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Judgment
Sinha, J.—This case raises an important point of the Interpretation of Section 59, Criminal P. C. The petitioners have filed this application for quashing a proceeding taken against them u/s 225, Penal Code, on the ground that the arrest itself of one Rewati Mohan Sen or Sen Gupta was illegal and, therefore, these petitioners had committed no offence, u/s 225, Penal Code.
The case, shortly put, is that, on 15-8-1952, one Sheo Prasad Kewani had seen Rewati Mohan committing rape upon a small child of about four years of age. Sheo Prasad Rewani arrested Rewati Mohan and he, along with others, was taking Rewati Mohan to the Police Station when some Bengalis arrived at the moment and took the accused and girl to the sons of one Anukul Babu. The petitioners are the sons of the said Anukul Babu. The petitioners chastised Rewati Mohan and, thereupon, Rewati Mohan v/ent away, and the matter, for the time being, looked closed. One Sitaram Mahto, however, informed the police on telephone about the occurrence.
The Inspector of Police and others arrived and enquired about the matter and Sheo Prasad Rewani, Rameshwar Rewani, Surja Rewani, Madhu-sudan Rewani and Ramtahal Rewani went in search of the accused, as directed by the police. In the course of the search, the accused was found entering the house of a Bengali gentleman and these people followed him there. Rewati Mohan fled from that place and ran to the house of a Deputy Magistrate and there he was caught hold of by those who were following him. In the meantime, the petitioners arrived in a jeep and stopped at the place and, after certain altercation, these petitioners are alleged to have got down from the. jeep and pulled away Rewati by hand and forcibly wanted to take him in the jeep. Just at that time, when alarm was being raised, the police arrived and the petitioners left in the jeep. The following statement occurs in the first information report :
"We told them (the petitioners) that we were told by the Inspector and the Sub-Inspector to arrest him (Rewati Mohan) as he had ravished a minor girl of our village. It was for this reason that we arrested him."
Mr. Baldeva Sahay, learned Counsel on behalf of the petitioners, has submitted that the arrest in the present case was illegal inasmuch as the provisions of Section 59, Criminal P. C., which alone justified arrest by a private person, had no application to this case. He concedes that the arrest of Rewati Mohan by the first informant Sheo Prasad in the first instance was a legal arrest. After Rewati Mohan was let off, though it may be at the instance of one or both of the petitioners, there was no authority in Sheo Prasad or any of his companions to arrest Rewati Mohan at the behest of the police. The relevant portion of Section 59(1), Criminal P. C., reads as follows :
"Any private person may arrest any person who in his view'' commits a non-bailable and cognizable offence,...... and, without unnecessary delay, shall make over any person so arrested to a police-officer, or in the absence of a police-officer, take such person or cause him to be taken in custody to the nearest police-station."
The important words have been underlined (here in '' '') by me. There is no dispute that the offence of rape is a non-bailable and cognizable offence. The only difficulty is as to the interpretation of the words underlined (here in '' ''). As I have said, the first arrest of Rewati Mohan is conceded to be a legal arrest. The question is whether, after the man was released from custody and he went away, the first informant and his companions were entitled, in law, to arrest Rewati Mohan. In this connection, Section 42, Criminal'' P. C., also need be read :
"Every person is bound to assist a Magistrate or police-officer reasonably demanding his aid, whether within or without the presidency-towns,
(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorized to arrest;
(b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property."
In the present case, admittedly the police-officers were not in the raiding party who had set out to search and arrest accused Rewati Mohan and, as the first information has clarified the position, the first informant and his companions were directed by the Police Inspector and the Police Sub-Inspector to arrest the accused. The learned Additional District Magistrate, Mr. D. P. Sinha, who heard the application in revision for reference to this Court, has held that the police-officers had no legal authority to give directions to private individuals to arrest the accused who was alleged to have committed a non-bailable and conizable offence and further that the arrest made by the local police was not a legal arrest u/s 42, Criminal P. C. I agree with the interpretation put upon Section 42 by the learned Additional District Magistrate.
