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Kartar Singh And Others v. State .
Structured Summary of the Opinion (Bishan Narain, J.)
Factual and Procedural Background
The three appellants were tried for multiple offences arising from an incident on the night between 12 and 13 January 1954 at the house (described as a "haveli") of Kartar Singh (P.W. 14). The charges included criminal trespass under Section 452, I.P.C., alleged murder under Section 302/34, I.P.C., and offences for causing hurt under Sections 323/34 and 324/34, I.P.C. The Additional Sessions Judge, Amritsar, convicted the accused under Section 452, I.P.C. and Section 323/34, I.P.C., sentencing them to two years' rigorous imprisonment on the former and four months' rigorous imprisonment on the latter; both sentences were ordered to run concurrently. The trial court acquitted the accused of the charges under Sections 302/34 and 324/34, I.P.C. The appellants appealed their convictions and sentences (Criminal Appeal No. 622 of 1954), while the State appealed against the trial court's acquittals (Criminal Appeal No. 81 of 1955). Both appeals were heard together.
The prosecution's narrative was that the appellants entered Kartar Singh's premises at about 11 p.m., were seen standing near tethered cattle, an alarm was raised, shots were fired by Darshan Singh, and physical attacks followed — including a blow to Jogindar Singh inside the courtyard and a subsequent pursuit by a large armed party which resulted in injuries and the killing of Darshan Singh. The appellants denied guilt, alleging false implication due to enmity, and they did not lead evidence in their defence.
Legal Issues Presented
- Whether the courtyard of Kartar Singh's haveli amounted to a "building" for the purposes of Section 452, I.P.C., and therefore whether the appellants were guilty of criminal trespass under that section.
- Whether the evidence supported convictions for causing hurt under Section 323/34, I.P.C.
- Whether the trial court's acquittals on the charges under Sections 302/34 and 324/34, I.P.C. were correct — specifically:
- whether private persons (pursuers) had the right to arrest alleged offenders under Section 59(1), Criminal P.C., when they acted on the basis of having seen the accused running away immediately after an alleged offence, and
- whether the appellants exceeded their right of private defence when they injured or caused death during the encounter with the pursuing party.
Arguments of the Parties
Appellants' Arguments
- The appellants pleaded not guilty and contended they had been falsely implicated out of enmity; they led no evidence in defence.
- They argued that they had entered only a courtyard and not a building, and therefore could not be convicted under Section 452, I.P.C.
State/Prosecution's Arguments
- The prosecution relied on the testimony of Kartar Singh and his sons (notably Anokh Singh, P.W. 15) and on Jogindar Singh (P.W. 16) to support the view that the appellants entered with intent to steal cattle and were clearly identified on a moonlit night.
- On appeal, the State challenged the acquittals under Sections 302/34 and 324/34, I.P.C., arguing that persons in the pursuing party (Waryam Singh and Sundar Singh) had a right to arrest under Section 59(1), Criminal P.C., and relied on the authority of Sheo Balak v. Emperor (AIR 1948 All 103) to support that position.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheo Balak v. Emperor, AIR 1948 All 103 (A) | Held that when a person is seen committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one transaction; a person who sees the offender committing the offence or finds him running away immediately after the commission would be entitled to arrest him under S.59, Criminal P.C. | The State relied on this authority to argue that the pursuing villagers had a right to arrest. The court discussed this authority as representing the Allahabad High Court view that fresh pursuit immediately after the offence may justify arrest under S.59, but observed it was not necessary to decide that point in the present case. |
| Kalai v. Kalu Chowkidar, 27 Cal 366 (Division Bench) | Holds that a private person under S.59(1), Criminal P.C., has no right to effect an arrest unless the offence was committed in the view of that private person. | The court cited and agreed with this decision as supporting the proposition that S.59(1) should not be construed to allow arrest by a private person based solely on his opinion; the court considered it dangerous to allow arrest on mere opinion. |
| Rex v. George Howarth, (1824-37) 1 Moody's Crown Cases 207 | English common-law authority cited for the proposition that taking a person on fresh pursuit before he has left the neighbourhood is equivalent to taking him in the place where the offence was committed — treating the entire episode as one transaction. | The court cited this case as underlying the English-law basis for the view adopted in the Allahabad decision (Sheo Balak), noting it lends support to the proposition that fresh pursuit may be treated as part of the same transaction. |
| Downing v. Capel, (1867) 2 C.P. 461 (Keating, J.) | Interprets the intention of the corresponding English statute as authorizing immediate apprehension of a criminal when seen in a position justifying the belief he committed the offence; used to illustrate statutory purpose allowing immediate apprehension. | The court quoted this authority to demonstrate that the Allahabad High Court's approach is consistent with English precedents and to show that the English statutory approach does not run counter to the interpretation of S.59(1); nonetheless, the court did not need to resolve the point in the present case. |
Court's Reasoning and Analysis
The court proceeded in two phases: first, it reviewed the convictions and sentences imposed by the trial court; second, it examined the State's challenge to the acquittals on the more serious charges and the related legal question about private arrest and private defence.
