Govinda Menon, J.
1. The learned Public Prosecutor, at the very outset, conceded that the conviction and sentence of the second accused cannot be sustained on the evidence in the case, for, on the finding that there was no arrest effected, there can be no overt act attributable to him which would justify a conviction under Section 353 of the Indian Penal Code. His conviction and sentence are therefore set aside and he is acquitted.
2. With regard to the first accused, it is contended on his behalf by Mr. T.M. Venugopala Mudaliar that in view of the finding by the lower appellate Court to the effect that the second accused was not actually arrested, the proper manner of looking at the case is to find out whether the head constable was justified in attempting to arrest. It is common ground, that the Sub-Inspector of Police had not given an order in writing in accordance with the provisions of Section 56(1) of the Criminal Procedure Code to P.W. 1 to arrest the second accused. Though the fact that P.W. 1 was deputed for that purpose was entered in the general diary, there was no evidence of it, as the general diary had not been produced and hence any oral evidence to prove the entry will be inadmissible. Therefore even if the Sub-Inspector orally directed P.W. 1 to go and arrest the second accused, since such a direction is not contemplated by the provisions of the Criminal Procedure Code and is in violation of the express provisions of Section 56(1), it should be deemed that the action of P.W. 1 in trying to effect the arrest was illegal.
3. The decision in Doraiswami Pillai v. Emperor : (1903)13MLJ285 lays down that where a police constable, at midnight, entered upon the premises of a person who was regarded by the police as a suspicious character, and knocked at the door to ascertain if he was there, whereupon he came out, abused and pushed the constable and lifted a stick as if he were about to hit the constable with it, an offence under Section 353 of the Indian Penal Code, of using criminal force to deter a public servant in the execution of his duty, has not been committed. Bashyam Aiyangar, J., was of the view that in those circumstances the accused, would, no doubt, be guilty of assault or of using criminal force, unless his act could be regarded as done in the exercise of the right of private defence. On the facts of that case the learned Judge concluded that the constable in entering upon the accused's dwelling house and knocking at his door at midnight was technically guilty of house trespass and under those circumstances the accused was justified under Section 104 of the Indian Penal Code in voluntarily causing the slight harm which he inflicted upon the constable. What follows from this decision is that if the action of the public servant was not valid in law, using criminal force against him would not amount to an offence under Section 353, Indian Penal Code. Though this decision was not expressly referred to by Dhavle, J., of the Patna High Court in Gulabi Mahto v: Emperor1 on circumstances resembling those in Doraiswami Pillai v. Emperor : (1903)13MLJ285 and the present case that learned Judge was inclined to hold that an offence under Section 353, Indian Penal Code, was not committed. What happened there was that, a Police Sub-Inspector asked the constable to bring certain persons with some papers to the police station, but did not give a direction in writing to that effect. On that direction when the constable tried to take one of the persons by force to the police station, such person resented it and followed the resentment by throwing brickbats. The Patna High Court was of opinion that the person could not be convicted under Section 353, Indian Penal Code. It was argued in that case that even if the constables did not have a warrant, the offence suspected against the accused person was a cognizable one for which a police officer can arrest without a warrant. The learned Judge in answer to that argument observed that the constable in that case did not pretend on his own account to arrest the person just as in the present case also.
4. The learned Public Prosecutor put forward the same contention as had been advanced in the Patna case, Gulabi Mahto v. Emperor (1940) 41 Cri.L.J. 742 also, viz., that the offence with which the second accused was suspected being a cognizable one, the police officer can arrest without a warrant and that such being the case, even if there was no written authority as contemplated by Section 56(1) of the Criminal Procedure Code, P.W. 1 could, on his own accord, as a police officer arrest a person suspected of a cognizable offence without a warrant. The short answer to this argument, is, as Dhavle, J., remarks, that P.W. 1 did not purport to act on his own account.
5. The only other question that remains is whether in the circumstances of the case, the first accused can be held guilty of an offence under Section 352, Indian Penal Code. On this aspect of the case, the evidence is meagre. If the finding of the lower Courts is accepted, as I have already done, that P.W. 1 had no autho-rity to effect the arrest since there was no order in writing under Section 56(1) of the Criminal Procedure Code and if P.W. 1 did not purport to act on his own accord because there is nothing to show that the elements necessary to justify the action under Section 54, Criminal Procedure Code, are present, the act of P.W. 1 was not that of public servant but an ordinary individual. It cannot be said that an ordinary individual can attempt to arrest a person in circumstances like the present and if a relation of the person to be arrested tries to prevent the arrest by using force or threatening to use force, such an act cannot come within the ambit of Section 352, Indian Penal Code. I would therefore hold that no offence has been committed and the first petitioner (first accused) is also entitled to an acquittal. He is accordingly acquitted and set at liberty.
6. The bail bonds are cancelled.