Meredith, J.:— The petitioners Jograj Mahto and his son Rambilas Mahto were convicted by a First Class Magistrate of Samastipur under Ss. 225 and 823, I.P.C They were sentenced under S. 225 to undergo rigorous imprisonment for one year each and to pay fines of Rs. 20 each in default to undergo a further three months rigorous imprisonment each. Under S. 323 they were sentenced to undergo rigorous imprisonment for a period of one year each, this sentence to run concurrently with the period of imprisonment under S. 225, I.P.C An appeal against their conviction and sentence was dismissed by the learned Sessions Judge, Darbhanga. The findings of fact upon which they have been convicted are that on 10th March 1939, they rescued one Faujdar Gope, who was an accused in a dacoity case, from the custody of a chaukidar, and in the course of the rescue they attacked the chaukidar with lathis and the latter received one slight injury. This Faujdar Gope was said to have been absconding in connexion with a dacoity case within the jurisdiction of Mohiuddinnagar police station. The Sub-Inspector of that police station gave instructions to all the village police to look out for this man, and, if they found him, to arrest him. A chaukidar Doman Dusadh, of village Hassanpur learnt that Faujdar Gope was hiding in the house of the petitioner Jograj Mahto. On the day in question he went to Jograj's house and saw Faujdar Gope sitting at the door with the petitioner Rambilas. He went up from behind and saught Faujdar and tied him round the waist with his turban and began to take him towards the thana. When he had proceeded a short distance, Jograj and Rambilas came up with lathis and demanded his release. The chaukidar refused, and then Jograj hit the chaukidar with his lathi, and Rambilas struck him with his fists. The turban was snatched from his hands, and when the chaukidar again tried to seize Faujdar, Faujdar threw him down, and Jograj and Rambilas again assaulted him. Rambilas then untied Faujdar, and all three made off. The chaukidar was not medically examined, but the Sub-Inspector gave evidence that he had noticed a swelling on his arm.

2. The point taken in revision in that the arrest by the chaukidar was not lawful, and therfore in rescuing Faujdar the petitioners were exercising their legitimate right of private defence as defined in S. 97, I.P.C, and so committed no offence.

3. The chaukidar was not entitled to make the arrest, because a chaukidar though a village policeman, is not a police officer within the meaning of Section 54 of the Cr PC.S 54(1) provides inter alia that any police officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.

4. It is conceded that if the chaukidar was a police officer within the meaning of this section, the arrest was legal. It is clear however that this arrest could not have been lawfully made by the chaukidar as a private person. The powers of arrest of a private person as defined in Section 59 of the Cr PC, are much more limited. A private person may, inter alia, arrest any person who, in his view, commits a non-bailable and cognizable offence, or any proclaimed offender. This was not a case where any offence had been committed in the view of the chaukidar. The case apparently proceeded in the Courts below on the assumption that Faujdar was a proclaimed offender and as such could be arrested even by a private person. It was argued, however, that there was no evidence that Faujdar was a proclaimed offender, and in fact the only material on that point in the evidence was a vague statement of the Sub-Inspector to the effect that “process had issued,” whatever that might mean. We have looked into this matter, as it has been contended that no process under Section 87 of the Cr PC, had in fact issued against Faujdar, and we find from the order sheet that this is so. The order sheet shows that processes under Sections 87 and 88 of the Cr PC, were issued against Faujdar only on 25th March 1939, that is to say fifteen days after the offences for which the petitioners have been convicted, are said to have been committed. Faujdar Gope on 10th March was clearly not a proclaimed offender, and the chaukidar could not have lawfully arrested him as a private person. Nor could the chaukidar have lawfully made the arrest under the special powers of arrest which are conferred on village chaukidars under the Village Administration Act (III of 1922). These powers of arrest are defined in S. 27 of that Act. Though they are somewhat more extensive than the powers of a private person they are considerably more limited than the powers of a police officer. It is provided under S. 27(1)(ii):

He shall arrest—(a) all proclaimed offenders; (b) all persons whom he may find in the act of committing any offence specified in Sch. 3; (c) any person against whom a hue and cry has been raised of his being concerned in any offence specified in Sch. 3 whether such offence has been or is being committed within or outside his union; (d) any person in whose possession anything is found which may reasonably be suspected to be stolen property, or who may reasonably be suspected of having committed an offence with reference to such thing; and (e) any person who obstructs a police officer while in the execution of his duty, or who has eacapad, or attempts to escape, from lawful custody;

5. None of these provisions is applicable in the present case. Faujdar was not proclaimed offender. He was not caught by the chaukidar in the act of committing any offence, nor was stolen property seen in his possession, nor had he obstructed the police or escaped from police custody. Nor do I think it can be said that a hue and cry had been raised of his being concerned in any offence. The words “hue and cry” must, I think, be held to mean something more than a mere direction of the Sub-Inspector of Police to the village chaukidars to look out for this man and to arrest him. The special powers of the chaukidar under the Village Administration Act, in my view, would not extend to effecting an arrest in the circumstances of the present case. It cannot be held that this was an arrest that was made under the provisions of Section 56 of the Cr PC. S. 56 provides that when any officer in charge of a police station of any police officer making an investigation under Chap 14 requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made.

