers and illegal and therefore the accused had a right in law to resist such illegal actions in exercise of their general right of private defence, and that if in the course of such exercise of the right of private defence, the officer was pushed it would not amount to an offence as the force was used in exercise of the right of private defence open to the accused in law. 20. Likewise Ramasaran Singh v. State of Bihar (AIR 1960 Patna 232) was a case where the Magistrate had no jurisdiction to issue a distraint warrant. It was held that the warrant must be treated as a nullity and therefore the petitioner was justified in doing what he did and the conviction cannot stand. In the case in Narsayya Lachmayya v. The State (AIR 1953 Nag. 292) it was held that the failure of the Magistrate to pass an order under S.112 before he issued a warrant under S.114 Cr. P. C., is not a mere irregularity, but constitutes an illegality. There was an express breach of a mandatory provision of law and the action of the Magistrate was considered as wholly illegal and without jurisdiction. The same was the case in Deoman Shamji Patil v. The State ( AIR 1959 Bom. P. C., is not a mere irregularity, but constitutes an illegality. There was an express breach of a mandatory provision of law and the action of the Magistrate was considered as wholly illegal and without jurisdiction. The same was the case in Deoman Shamji Patil v. The State ( AIR 1959 Bom. 284 ) where some police constables who had no legal authority to require the accused to submit to medical examination forcibly dragged him towards the dispensary. It was held that what they had done was wholly beyond their powers and the accused had the right of defending himself against the force sought to be illegally exercised against his person. Since the action of the police constables were altogether outside the scope of their powers, it could not be said that they acted with "due care and attention" and therefore in "good faith". All these cases are cases where there is a total lack of jurisdiction and therefore have no application to the facts of the present case. 21. On a careful consideration of all these circumstances we have no hesitation in holding that the conviction of the first accused is well justified. His conviction under S.224 I. P. C., has to be set aside. As far as the second accused is concerned he has been convicted only under S.225 I. P. C. As we have held that the warrant is not strictly legal, his conviction under S.225 I. P. C., cannot be maintained. Even otherwise on the evidence we are not satisfied that offence under S.225 I. P. C. is made out against him. The overt acts now ascribed to him have not been mentioned in the earlier records. In the result, the conviction and sentence passed on the first accused under S.302, 353 and 324 I. P. C. are confirmed. His conviction and sentence under S.224 I. P. C. is set aside. The conviction and sentence of the second accused under S.225 I. P. C. are set aside and he is ordered to be acquitted.