JUDGMENT

1. This is an application by Phudki who has been convicted by one of the learned Additional Sessions Judges of Meerut under S.186, Penal Code and sentenced to undergo rigorous imprisonment for a period of three months.

2. The facts giving rise to this criminal revision briefly stated were these: On the 7th of April, 1949, SubInspector Himmat Singh of police station Garhmukteshwar started an investigation in regard to a dacoity case. He decided to arrest the applicant that night, and in order to give effect to that decisions of his, he asked his second officer Richpal Singh to go down with two constables to the house of Phudki and to arrest him. When S.O. Richpal Singh and the constables reached the house of Phudki, Phudki, somehow, got scent of their arrival and actually opened a back door and ran for liberty. The police officer and the two constables chased him and while so chasing him, the police constable fired a pistol shot at Phudki, Phudki shouted for help saying that he was being killed. Thereupon several villagers turned up and they assaulted the police officer and the two constables. In the meanwhile, Himmat Singh, the SubInspector, also arrived on the scene and there was some sort of a fight between the police and the villagers and some villagers were injured while the two constables sustained some minor injuries.

3. Fifteen persons were put up for trial under S.332, I.P.C., including the applicant. They were all convicted by the Magistrate under S.332 and awarded a sentence of two years R.I. and a fine of Rs.100/ each, or in default of payment of fine to undergo a further period of six months R.I.

4. On appeal, the learned Judge came to the conclusion that the evidence against the fourteen out of the fifteen accused was thoroughly insufficient to warrant their conviction under S.332, I.P.C. The view that the learned Judge took was that it could not be said with certainty, on the evidence, that these men took part in the assault

on the police that particular night. The learned Judge actually found that on the evidence it could not be said in regard to Phudki also that he took any part in assaulting anybody or in any manner showing force in making his escape as at that stage there was no question of any escape for Phudki, inasmuch as, Phudki was not in the custody of the police for the police had not caught Phudki before the fight started with the villagers. On the aforementioned findings, the learned Judge acquitted fourteen of the appellants before him but chose to convict Phudki under S.186, I.P.C.

5. Section 186, I.P.C. is in these words:

"Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."

6. Before this section can be made applicable, the prosecution has to prove that there has been voluntary obstruction of a public servant in the discharge of his public functions. In this case, on the findings it cannot be said that there was any voluntary obstruction by Phudki, indeed the learned Judge found that Phudki had not been guilty of any violence or even any show of violence against the police party. All that has been found against him was that he ran away from arrest, or that he did not actually submit to being arrested.

7. The question that arises is whether such conduct can amount to voluntarily obstructing a public servant who wanted to arrest Phudki in the discharge of his public functions. In my judgment it cannot be so said for the word obstruction connotes some overt act in the nature of violence or show of violence. It cannot be said that a man obstructed another if that man runs away from the other.

8. In a very old Full Bench decision of the Bombay High Court of the year 1865, a Bench of three Judges held that escaping from lawful custody is not obstructing a public servant in the discharge of his pub