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1938 Supreme(Mad) 238
IN THE HIGH COURT OF MADRAS
Lakshmana Rao, J.
The Public Prosecutor
Versus
Amirtham Servai and Ors.
Decided On : 25.08.1938
The court emphasized that there is no right of private defence against an act of a public servant and upheld the legality of the arrest.
Headnote:
Public Prosecutor - Arrest and Resisting Arrest - The court held that the arrest of the accused was legal and there was no right of private defence against such an act of a public servant. The accused were convicted under relevant sections of the Indian Penal Code.
Fact of the Case:
The police officers found the accused gambling and attempted to arrest them. The accused resisted, leading to a scuffle and subsequent arrest.
Finding of the Court:
The court found the accused guilty of resisting arrest and convicted them under relevant sections of the Indian Penal Code. The court set aside the order of acquittal and imposed fines on the accused.
Issues: The main issue was whether the arrest of the accused was legal and if the accused had the right of private defence against the act of the public servant.
Ratio Decidendi: The court held that the arrest was legal and there was no right of private defence against such an act of a public servant. The accused were convicted under relevant sections of the Indian Penal Code.
Final Decision: The accused were convicted under relevant sections of the Indian Penal Code and sentenced to pay a fine of Rs. 25 each.
Lakshmana Rao, J.
1. This is an appeal by the Public Prosecutor against an appellate order of acquittal and the undisputed facts are that on their way to investigate a case of house-breaking and theft, P.Ws. 1 and 11, the Sub-Inspector and Head Constable of Sambatti found accused 1 to 6 gambling with dice and money in the Silvathinnai an open platform with roof used by the villagers like a village chavadi at Karisalpatti. Accused 7 to 10 were watching the game and the police officers hurried to the spot. The accused got down the Silvathinnai and P.W. 1 asked accused 1 to 6 to stop. P.W. 11 seized the dice and some cash from the Silvathinnai and accused 1 and 2 were asked their names. They refused to give their names and P.Ws. 1 and 11 caught them saying that they had been arrested. Accused 1 assaulted P.W. 1 and he struck accused 1 on the head with a lathi in self-defence. The other accused then attempted to rescue accused 1 and 2 by use of criminal force but P. Ws. 1 and 11 held them firm, and P.Ws. 2, 3, 4, 5, 7, the villagers intervened. Accused 1 and 2 were then taken to the school building about fifty feet away and accused 3 to 10 assembled near the school. The Sub-Inspector apprehended a breach of the peace and information was sent to the Village Munsif and Police Station. The Village Munsif and four constables arrived soon after and accused 3 to 10 ran away.
2. Accused 1 and 2 were arrested by the Police Officers in good faith under colour of their office and it is immaterial whether the Silvathinnai is a public place and the arrest was strictly legal. There is no right of private defence against such an act of a public servant, and accused 3 to 10 who attempted to rescue accused 1 and 2 by use of criminal force will unquestionably be guilty under Section 147 of the Indian Penal Code. Accused 1 and 2 will be guilty under Section 352 of the Indian Penal Code and the acquittal of the accused on the ground that the arrest was not legal is unsustainable. The order of acquittal is therefore set aside and the accused are convicted, accused 1 and 2 under Section 352 of the Indian Penal Code and accused 3 to 10 under Section 147 of the Indian Penal Code.
3. As regards sentence the occurrence was not premeditated and it is unnecessary to send the accused to prison at this distance of time. The accused are therefore sentenced to pay a fine of Rs. 25 each and in default to rigorous imprisonment for one month.