On Section 452, I.P.C. (criminal trespass into a building): the court accepted the complainant Kartar Singh's unchallenged description of his "haveli" — a residential house where the family resided and where cattle were tethered within an enclosure. The description was corroborated by a plan produced in evidence. Given that the building was used as a human dwelling and Kartar Singh was not cross-examined on the matter, the court concluded the courtyard entered by the appellants was, in the circumstances, part of a "building" for the purposes of Section 452. The presence of weapons and the appellants' being found near the cattle at about 11 p.m. supported the inference of an intention to commit theft of cattle. The court therefore found the conviction under Section 452 to be correct and regarded the two-year rigorous imprisonment sentence as not excessive in view of the dangerous weapons involved.
On Section 323/34, I.P.C. (causing hurt): the court held the prosecution had proved beyond reasonable doubt that the appellants caused hurt to Jogindar Singh (P.W. 16), and no argument was advanced before the court attacking this conviction. The court therefore maintained the conviction and sentence under this count.
On the State's appeal against acquittals under Sections 302/34 and 324/34, I.P.C.: the trial court had concluded that, under Section 59(1), Criminal P.C., the pursuing villagers (including Waryam Singh and Sundar Singh) were not authorised to arrest the culprits because the offence under Section 452 had not been committed "in their presence or within their sight"; accordingly the appellants had a right of private defence and did not exceed it. The State relied on the Allahabad High Court decision in Sheo Balak v. Emperor to argue that fresh pursuit immediately after commission of an offence could justify arrest under Section 59(1).
The court analyzed the statutory text of Section 59(1) — particularly the phrase "in his view" — and debated whether it should be read as "in his presence or sight" or as "in his opinion." The court endorsed the interpretation in Kalai v. Kalu Chowkidar that a private person under Section 59(1) has no right to arrest unless the offence was committed in that person's view. The court emphasized the risks of permitting arrest by private persons on the basis of mere opinion, however strongly held, as that could be open to serious misuse.
The court nonetheless acknowledged the competing principle found in the Allahabad decision (Sheo Balak) and English authorities (Rex v. George Howarth; Downing v. Capel) that a person seen running away immediately after committing an offence may be treated as part of the same transaction and thus susceptible to arrest by a private person. The court observed that this English-derived view has “much to commend” but expressly stated it was unnecessary to decide whether Waryam Singh and Sundar Singh had the right to arrest in the present case.
The decisive factual and legal point relied upon by the court concerned the circumstances of the pursuit. The pursuing party numbered about 60 to 70 persons, was armed with dangerous weapons (kulharis, kirpans, kulharis and similar), and were brandishing these weapons. Waryam Singh, who was ahead of the party, was armed with a kulhari. Upon reaching the appellants, the pursuit party surrounded them; Darshan Singh was attacked and killed on the spot, and Kartar Singh (one of the appellants) was found to have received eight injuries when captured. Given these facts, the court held that Kartar Singh had reasonable apprehension of death or grievous hurt from the pursuing mob and was therefore justified in acting in private defence. He delivered a single spear blow which unfortunately proved fatal. For the same reasons, the court held that the other appellants who injured Sundar Singh did not exceed the bounds of private defence.
