Use of criminal force against constables held an offence.

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-cognisable 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 under section 160, Indian 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. 1to 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 Procedure Code, 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 under section 224, Indian Penal Code, charged against them must also necessarily fail, the case is different with regard to the offence under section 332, Indian Penal Code after the escape of the respondents from custody, charged against them. He went on to say that though an offence under section 332, Indian Penal Code, might not stand, in the circumstances of this case, there was an undoubted offence under section 353, Indian 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 peltings after the escape. It was urged therefore that the offence would be only one under section 352. But I agree with the learned Public Prosecutor that constables are, under section 21, of the 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 under section 353, Indian 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 thoug