Bhawoo Jivaji vs Mulji Dayal on 22 March, 1888

Bombay High Court

Bhawoo Jivaji vs Mulji Dayal on 22 March, 1888
Equivalent citations: (1888) ILR 12 Bom 377
Author: Birdwood
Bench: Birdwood, Parsons
JUDGMENT Birdwood, J.

1. The Magistrate has found, on the evidence in this case, that the complainant, a Bhatia
cloth-broker and shopkeeper, was stopped and questioned by the accused, a constable of the
Bombay police force, regarding three pieces of cloth that he was carrying; that an altercation
occurred between them; that the complainant was ultimately arrested and marched off in ignominy
through the streets, first to the Girgaum Police station and then to Dhobi Talav, and that he was in
police custody for upwards of four hours before he was finally discharged by Inspector Saunders
without any recognizance being taken or charge framed against him. In his examination before the
Magistrate, the accused said that he had taken the complainant into custody because he had
assaulted him. The complainant denied that he had struck the accused, but admitted that he had a
scuffle with him and that his hand might have gone against the body of the accused. It was
contended for the accused, in the Court below, that he was within his rights in making enquiries
about the cloth, as the complainant was carrying it at an unusual time, that is to say, at about 6-30
or 7 A.M., and that the circumstances were such as to justify a reasonable suspicion that the cloth
was stolen property, the complainant's clothes being soiled and the pieces of cloth having been
described by him as of English manufacture, whereas they bore a native name, stamped in Gujarathi
characters. The Magistrate, however, could not see the slightest justification for the suspicion which
the accused professed to entertain, and was of opinion that the complainant not unnaturally
resented the questions put to him as an insult and as a gratuitous imputation on his honesty. He was
further of opinion that it was not a very material point in the case whether the complainant pushed
the constable or struck him a slight blow with the open hand, as it was quite clear that the scuffle
was caused simply and solely by the action of the accused in treating the complainant, without any
valid cause whatever, as a suspected thief. Here, we think, the Magistrate erred in his view of the
law; for, assuming for the moment that the action of the accused was quite illegal up to the moment
when he put his hands on the cloth, on failing to receive what he considered satisfactory answers to
the questions put by him to the complainant, still that would not justify the blow struck by the
complainant, if he really did strike the accused, and not merely come in contact with his body or
push him while scuffling with him in the endeavour to save his bundle of cloth. If the action of the
accused was illegal, the complainant could legally struggle to free himself and his property; but
Section 99 of the Indian Penal Code would not justify his voluntarily causing hurt to the accused. If
the Magistrate had found, as a fact, that the complainant struck the blow described by two of the
witnesses for the defence, then there would have been an end of the case; for the accused would, in
that event, have been certainly justified in arresting the complainant.

2. It is only in very exceptional cases that this Court sitting as a Court of Revision deals with
questions of evidence, and disturbs or supplements the finding of a lower Court on a question of
fact-Queen Empress v. Shek Saheb Badrudin I.L.R., 8 Bom., 197. It will do so, in the interests of
justice, where the enquiry in the lower Court has been faulty-Nobin Krishna v. Rassick Lall I.L.R., 10

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Calc., 1047 In the present case, if it were necessary to do so, we would ourselves be prepared to
consider the evidence bearing on the particular circumstance relied on at the trial as a justification
of the arrest, because, in trying the case, the Magistrate has admitted a good deal of evidence on the
record as to the respectability of the complainant which would have been admissible only if it had
appeared that the complainant was known to the accused, and necessarily known to him as a
respectable person, before the morning on which he was arrested. This evidence ought to have been
rejected at once. The Magistrate seems to have become aware, as the case proceeded, that it was not
relevant; but, after it had once been admitted, it is impossible to say that the impression made by it
on his mind as to the character of the complainant may not have induced him to attach undue
weight to some parts of his evidence relating to the conduct of the accused. Moreover, in referring to
the question whether the alleged assault could have been serious or not, the Magistrate seems to
have had regard rather to the opinion regarding the nature of the assault held by the accused's
superior officer than to the evidence regarding it adduced at the trial, which ought to have furnished
the only material for a decision on the point. However, we can dispose of the application before us
without either deciding ourselves, or requiring the Magistrate now to decide the question whether,
as a matter of fact, the complainant struck the accused in the manner alleged or not.