On that basis — without deciding the broader legal question of private persons' power to arrest under all circumstances — the court agreed with the trial court's conclusion that the appellants were entitled to acquittal under Sections 302/34 and 324/34, I.P.C.
Holding and Implications
Core Ruling: Both appeals were dismissed. Specifically, Criminal Appeal No. 622 of 1954 (challenge by the appellants) was dismissed, and Criminal Appeal No. 81 of 1955 (appeal by the State) was also dismissed.
Direct consequences for the parties:
- The convictions under Section 452, I.P.C. (criminal trespass) were upheld and the sentence of two years' rigorous imprisonment was maintained.
- The conviction and sentence under Section 323/34, I.P.C. (causing hurt) were maintained (four months' rigorous imprisonment), with both sentences to run concurrently as previously ordered.
- The acquittals under Sections 302/34 and 324/34, I.P.C. were affirmed because the court found the appellants acted within the right of private defence in the circumstances of a large, armed pursuing party.
Broader implications:
The court engaged with existing authorities on the proper scope of Section 59(1), Criminal P.C., including a host of English and Indian precedents, and expressed agreement with the line of authority that restricts private persons from arresting others on mere opinion. However, the court did not lay down a new rule or resolve definitively the tension between the competing lines of authority (Kalai v. Kalu Chowkidar versus Sheo Balak and English authorities) because it found it unnecessary to do so for the resolution of these appeals. The decision's primary effect is the affirmation of convictions for trespass and hurt and the affirmation of the trial court's acquittals on the more serious charges based on private defence in the particular facts of this case.
Disposition: Appeals dismissed.
Bishan Narain, J.:— The three appellants before us were tried under S. 452, I.P.C, for having committed criminal trespass in the house of Kartar Singh (P.W 14) on the night between the 12th and 13th of January 1954 with the intention of committing theft of his cattle after having made preparation for causing hurt to the inmates of the house, and under S. 302/34, I.P.C, for having murdered Waryam Singh and also under S. 323/34 and S. 324/34 I.P.C, for having caused hurt to Jogindar Singh and Sundar Singh.
2. The Additional Sessions Judge, Amritsar, convicted all the accused persons under S. 452, I.P.C, and sentenced them to two years' rigorous imprisonment each. He also convicted them under S. 323/34, I.P.C, awarding a sentence of four months' rigorous imprisonment each, but the sentences under both the counts were ordered to run concurrently. He, however, acquitted them of all the other charges framed against them. The appellants have appealed to this Court against their convictions and sentences while the State has appealed against the order of acquittal of the accused persons under Ss. 302/34 and 324/34, I.P.C It will be convenient to decide both the appeals (Criminal Appeals Nos. 622 of 1954 and 81 of 1955) by this judgment.
3. The prosecution case is that Kartar Singh P.W 14 is the owner of a ‘haveli’. On the night between the 12th and 13th of January 1954 he was sleeping in a room with his two sons and other members of the family while his son Anokh Singh was sleeping in the verandah keeping guard on the cattle tethered in the courtyard. At about 11 p.m he woke up on hearing the barking of a dog and found the appellants along with Darshan Singh standing near the cattle in the courtyard. He raised an alarm and all the family members came out. Darshan Singh fired from his pistol.
4. Jogindar Singh, one of the appellants before us, gave a ‘dang’ blow on the head of Jogindar Singh (P.W 16) son of Kartar Singh. The culprits then ran away. The family members excepting the injured person and other persons living in the locality, all numbering about 60 or 70, pursued the intruders. Waryam Singh and his son Piara Singh were among them. They overtook the culprits about 200 karams from Kartar Singh's house. I may state here that it was a moonlit night. Darshan Singh and Jogindar Singh were armed with a pistol and a ‘dang’ respectively while the other two accused were armed with a spear each.
