1. We think that further inquiry must be ordered in this case, as the accused made certain admissions, in his deposition before the Second Class Magistrate in the case in which he prosecuted one Dhanjibhai, the effect of which has not been considered by the Magistrate in dealing with the present complaint. That deposition was apparently given under circumstances which would permit its admission as evidence against the accused Queen Empress v. Ganu Sonba I.L.R. 12 Bom. 440 ; and in it the accused said that he told his peon to bring the present complainant Dhania to his office in his tent. He further said that the peon brought Dhania, and that Dhania was with the peon all night, and that he detained Dhania to prevent his being induced by Dhanjibhai to alter his statement. Moreover, he said that, to the best of his knowledge, the toddy seller Bajanji came and asked him to release Dhania, and offered to stand security, and that he would not release him on bail. The deposition containing these statements was accessible to the Magistrate, and the statements in it bearing on the complaint against the accused ought to have been taken into consideration. We express no opinion on the facts of the case. But we are distinctly of opinion that the enquiry has been incomplete, and that the discharge was, therefore, improper. The Sessions Judge thought that the complainant had been detained by the accused, but that the accused had not committed an offence, as he had acted apparently without malice and to the best of his judgment. But the offence of wrongful confinement is complete when a person is wrongfully restrained in such a manner as to be prevented from proceeding beyond certain circumscribing limits (Section 340, I.P.C.), and a person is wrongfully restrained if he is voluntarily obstructed so as to be prevented from proceeding in any direction in which he has a right to proceed (339th Section of the I.P.C.) A person may, therefore, be guilty of wrongful confinement though he acts without malice. Of course it may always be a question whether such person is protected by Section 79 of the Indian Penal Code; but with any such question which might possibly arise in the present case we are not at present concerned.
2. We direct the District Magistrate, under Section 437 of the Code of Criminal Procedure, by himself, or by any of the Magistrates subordinate to him, to make further inquiry into the case of the accused.
3. This case being of importance in that personal liberty is concerned, I would add to what my learned brother has said that I differ from the Sessions Judge's view of the law. I concur in Parankusam Narasaya Pantulu V. Captain R.A.C. Stuart 2 Mad. H.C. R 396 which was decided after consideration of Bird v. Jones 7 Q.B. 742 which distinguishes a restraint from going in a certain direction from an imprisonment. 'I am of opinion,' says Coleridge, J., Ibid at p. 744. 'that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention. A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go withersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.
4. 'In Com. Dig. 'Imprisonment' (G) it is said: 'Every restraint of the liberty of a free man will be an imprisonment.' For this the authorities cited are two Inst. 482; Hobert & Stroud's Case Cro. Car. 209. But when these are referred to, it will be seen that nothing was intended at all inconsistent with what I have ventured to lay down above. In both books, the object was to point out that a prison was not necessarily what is commonly so called, a place locally defined and appointed for the reception of prisoners. Lord Coke is commenting on the Statute of: Westminster 2nd, (1 Stat. 13 Ed. 1, c. 48,) 'in prisona', and says, 'every restraint of the liberty of a freeman is an imprisonment, although he be not within the walls of any common prison.' The passage in Cro. Car. 209 (Hobert and Stroud's Case), is from a curious case of an information against Sir Miles Hobert and Mr. Stroud for escaping out of the Gate House prison', to which they had been committed by the King. The question was, whether, under the circumstances, they had ever' been there imprisoned. Owing to the sickness in London, and through the favour of the keeper, these gentlemen had not, except on one occasion, ever been within the walls of the Gate House: the occasion is somewhat singularly expressed in the decision of the Court, which was 'that their voluntary retirement to the close stool' in the Gate House 'made them to be prisoners.' The resolution, however, in question is this, 'that the prison of the King's Bench is not any local prison confined only to one place, and that every place where any person is restrained of his liberty is a prison; as if one take sanctuary and depart thence, he shall be said to break prison.' Per Williams, J. (Ibid., p. 748), 'And it is that entire restraint upon the will which, I apprehend, constitutes the imprisonment.'
5. If the Sessions Judge had applied that view of the law of the case to the facts he found, lie would, it may be supposed, have passed an order under Section 437 of the Code of Criminal Procedure directing further inquiry. In that further inquiry the accused may meet the case for the prosecution by producing rebutting evidence. See Hari Dass v. Saritulla I.L.R. Cal. 608. The Magistrate may also take evidence which he has omitted to take, as in this case.