3. We think that, in dealing with the case, the Magistrate has been led to a wrong decision from
failing to consider aright the question whether the accused acted in good faith in questioning the
complainant and putting his hand on his bundle of cloth. The accused has been convicted, under
Section 342 of the Indian Penal Code, of wrongfully confining the complainant, i.e. of voluntarily
obstructing him from proceeding in a direction in which he had a right to proceed, and preventing
him from proceeding beyond certain circumscribed limits. Assuming, then that the complainant did
not strike the accused, but merely struggled with him in order to free his property, the arrest of the
complainant would be an offence against the section if the complainant was in law, justified in
resisting the action of the accused in putting his hand upon his property. That the complainant was
justified in resenting the questions put to him, we cannot for a moment hold; for it is quite clear to
us that the questions were put, not for the purpose of annoying the complainant, or from mere idle
and officious curiosity, but in order to remove an honest suspicion in the mind of the constable that
the bundle might be stolen property. The accused did not know the complainant, and could not, we
think, have acted from any malicious motive. He was at his post, where he was required to be from 4
A.M. to 7 A.M., his special duty being to prevent the removal of stolen property by thieves
attempting to evade the police. He saw the complainant, who was waiting for a tram-car, with the
cloth under his arm, at about half-past six o'clock, or perhaps a little later, on the morning of the
29th December i.e., apparently about sunrise. We cannot say that the contention of the counsel for
the accused in the Court below that was an unusual time for persons to be carrying bundles is
without weight. The accused himself said in his examination that he suspected the complainant,
because he was dressed in dirty clothes, and because the uppermost of the three pieces of cloth was
dirty. If he had an honest suspicion, as we think he had then, even though the same facts might not
have raised any suspicion in the mind of a police officer of higher grade, still he acted, we think, with
due care in putting questions the answers to which might clear away his suspicions. The putting of
questions under these circumstances was in itself an indication of good faith, as defined in Section
52 of the Penal Code. He said at the trial that he received no answers to his questions. It is to be
regretted that he was not questioned further as to what he meant by saying so whether he meant, for

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instance, that at first he received no answers or whether he meant that he received no answers at all;
for he certainly told Inspector Saunders the answers which were given him and adduced witnesses
at the trial, who deposed to the conversation which took place. He certainly obtained answers to his
questions, and was evidently not satisfied with those answers, and then he seems to have put his
hand on the bundle and was resisted by the complainant. He may have shown a want of intelligence
in not accepting as satisfactory the complainant's answer that the cloth was of English manufacture,
though it bore a name stamped in Gujarathi characters; but we do not doubt that this answer did not
satisfy him as to the honesty of the complainant He himself, as we think, believed that he was legally
justified in detaining the cloth; and though he was entirely mistaken as to the character of the
complainant, we think that his belief as to his legal right was a bond-fide belief, and that he is
protected by Section 79 of the Penal Code (Act XLV of 1860).

4. We also think that, under the first paragraph of Section 99, the complainant had no right to resist
the accused when he tried to detain the cloth. The decision of the case really turns upon the question
whether the accused acted in good faith; and that question must be considered with reference to the
position of the accused and the circumstances under which he acted. If he acted with due care and
attention such as ought to be expected from a constable in his position, in the circumstances in
which he was placed, then he acted in good faith; and even though his act might not have been
"strictly justifiable by law,"-that is, even though there might not have been a complete basis of fact to
justify a reasonable suspicion that the cloth was stolen property,-still the complainant had no right
of private defence, as the accused was a public servant acting under colour of his office, and his act
was not one which caused the apprehension of death or of grievous hurt: see Beg. v. Venkatrao 7
Bom. H.C. Rep. Cr. Ca., 50 The question of good faith, as far as it is one of fact, we are prepared in
this case to deal with ourselves. We think, as we have already said, that the accused was justified in
questioning the complainant; and we think further that he is not liable to be dealt with as a criminal,
because, after endeavouring to satisfy himself whether his suspicions were well founded or not, he
was not satisfied by such answers as he received, though such answers might have satisfied a more
intelligent man, or one in a higher position, and because he, thereupon, proceeded to put his hand
on the property which he believed to be stolen, whether he did so with the intention of further
inspecting it, or of arresting the accused for being in possession of it. We cannot hold that the law
exacts the same care and attention from all public servants regardless of the position they occupy. If
the same intelligence were required from a constable as from a Commissioner of Police, it would be
impossible to obtain the services of constables on the salaries which the State gives them for such
duties as are performed by the accused. We are forced, therefore, to consider whether there was
some ground for suspicion, and whether the accused, in the circumstances in which he was placed,
acted with such care as is sufficient to shield him from a criminal prosecution. Though we think that
there was very little ground, indeed, to justify a reasonable suspicion that the cloth was stolen
property, yet we think that there was some ground which gave rise to an honest belief on the part of
the accused, after such inquiry as he was able to make, that such a state of facts existed as would
justify his action. We think, therefore, that the Magistrate ought to have found in this case that the
accused acted in good faith, and that even though his act might not be strictly justifiable by law, the
complainant had no right to resist him. As he obstructed the accused while acting in the execution of
his duty, the arrest was legal under Section 54 of the Code of Criminal Procedure (Act X of 1882).

