1. This Criminal Revision Petition, raises an interesting question of law. The petitioner committed an offence under Section 302, I.P.C. He absconded and returned to his village 15 days after the commission of the offence. When he was lying inside the house, P.W. 2 who happened to be present at the time of the commission of the offence and P.W. 1 and others entered the house and sought to arrest the accused and he got up from the cot and stabbed P.W. 1.
The point that arises for determination is whether P.Ws. 1 and 2 were entitled to enter the house and arrest the accused. That depends upon the true construction of the terms of Section 59, Cr. P.C. which runs as follows:
59 (1) Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police officer or, in the absence of a police-officer, take such person or cause him to be taken in custody to the nearest police-station.
x x x x
I have no doubt that P.W. 1 who was not present at the time when the offence was committed, was entitled to assist P.W.2, if, in law, the latter was entitled to arrest. The person who was present at the time of the commission of the offence is entitled to arrest under Section 59. If he is overpowered or requires the assistance of other persons the third parties are entitled to assist him. I do not therefore agree with the contention of Mr. Sayee that P.W. 1 was not entitled to assist P.W. 2 in arresting the accused.
2. The main question that arises for consideration is really whether P.W. 2 who actually saw the accused commit the offence punishable under Section 302 could arrest the accused 15 days afterwards. Sub-section (1) clearly sets out that any private person may arrest any person who in his view commits a non-bailable and cognizable offence. The Sub-section (1) does not say that if a non-bailable and cognisable offence was committed long ago, a person who actually was present at that time could arrest him whenever he liked i.e., long after the commission of the offence.
The expression actually used by the Legislature is 'commits' and not 'had committed'. This view of mine is supported by the passages in Halsbury's Laws of England, Vol. 9 at pages 86 and 95. At page 86, the law is set out as follows:
A private person may also without a warrant arrest any one who in his presence commits a breach of peace, when the breach is still continuing, or, if it is not still continuing, when there is reasonable ground for apprehending a renewal of the breach or when the offender escapes immediately after committing the breach and is taken on fresh pursuit, which commenced immediately and is continued without a break.
The words 'continued without a break' are significant. Similarly at page 05, the following passage occurs:
Where power is conferred by statute to arrest a person found or seen committing an offence or doing some specified act, the arrest must, in most cases, be made while the offence was actually being committed or the act is being done, or on fresh pursuit.
It is pointed out in the same paragraph that there are certain statutes which authorise the making of the arrest after the offence has been committed in express words. As pointed out already, the language of the Section leads to the only conclusion that a private person might arrest when a person commits a non-bailable and cognisable offence in his view or in his presence. The same view was taken by the Allahabad High Court in 'Sheo Balak v. Emperor' AIR 1948 All 103 (A).
I follow that decision. I agree that when a man is found committing a non-bailable and cognisable offence and then tries to escape, the Whole should be treated as one transaction and any person who either sees him committing the offence or finds him running away immediately after the commission of the offence would be entitled to arrest him under Section 59. Cr. P.C. The view of the Allahabad High Court in AIR 1948 All 103 (A) was confirmed by a Full Bench of the Allahabad High Court in 'Nazir v. Res' : AIR1951All3 .
3. In the above view, the Revision Petition has to be allowed and the conviction and sentence passed by the Courts below have to be set aside.