Public Prosecutor vs Munuswamy and Others

Panchapakesa Ayyar, J.—This is an appeal by the Madras Government against the acquittal of the three respondents by the Sub-Divisional

Magistrate, Tiruvallur, and involves an important question of law, namely whether police constables can be subjected to criminal force by persons

arrested by them for a non cognizable offence after their escape from custody and in revenge. The facts are briefly these. At about 7 P. M. on 21st

June 1948, the three respondents and the mother of respondents 2 and 3 (accused 4 in the lower Court who was discharged, and is not the

subject of this appeal) were quarrelling with each other and abusing each other in a public place, and were in fact committing an affray falling u/s

160, Penal Code. P. Ws. 1 and 2, two constables of Gummidipundi station, within whose limits the affray was taking place, went to the spot with a

head constable, P. W. 3, and tried to stop the affray in progress, and warned the respondents not to quarrel. The story of P. Ws. 1 to 3 that the

Sub-Inspector of Police sent them to stop the quarrel is not proved. The respondents paid no heed whatever to the warning of P. Ws. 1 to 3 but

continued quarrelling. Thereupon, P. Ws. 1 to 3 arrested the three respondents and the discharged accused. The respondents escaped from

custody and also pelted stones on P. Ws. 1 to 3 after the escape.

The learned Public Prosecutor urges that even if the arrest of the respondents was illegal, as an affray is a non-cognisable offence, and even if

Section 57 , Criminal P. C. will not apply to this case, and the respondents were, therefore, justified in wriggling out of the constables'' grip and

running away after inflicting some slight injuries in the process of escape, and the offence u/s 224, Penal Code, charged against them must also

necessarily fail, the case is different with regard to the offence u/s 332, Penal Code, after the escape of the respondents from custody, charged

against them. He went on to say that though an offence u/s 332, Penal Code might not stand, in the circumstances of this case, there was an

undoubted offence u/s 353, Penal Code, clearly made out by the evidence on record, since the respondents not only caused some injuries to the

constables in the course of escaping from their custody, but also threw some stones at them in revenge after their escape and caused some

contusions and other slight injuries on P. Ws. 1 to 3. I agree.

While, under our law, a person is entitled to inflict the necessary minimum injuries, even on constables and other public officers illegally arresting

him, in order to release himself from such unlawful custody, he is not given any right to beat them or pelt stones at them or use criminal force

towards them in revenge after escaping from their custody. These constables are alleged, by the learned counsel for the respondents, not to have

been on duty, at the time when they interfered in this quarrel and arrested the respondents and got the stone pelting after the escape. It was urged

therefore that the offence would be only one u/s 352. But I agree with the learned Public Prosecutor that constables are, u/s 21 , Madras District

Police Act, always on duty when interfering in breaches of the public peace like this, within their station limits and jurisdiction whether in mufti or in

uniform, as police officers of the Indian Union discharging the functions of such officers named in various Acts and rules. Of course, if a constable

is having a private quarrel with another man and is beaten in the course of that quarrel that will not be use of criminal force in the course of his duty,

falling u/s 353, Penal Code. So too if a constable is trying to commit an offence like theft and is caused hurt during a scuffle to prevent it. But a

constable interfering in an affray in order to prevent it, as here, is only discharging his duty as a public servant though he may not be entitled to

arrest the persons committing an affray as it is a non cognizable offence. If, as a result of his warning to persons committing the affray to desist from

committing the affray, or even as a result of his taking them illegally into his custody for persisting in the affray he is subjected to criminal force, as

here, by pelting stones, after the persons have escaped from his custody and there is no need to inflict any criminal force on him for the purposes of

such escape, an offence u/s 353, Penal Code will be made out. To hold otherwise will be against public interests and will subject constables going

homewards along the road after their duty at the station is over and trying, in public interests, to stop affrays in progress to assaults of this kind and

without any effective remedy.

I therefore set aside the acquittal of the three respondents and convict them u/s 353, Penal Code alone confirming their acquittal of all other

offences. The learned Public Prosecutor says that a small fine will do. I sentence all the respondents to pay a fine of Rs. 5 each, or, in default, to

one week''s simple imprisonment each, as the circumstances of the case and the ends of justice do not demand a heavier sentence. Time till 3 P.

M. on 15th December 1949 to pay the fine, Steps in default only thereafter.