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5. We therefore reverse the conviction and sentence, and acquit the accused of the offence of which
he has been convicted, and direct that he be set at liberty. We express no opinion as to the legality of
the action of Mr. Inspector Saunders in discharging the complainant without reporting the case to
the Commissioner of Police, as we do not think that question, though discussed by the Magistrate, is
one which affects the legality of the arrest made by the accused.

Parsons, J.

6. The admitted facts of this case are few and simple. The accused, a police sepoy, was on duty at a
temporary post near the Arthur Crawford Market. His turn of duty lasted from 4 to 7 A.M. About
6-30, or between that time and 7, he saw the complainant there, carrying under his arm three pieces
of cloth. Being suspicious as to whether these cloths might not be stolen property, he went up to the
complainant and began to question him about them. The complainant answered the questions
apparently truthfully. One of the answers, however, was that the cloths were made in England. Now
the cloths bore Gujarathi names on them, and the accused, who did not know (as well as he might
not) that such names were placed on English-made goods, presumed from this that the answer was
a false one, and that the goods were stolen property. He did not, however, at once proceed to arrest
the complainant, but took hold of one of the pieces of cloth in order to look at it more closely. The
complainant objected to this. He held the cloth and obstructed the accused, and there was a scuffle,
each trying to obtain possession of the cloth. It was after this that the accused arrested the
complainant. The after facts are not material, but it may be stated that the accused took the
complainant to a European Inspector, to whom he narrated the facts, distinctly stating that he had
arrested the complainant because he had assaulted him, and that the Inspector, on seeing that the
complainant was an old man, and on the accused saying that he was not hurt, let the complainant
go. The disputed fact in this case is, whether there was an actual assault, that is, whether the
complainant struck the accused a blow. With this fact I shall, if necessary, deal later on, as well as
with the competency of this Court to go into such a question of fact. The Magistrate considered that
it was not material to decide the point, but, on the admitted facts, he convicted the accused of the
offence of wrongful confinement, and sentenced him, under Section 342 of the Penal Code, to four
months' rigorous imprisonment. The question before us is as to the legality of this order and
sentence.

7. Now it is quite clear, from the judgment of the Magistrate itself, that he has erred in his mode of
dealing with the case, inasmuch as he has not really considered whether the accused was guilty of a
criminal offence. In his judgment he has not alluded in any way to the protection that the law
affords to an act done by a person who, by reason of a mistake of fact, in good faith, believes himself
either to be bound by law to do it, or to be justified by law in doing it (Sections 76 and 79 of the
Penal Code); nor, indeed, has he alluded to the provision of law 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. (Section 99 of the Penal Code). The
Magistrate has thus decided the case as if it were a civil action to recover damages instead of a
charge of a criminal offence, and has convicted the accused, although he has nowhere found that the
accused was not acting in good faith. The whole case really turns on this point, namely, whether the

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accused did act in good faith. If he did, then he is not criminally guilty, however wrong and civilly
liable his action may be. If he did not, then he would be guilty of an offence, unless, of course, he
arrested the complainant in consequence of a distinct assault upon himself. This, then, is the point
which has first to be considered, whether the accused, in arresting the complainant, acted in good
faith; in other words, with due care and attention. (Section 52 of the Penal Code). Complainant's
counsel has argued that his client was a respectable tradesman, and at the time of his arrest well
dressed and engaged in his ordinary occupation at a usual hour; that a police officer has no right
whatever even to question such a person as to any thing he might be carrying in his arms; that the
accused in questioning him acted without the slightest possible shadow of a suspicion, and that
therefore his, client had a perfect right to use force and prevent the accused overpowering him and
taking away his cloths. No doubt it is true that the law does not, in so many words, give a police
officer power to question persons in order to ascertain if the goods they are in possession of are
stolen. It, however, assumes, I imagine, that every person has the right to speak to another. It gives
an officer in charge of a police station the power to arrest any person who cannot give a satisfactory
account of himself. (Section 55, Criminal Procedure Code of 1882.) This presupposes some kind of
questioning. The law also gives any police officer power to arrest any person in whose possession
any thing is found which may reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with reference to such thing. (Section 54,
Criminal Procedure Code, and Sections 86 and 35 of Act XIII of 1856). I do not think that it could
seriously be contended that, under either Code, a police officer, who has the power of arrest, must at
once exercise the power, and that he has not the power, prior to the arrest, of asking any questions,
the answers to which might serve to show him whether or not his previously aroused suspicions
were correct. I should have thought that the very fact that such questions were put would go to show
that the police officer was acting with care and attention, and not hastily and inconsiderately. The
words "reasonably suspected" in Section 54 of the Criminal Procedure Code are of course important.
If it could be shown that the accused knew the complainant before this to be a respectable
tradesman; if the complainant was at the time well dressed, and if it is a fact that persons who carry
stolen property are either not well dressed or dressed differently to the complainant, or if it
appeared that the time at which the complainant was seen was usual and consistent with his
business, then no doubt it might be plausibly argued that the accused could have had no reason to
suspect him; but it is admitted that the accused did not know and had never seen the complainant
before; it is not shown that possessors of stolen property are always badly dressed or wear any
particular garb and it is stated by the complainant himself that the time at which he was out was
early for his business, from which I gather that it was not usual either for himself or other traders to
be carrying about pieces of cloth at that time.