6. Even if it be held that the chaukidar is an officer subordinate to the Sub-Inspector within the meaning of this section, and that is perhaps an arguable point it is not claimed that there was any written order of the Sub-Inspector in this case. S. 56, therefore, has no application. It is clear from the above analysis that this arrest must be held to have been unlawful unless the chaukidar was entitled to arrest as a police officer within the meaning of Section 54 of the Cr PC. It has been held in 19 PLT 268 : 17 Pat 369,1 that the chaukidar is a police officer for the purposes of Sections 25 and 26 of the Evidence Act. However that may be, with regard to Section 54 of the Cr PC, there are a number of rulings of the Calcutta and Allahabad High Courts which take the view that he cannot be regarded as a police officer within the meaning of this section. Amongst such rulings are 27 Cal 366,2 41 Cal 17,3 3 All 604 and 52 All 203.5

7. In my opinion the view taken in these rulings is correct. In the Police Act 1861, the definition of “police” is as follows: “The word ‘police’ shall include all persons enrolled under this Act.” The chaukidar is not a person enrolled under the Police Act. As I have already said, he is appointed under the Village Administration Act (III of 1922). Apart from that the fact that his powers of arrest are specially defined in a limited sense under Section 27 of the Village Administration Act, appears to indicate that the Legislature did not contemplate that he should be regarded as a police officer under Section 54 of the Cr PC, who would, as such, have the extended powers of arrest which are provided under that Section. In my view it is clear that the village chaukidar has the limited powers of arrest provided under S. 27, Village Administration Act, and has not the full powers of arrest of a police officer laid down in Section 54 of the Cr PC. The chaukidar then could not have lawfully made this arrest as a police officer, nor, as I have shown, could he have lawfully made it in any other capacity. It is, therefore, clear that the arrest of Faujdar by the chaukidar was not lawful and his custody by the chaukidar was illegal. In this view the conviction under S. 225, Penal Code, cannot be sustained. S. 225 constitutes a special offence, and it is clear from its terms that offence cannot be committed unless the custody is lawful. It provides that whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully Retained for an offence, shall be punished, etc., etc.

8. Whether it is a case of obstructing illegally the lawful apprehension, or rescue from custody, in each case the word “lawful” is expressly used. As the custody in this case was not lawful, there could have been no offence committed under S. 225. It is true that the chaukidar in this case unquestionably acted in good faith. That, however, would not prevent his act from being unlawful, for it is clear from Ss. 339, 340 and 341, Penal Code, that the offences of wrongful restraint and wrongful confinement do not involve bad faith or any particular criminal intent. The question remains whether the convictions under S. 323, Penal Code, can be sustained. Once it is held that the custody of the chaukidar was not lawful, then the petitioners would be entitled to exercise the right of private defence of the person of Faujdar. It is provided in S. 97, Penal Code, that every person has a right, subject to the restrictions contained in S. 99, to defend his own body, and the body of any other person, against any offence affecting the human body. This was a case of an offence affecting the human body if Faujdar was wrongfully confined by the chaukidar. There was, therefore, a right to defend him unless the restrictions contained in S. 99 are applicable. S. 99, Penal Code, provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

9. The chaukidar in the present case was acting in good faith. Indeed he was acting under orders; and he was acting under colour of his office. His act, however, was wholly illegal. It has been held in many cases that S. 99 applies only where there is jurisdiction to do an act but that jurisdiction has been, in some respects, wrongfully exercised; where, for example, the authority, though present, is in some respects defective. It is to be observed that the expression used in the Section is “strictly justifiable by law.” I emphasize the word “strictly” which must have been deliberately inserted by the Legislature to show that this Section was not intended to apply to cases where the act was wholly unjustified. It does not extend to cases where there is a complete want of jurisdiction. Such, in my opinion, was the present case. I have shown that the arrest, in any view, was unlawful, and the chaukidar could, in no circumstances, have had authority to arrest Faujdar Gope. His act, in short, was one which he had no jurisdiction to perform. It was not merely a case of exercising an authority which was there, in a manner which was not wholly legal. This being so, in my opinion, S. 99 is not applicable, and it cannot be said that the petitioners lost their right of private defence by reason of the provisions of S. 99.

10. They could not, therefore, be convicted even or an offence under S. 323, I.P.C, ‘unless it is held that they exceeded the right of private defence. In my opinion it is impossible to hold on the materials in this case that the right of private defence have exceeded. The chaukidar no doubt would not have released his charge unless force had been used. The force used was slight. The sole injury caused was a swelling on the arm. In my opinion it would be wrong to hold that even if a lathi blow was struck and a slight injury caused in the course of effecting rescue, the right of private defence was thereby exceeded. Once it is held that the petitioners were entitled to effect rescue, the serious character of their actions disappears, and in this view it cannot, in my view, be held that they were guilty even of the offence under S. 323. In my view the conviction of the petitioners cannot be sustained under either of these sections. I would, therefore, make this rule absolute, acquit the petitioners, and direct that they be discharged from their bail. If the fines have been paid, they must be refunded.

Harries, C.J:— I agree.

D.S/R.K

11. Rule made absolute.