5. The pursuit party was armed with ‘dangs’, spears ‘kirpans’ and ‘kulharis’. Darshan Singh fired without hitting anybody. Waryam Singh was armed with a ‘kulhari’ and was ahead of the pursuit party. When he got near the culprits Kartar Singh appellant gave a spear blow in the abdomen of Waryam Singh who fell down on receiving this injury. In the meanwhile the other two appellants gave blows with their weapons to Sundar Singh another member of the pursuit party.
6. The villagers then fell upon Darshan and killed him on the spot. Kartar Singh appellant was captured but the other two escaped. After investigation the three appellants were tried and convicted as stated above.
7. The appellants pleaded not guilty and alleged that they had been falsely implicated on account of enmity. They, however, produced no evidence in defence.
8. Taking the appeal of the convicts, the prosecution case is supported by the evidence of Kartar Singh and his sons particularly Anokh Singh P.W 15 who was sleeping in the verandah and woke up on the barking of a dog. Jogindar Singh P.W who was hit on the head with a ‘dang’ has also supported the prosecution case. The night being moonlit it is only natural that the inmates should have seen the appellants.
9. There is no reason for these persons to implicate the appellants falsely. The fact that the appellants were armed and entered the ‘haveli’ about 11 p.m and were found standing near the cattle shows and proves that they had entered the ‘haveli’ with a view to commit theft of cattle.
10. It was argued on behalf of the appellants that they had entered only a courtyard and therefore they cannot be said to have entered a building and therefore they were not guilty under S. 452, I.P.C There is, however, no doubt that the building in the present case was used as a human dwelling. Kartar Singh, (P.W 14) the complainant has described his ‘haveli’ in the following words—
“My residential house is situated in the outskirts of village Thathian. I also tether my cattle in that house and reside there with family. Its enclosure wall is “about three feet high. I, Tarlok Singh, Jogindar Singh and Anokh Singh P.Ws who are my sons and other members of my family reside in that house.”
11. This description is supported by the plan produced in the case. Kartar Singh (P.W 14) was not cross-examined regarding this matter. I therefore hold that the courtyard which the appellants entered was in the circumstances a building and therefore they were rightly convicted under S. 452, I.P.C The sentence of two years' rigorous imprisonment cannot be considered to be excessive when one remembers that one of the offenders was armed with, a pistol and two of them were armed with, spears.
12. As regards the conviction of the appellants under S. 323/34, I.P.C, for causing hurt to Jogindar Singh (P.W 16) in the courtyard, the case is proved beyond reasonable doubt against the appellants by the evidence on the record including the statement of Jogindar Singh himself. In fact no argument was advanced before us attacking their conviction under S. 323/34, I.P.C I therefore maintain the conviction and the sentence under this charge. The result is that Cri. App. No. 622 of 1954 fails and I would dismiss it.
13. Now, I shall deal with the appeal (Cri. App. No. 81 of 1955) filed by the State. The learned Additional Sessions Judge found that under S. 59(1), Criminal P.C, Waryam Singh deceased and Sundar Singh were not authorised to arrest the culprits as the offence under S. 452, I.P.C had not been committed in their presence or within their sight and therefore the appellants had a right of private defence of their bodies and as the victims, Waryam Singh and Sundar Singh, were armed with kulhari and stick respectively, the appellants cannot be said to have exceeded their right of private defence.
14. It is on these findings that the appellants were acquitted under S. 302/34 and S. 324/34, I.P.C The learned counsel for the State has questioned the correctness of this position and according to him Waryam Singh and Sundar Singh had a right to arrest the accused in the circumstances of the case and for this purpose he has relied on — ‘Sheo Balak v. Emperor’, AIR 1948 All 103 (A).
15. It is clear from the evidence in the present case that the villagers on hearing the alarm of their neighbour Kartar Singh and his family members came out and saw the culprits running away after they had left the ‘haveli’ of Kartar Singh. It is common ground that the appellants had not in fact committed any theft and were not carrying any stolen cattle or other goods with them. It follows that the offence under S. 452, I.P.C was not committed in their presence or within their sight.
