1. The six applicants have been fined Rs. 26 each under Section 147, Penal Code and Rs. 26 each under Section. 323, Penal Code, for rioting and voluntarily causing simple hurt to certain other persons. They have also been bound over to keep the peace under Section 106, Criminal P.C.
2. It appears that a case under Section 498, Penal Code, was proceeding between the husband of one Mst. Chandro and some person or persons who were connected with the applicants. A bailable warrant was issued for the arrest of this Mst. Chandro and was delivered to a head constable and three constables. These officers proceeded to the village where the woman was alleged to be living, i.e., the village of Barhauna. The complainant in the 498 case and friends or relations of his from the village of Barla joined the police party. All these persons reached Barla early in the morning and proceeded to arrest Mt. Chandro with the result that they were attacked and some of them were injured.
3. The defence was that the police party had entered the house, where Mt. Chandro was, in the early hours of the morning before day break and that they had been beaten because they were mistaken for dacoits. The Courts below very rightly disbelieved this story. They have found how ever that the fact that the warrant was a bailable warrant was never conveyed to Mst. Chandro or to her friends. The learned Magistrate has given quite good reasons for thinking that this was so and the learned Sessions Judge has agreed with him. The result of this finding was that the Courts below came to the conclusion that the arrest of the woman was strictly not a legal arrest; but they found further that the applicants had exceeded such right of private defence as they may have had. The learned Sessions Judge was also inclined to apply the provisions of Section 99, Penal Code, and to hold that no right of private defence existed. It is clear from the reasons given by the Magistrate for thinking that the fact that the warrant was bailable was not communicated and that the failure to give the information was deliberate. The Magistrate was influenced in part by the fact that the complainant in the case under Section 498, Penal Code, and his friends were particularly desirous of obtaining possession of the woman.
4. I think that the Courts below both considered that the police and those with them had deliberately refused to give the woman an opportunity of giving bail because they wished that she should be actually handed over to them. If this was so, and I think there is good reason for thinking that it was so, there can be no doubt that the police officers were not acting in good faith. The provisions of Section 99, Penal Code were therefore not applicable. There can be no doubt that in the strictly legal sense the arrest was an illegal one and the woman was the victim of an offence of illegal confinement. The applicants had every right to protect her from the commission of this offence.
5. The only question was whether they exceeded their right of private defence. Neither of the Courts below have given any real reason for thinking that the right of the private defence had been exceeded. The learned Sessions Judge has said that the police party was savagely attacked but I can see no justification for the use of this adverb. The learned Magistrate seems to have thought that the applicants exceeded their right of private defence because they caused injuries to four members of the party of the complainant in the case under Section 498, Penal Code, while the woman was being held not by them, but by the head constable. I cannot agree with this conclusion. It is obvious that the whole of the party were preventing the release of the woman and there is nothing whatsoever to show that she would have been released if the persons injured had not been attacked. It is obvious that there was a free fight with lathis. Two of the applicants, Nawal and Ramji Lal, were injured in the same way as the persons on the other side. It is certainly true that they had between them fewer injuries than the others, but the difference is not great. The nature of the injuries was the same, that is, they were the injuries caused in a lathi fight, contusions and contused wounds on the head and other parts of the body. It does not appear that the applicants continued to beat the other side after the woman had been released. Once it is held that the applicants had a right of private defence in this matter the conclusion must be legally that they were not guilty of any offence.
6. I set aside the convictions, the sentences and the order under Section 106, Criminal P.C. If the fines or any part of them have been paid the money shall be refunded. If any bond has been executed under the provisions of Section 106, Criminal P.C. it shall be cancelled.