He has, however, held that the arrest by these persons at the second stage was legal because the powers of these members of the public who could arrest the accused u/s 59 still continued and those powers could still be exercised at the second stage, namely, at the time when the accused was arrested for the second time. The language employed in the section, in my opinion, appears to be plain and the only meaning that can be attached to the expression used is that a private person can arrest any person who in his presence commits a non-bailable and cognizable offence. At the time of the second arrest, the accused committed no non-bailable and cognizable offence; he had committed, according to the allegations of the prosecution, a non-bailable and cognizable offence at the time of his first arrest. If at the time of the first arrest the accused tried to escape and ran away, the private persons were fully within their rights u/s 59 to arrest the accused by running after him and pursuing him.
Even in the present case, if the man had been arrested, as he was, and although he had been forcibly released from custody, when he was trying to leave the place, it would have been perfectly justifiable in law if the first informant or his companions had re-arrested him then and there or pursued him until he had been re-arrested. All that would be one transaction and, therefore, the re-arrest in that circumstance would have been perfectly legal. In the present case, however, when the accused, for one reason or the other, was allowed to go his own way after being released from custody, the matter had come to an end and the transaction was complete. The second arrest was not made u/s 59, but was made in pursuance of the direction of the police to these, private individuals, the first informant and his companions; and the quotation from the first information given above leaves no room for doubt that the second arrest was made as these private individuals had been so directed by the polic''e.
As I look at the facts of this case, in my opinion, even upon the prosecution case itself, the provisions of Section 59 did not come into play. The provisions mentioned in Section 59 are extraordinary in the sense that these provisions enable a private person to arrest a person in certain circumstances and, therefore, it must be construed in a manner so as not to enlarge the power of private individuals to arrest a person. These provisions are also very useful in the sense that they lead to immediate detection of a crime and apprehension of the offender. The language of the section also shows that as soon as an arrest is made u/s 59 by a private individual, the accused must, without unnecessary delay, be made over to a police-officer, or, in his absence, should be taken to the nearest police station. The learned Additional District Magistrate has said in one part of his judgment that
"if it be held that this power is to be exercised only so long the accused person continues to be in view it will mean that an offender who can run fast can never legally be arrested by an eye witness if he is found out by him at a different time and place."
In my opinion, the apprehension of the learned Additional District Magistrate appears to be unfounded. If any person commits a non-bailable and cognizable offence in the view of a private individual, that private individual is entitled to arrest him and certainly, if the accused tries to escape, the private individual must have the power to pursue him until the man is arrested; or even if the man was arrested and he rescued himself from the custody of the individual, that individual, again, would be entitled to produce and re-arrest the accused who has released himself from the custody.
If somebody rescues the accused from the custody of the private individual, the private individual, again, has the right to follow and re-arrest him because all this will be a part of the same transaction. "Same transaction" must mean, in the language of a learned Judge of this court, "continuity of purpose and continuity of action". If the facts establish that the second arrest was made as a part of the same transaction, the second arrest would be a legal arrest u/s 59. In the present case, however, in my judgment, the first transaction beginning with the arrest of Rewati Mohan came to an end when he was let off from custody and no effort was made then to pursue and re-arrest him. The second arrest, therefore, was not a part of the same transaction; as clearly admitted by the first informant, it was made at the direction of the Police-Inspector and the Sub-Inspector.
On behalf of the State, reliance was placed upon certain authorities, and I would like now to consider them. In -- Sheo Balak Dusadh Vs. Emperor, it was held that, when a man is found committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one single transaction, and any person who either sees him committing the offence or finds him running away immediately after the commission of the offence would be entitled to arrest him u/s 59, Criminal P. C., and that the offender has no right of private defence against any attempt made by any such person to arrest him. This judgment is in consonance with the view I have taken, namely, that if the man arrested u/s 59 tries to escape the whole should be treated as one single transaction. In that case, the power u/s 59 can be exercised in pursuing the offender or in re-arresting him.
In -- Nazir Vs. Rex, the Full Bench upheld the view of law as laid down in Sheo Balak Dusadh Vs. Emperor, . I am not concerned in the present case with the, other matters decided in these two cases. In my judgment, therefore, the second arrest of Rewati Mohan by the first informant and his companions was not in accordance with the provisions laid down in Section 59 nor is their action in arresting Rewati Mohan covered by the provision of Section 42 of the Code or by any other provision of law. The arrest, therefore, must be held to be an illegal arrest; and if that be so, the prosecution of the petitioners u/s 225 Penal Code, must necessarily fee set aside. I would, therefore, quash the proceedings taken against the petitioners u/s 225, Penal Code, allow the application and make the rule absolute.
Imam, J.
I agree.