16. They pursued the culprits as their neighbour Kartar Singh and his sons etc. had stated that the accused had committed the offence and were themselves pursuing the culprits. The question arises whether S. 59(1), Criminal P.C, authorises a private person to arrest the alleged accused persons. Section 59(1) reads:—
“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.”
17. The question arises whether the phrase “in his view” should be construed as “in his presence or sight” or as “in his opinion”. A person may be certain in his mind that the accused who is running away had committed a non-bailable and cognizable offence because of the statement of his neighbour which he believes and because of what he himself sees immediately after the commission of the offence, and yet, as far as I can see, he has no right to arrest the alleged culprits.
18. It was held in — ‘Kalai v. Kalu Chowkidar’, 27 Cal 366 (B), by a Division Bench of that Court that a private person under S. 59(1), Criminal P.C, has no right to effect arrest unless the offence was committed in the view of such a person, and this decision has been followed since then by the High Courts in India whenever this question has arisen.
19. With due respect I agree with these decisions as it appears to me that it would be extremely dangerous to allow a private person to arrest another person under S. 59(1), Criminal P.C on the basis of his mere opinion, however definite it may be, that the offender had committed a non-bailable and cognizable offence. It would be dangerous to allow a private person to arrest an alleged offender on the basis of his opinion even if it is based on unimpeachable evidence as it would be open to serious misuse.
20. All the decisions are to the effect that the legislature did not intend to allow a private person to arrest another person on the basis of his opinion only. There is, however, another aspect of the matter. When the commission of a particular offence is completed, does the offender continue in the commission of his offence when he is running away? It was held in AIR 1948 All 103 (A), by a Division Bench of that Court that
“When a man is found committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one single 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 S. 59, Criminal P.C”
21. There is much to commend for this view as otherwise a private person would hardly ever be in a position to render assistance to a victim of an offence by arresting the offender and this state of law obviously makes the escape of the offender easy. Now, the decision of the Allahabad High Court is based on English law where under common law it was held in — ‘Rex v. George Howarth’, (1824-37) 1 Moody's Crown Cases 207 (C).
“The conviction was lawful, for as he was seen in the out-house, and was taken on fresh pursuit before he had left the neighbourhood, it was the same as if he had been taken in the out-house, or in running away from it, that it was all one transaction.”
22. On the basis of a statute it was observed in — ‘Downing v. Capel’, (1867) 2 CP 461 (D), by Keating, J.,—
“The intention of the statute evidently is, that the criminal should be apprehended immediately on the commission of the offence. It is sufficient, if the person apprehended has been seen in a position which justified the belief that he had committed the offence; ………………” In the English statute it was provided that “any person found committing an offence ………. may be immediately apprehended without a warrant by any person”. It appears to me therefore that the view taken in the Allahabad case does not run counter to S. 59(1), Criminal P.C It is, however, not necessary to decide this point in the present case as to whether Waryam Singh and Sundar Singh had a right to arrest the appellants or not. It is clear that the pursuing party consisting of 60 to 70 persons were fully armed with ‘kulharis’ and ‘kirpans’ etc. They were all brandishing their weapons.
23. Waryam Singh was ahead of the party and was armed with a ‘kulhari’. On reaching the appellants the pursuit party surrounded them. Darshan Singh was attacked and was injured with sharp-edged weapons and was killed on the spot. Kartar Singh was found to have received eight injuries when he was arrested. In the circumstances it cannot be said that the appellant Kartar Singh did not have reasonable apprehension that he was likely to be killed by the members of the pursuit party. He was therefore justified in defending himself. He gave only one blow with his spear which unfortunately proved fatal.
24. In the circumstances it cannot be said that the appellants exceeded their right of private defence. The same remarks apply to those appellants who injured Sundar Singh. I am therefore of the opinion in agreement with the finding of the trial Court that the appellants were entitled to acquittal under the charges framed against them under Ss. 302/34 and 324/34, I.P.C I would therefore dismiss this appeal also. The result is that I would dismiss both Cri. Apps. Nos. 622 of 1954 and 81 of 1955.
Dulat, J.:— I agree.
D.H.Z
25. Appeals dismissed.
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