Full Judgment
Boys, J.
1. This is a Reference by the Sessions Judge of Meerut recommending that the convictions and sentances passed on four men under Sections 166 and 342 of the Indian Penal Code should be set aside on the ground that the arrest in respect of which they have been convicted was not an illegal arrest but was justifiable in law.
2. It appears that the complainant Gopi Nath had come from Allahabad to the Court of the Subordinate Judge of Meerut in order to give evidence in some proceedings before the Subordinate Judge under Section 195 of the Cr.P.C. At the time when he went to the Court of the Subordinate Judge to give evidence, he went, as found by the Judge, to all intents and purposes as a witness summoned, though, in fact, no summons had been served on him. At this time there was a warrant out against him for his arrest in certain execution proceedings. On his arrival at the Court of the Subordinate Judge he asked for protection from arrest until he should be able to return to Allahabad. He was informed that as a witness he could not be arrested and no special orders were necessary. As a matter of fact, before he reached the Railway Station at Meerut, he was arrested and that arrest has formed the subject of the proceedings resulting in the conviction and sentence which the Sessions Judge has referred with a recommendation that they should be set aside. It is urged on behalf of the complainant that he was, in fact, returning to Allahabad when he was arrested, though he was visiting his son's house en route. It is suggested that at that time he was residing temporarily, at any rate, at his son's house, but there is no evidence of any sort to that, effect. The protection given by Section 135 of the Cr.P.C. is expressed as protection 'while returning from such Tribunal'. It is clear that it cannot be claimed by a witness, who is claiming privilege, to return by any route he pleases. It is clear that his return must be straight from the Court to the place whence he came in obedience to the summons. He himself has in Ex. A described that place as Allahabad. Both Courts find that, as a matter of fact, he was returning by a circuitous route which he had no doubt taken in order to see his son. It cannot possibly be open to a witness claiming privilege to dictate as to how far out of the straight route he may or may not go. He himself said that he wanted protection to go to Allahabad and it was by the direct route to Allahabad that he could have protection and by no other. This, of course, does not mean that if a witness, goes to his destination by a road a few yards out of the way he, therefore, necessarily loses his protection. But on the findings of fact of the lower Courts, the complainant in this case did more.
3. Under these circumstances I accept the Reference of the Sessions Judge and direct that the convictions and sentences be set aside. The fines, if paid, will be refunded.