8. It would not, however, be sufficient in this case merely to show that the accused had no reason for
suspicion in the light of after-events; for the accused can show that circumstances exist from which
it can be seen that, in suspecting the complainant, he was acting in good faith, that is, with due care
and attention. I have said that the accused was on duty at a temporary post. These posts are
established from 4 to 7 A.M., "in order to prevent the removal of stolen property by thieves
attempting to evade the police." One of the rules of the police force is that "constables must direct
their attention to persons carrying parcels, bundles, &c., at unreasonable hours or under suspicious
circumstances, and if there are sufficient grounds, such bundles are to be searched," and the police

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officer is instructed in the same rules that "he may stop, search, and detain any person suspected of
having anything stolen or unlawfully obtained." It would not, I think, be easy to hold that the
accused acted without due care and attention by merely obeying these rules, which are framed and
sanctioned by Government under Section 8 of Act XIII of 1856 and which have been in force for
many years past. In the trial of the case itself, it has never been suggested that the accused was
actuated by any malice. The complainant does, indeed, in his information say that the accused was
instigated by other persons to arrest him in order to ruin his business, but this allegation was not
supported, and there can be no doubt that it is false. It is not stated in the judgment of the
Magistrate, nor, indeed, have I heard it stated in the whole course of the argument, that the accused
did not honestly believe that he was justified in law in first questioning, then detaining, and
subsequently arresting the complainant. The case of the complainant and the ground of the
conviction are that the arrest was bad, because there never were any reasonable grounds to justify
the accused in suspecting at the outset that the complainant was carrying stolen property; but as I
have said above, that might justify an award of damages in a civil suit; it Would not of itself be
sufficient to justify a conviction of a criminal offence. If the accused can show that he was acting
with due care and attention, and that he in good faith believed that his suspicion was reasonable
one, and that he was justified by law in questioning the complainant and searching his bundle, and
in arresting him, he is entitled to an acquittal. This is so independently of the attempt of the
complainant to prevent the accused looking at his bundle of cloths, for if the accused would not be
criminally liable had he arrested the complainant before the complainant attempted to obstruct him
in the exercise in good faith of his duty, how much more is the accused protected when it is found
that he did not arrest the complainant until after the complainant had so obstructed him. No doubt
the complainant was naturally indignant at being asked about his bundle, but he should have
remembered who his questioner was. The general security of the public is to be considered of more
importance than the occasional detention of a person like the complainant, who, if as in this case
unjustly arrested, can very speedily clear himself. In___ suspecting the complainant, and in
proceeding to examine the cloth more closely, I am clearly of opinion that the accused is shown to
have been acting in good faith in the execution of his duty. Against his acts, even if not strictly
justifiable by law, there would be no right of private defence of property at all, and none of person,
unless the acts were such as to cause the apprehension of death or of grievous hurt. The acts of the
accused in this case, even if directed against the person of the complainant, were not such. The
complainant was, therefore, not justified in refusing to allow the accused to inspect the cloth, in
snatching it from him, and in scuffling with him, and he must be considered in so doing to have
obstructed a police officer whilst in the execution of his duty. It would be a perilous thing to. hold
that any person, however well dressed, could refuse to allow a bundle which he was carrying to be
inspected by a police officer, who entertained a reasonable suspicion of its contents and could
support that refusal by force. for the obstruction caused to him while in execution of his duty the
accused could under Section 54(5) of the Criminal Procedure Code arrest the complainant. Whether,
therefore, the arrest be considered as the result of the complainant being reasonably suspected of
having stolen property in his possession as the Magistrate appears to consider, or as an arrest in
consequence of the accused Slaving been obstructed in the execution of his duty as the accused says
it was, and as there is ample evidence on the record to show that it was, in either case my opinion is
that the conviction of the; accused for an offence under Section 342 is not sustainable in law. It is,
therefore, unnecessary for me to consider the point as to whether the arrest was or was not made in

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consequence of a distinct assault committed by the complainant. I concur in reversing the

conviction and sentence and in ordering the accused to be acquitted and discharged.

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