Panchapakesa Ayyar, J.
1. This is an appeal by the Madras Government against the acquittal of the three respondents by the Sub-Divisional Magistrate, Tiruvallur, and involves an important question of law, namely whether police constables can be subjected to criminal force by persons arrested by them for a non cognizable offence after their escape from custody and in revenge. The facts are briefly these. At about 7 P. M. on 21st June 1948, the three respondents and the mother of respondents 2 and 3 (accused 4 in the lower Court who was discharged, and is not the subject of this appeal) were quarrelling with each other and abusing each other in a public place, and were in fact committing an affray falling under Section 160, Penal Code. P. Ws. 1 and 2, two constables of Gummidipundi station, within whose limits the affray was taking place, went to the spot with a head constable, P. W. 3, and tried to stop the affray in progress, and warned the respondents not to quarrel. The story of P. Ws. 1 to 3 that the Sub-Inspector of Police sent them to stop the quarrel is not proved. The respondents paid no heed whatever to the warning of P. Ws. 1 to 3 but continued quarrelling. Thereupon, P. Ws. 1 to 3 arrested the three respondents and the discharged accused. The respondents escaped from custody and also pelted stones on P. Ws. 1 to 3 after the escape.
2. The learned Public Prosecutor urges that even if the arrest of the respondents was illegal, as an affray is a non-cognisable offence, and even if Section 57, Criminal P. C. will not apply to this case, and the respondents were, therefore, justified in wriggling out of the constables' grip and running away after inflicting some slight injuries in the process of escape, and the offence under Section 224, Penal Code, charged against them must also necessarily fail, the case is different with regard to the offence under Section 332, Penal Code, after the escape of the respondents from custody, charged against them. He went on to say that though an offence under Section 332, Penal Code might not stand, in the circumstances of this case, there was an undoubted offence under Section 353, Penal Code, clearly made out by the evidence on record, since the respondents not only caused some injuries to the constables in the course of escaping from their custody, but also threw some stones at them in revenge after their escape and caused some contusions and other slight injuries on P. Ws. 1 to 3. I agree.
3. While, under our law, a person is entitled to inflict the necessary minimum injuries, even on constables and other public officers illegally arresting him, in order to release himself from such unlawful custody, he is not given any right to beat them or pelt stones at them or use criminal force towards them in revenge after escaping from their custody. These constables are alleged, by the learned counsel for the respondents, not to have been on duty, at the time when they interfered in this quarrel and arrested the respondents and got the stone peltings after the escape. It was urged therefore that the offence would be only one under Section 352. But I agree with the learned Public Prosecutor that constables are, under Section 21, Madras District Police Act, always on duty when interfering in breaches of the public peace like this, within their station limits and jurisdiction whether in mufti or in uniform, as police officers of the Indian Union discharging the functions of such officers named in various Acts and rules. Of course, if a constable is having a private quarrel with another man and is beaten in the course of that quarrel that will not be use of criminal force in the course of his duty, falling under Section 353, Penal Code. So too if a constable is trying to commit an offence like theft and is caused hurt during a scuffle to prevent it. But a constable interfering in an affray in order to prevent it, as here, is only discharging his duty as a public servant though he may not be entitled to arrest the persons committing an affray as it is a non cognizable offence. If, as a result of his warning to persons committing the affray to desist from committing the affray, or even as a result of his taking them illeglly into his custody for persisting in the affray he is subjected to criminal force, as here, by pelting stones, after the persons have escaped from his custody and there is no need to inflict any criminal force on him for the purposes of such escape, an offence under Section 353, Penal Code will be made out. To hold otherwise will be against public interests and will subject constables going homewards along the road after their duty at the station is over and trying, in public interests, to stop affrays in progress to assaults of this kind and without any effective remedy.
4. I therefore set aside the acquittal of the three respondents and convict them under Section 353, Penal Code alone confirming their acquittal of all other offences. The learned Public Prosecutor says that a small fine will do. I sentence all the respondents to pay a fine of Rs. 5 each, or, in default, to one week's simple imprisonment each, as the circumstances of the case and the ends of justice do not demand a heavier sentence. Time till 3 P. M. on 15th December 1949 to pay the fine, Steps in default only thereafter.