JUDGMENT Khare, J. - This is a criminal appeal from an order of acquittal and is pending before a learned single Judge of this Court. He has referred the following three questions for decision by a Division Bench of this Court- (1). Is the power of a private person u/s 59 of the Code of Criminal Procedure to arrest another who, in the view of that person, commits a non-bailable and cognizable offence, confined to the time when or immediately after the said offence is committed and/or thereafter in the course of a pursuit undertaken immediately after commission of the offence, or extends to any time afterwards even though no such pursuit had been undertaken or if undertaken has been given up? (2). In case the answer to the aforesaid question is that the power extends to any time afterwards, even though no pursuit for arrest had been undertaken or, if undertaken, had been given up, is the exercise of such power limited by any considerations, or is unqualified? (3). If the exercise of such power is limited by any considerations, what is the nature of these considerations? 2. The facts of the case leading to this appeal might be briefly stated as follows. On 3-5-1963, Suresh Chandra (Respondent) had lodged a report at police station Hazaratganj, Lucknow, against the Appellant Vishwa Mitra Sharma Under Sections 452/323 IPC. Six days later, i.e., on 9-5-1963, Suresh Chandra (Respondent) accompanied by certain other persons mat Vishwa Mitra Sharma (Appellant) just outside Haldaur railway station in the district of Bijnor. Suresh Chandra, with the help of certain other persons, arrested Vishwa Mitra Sharma and first he took him to his house and from there to police station Amhera and handed him over to the police after lodging a report and making it clear in his report why he, as a private citizen, had himself made that arrest. Vishwa Mitra Sharma initiated a counter action against Suresh Chandra and others Under Sections 147/323/342 IPC challenging their right to arrest him and keep him in their custody. The question which has, therefore, arisen for consideration in the present appeal is whether Suresh Chandra, as a private citizen could exercise his powers u/s 59 Code of Criminal Procedure six days after the cognizable offence, of which he was an eye-witness, had been committed. 3. The question which has, therefore, arisen for consideration in the present appeal is whether Suresh Chandra, as a private citizen could exercise his powers u/s 59 Code of Criminal Procedure six days after the cognizable offence, of which he was an eye-witness, had been committed. 3. Section 59 of Code of Criminal Procedure reads as follows- (1) 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. (2) If there is reason to believe that such person comes under the provisions of Section 54, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non-cognizable offence and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 57. If there is no sufficient reason to believe that he has committed any offence, he shall be at once released. It is clear from a perusal of this section that its provisions enable a private person to arrest another who- (a) in his view commits a non-bailable and cognizable offence, or (b) is a proclaimed offender (Section 87 Code of Criminal Procedure). 4. The main question for consideration is what is the import of the word "commits" occurring in Sub-section (1) of Section 59 Code of Criminal Procedure-whether it necessarily implies that the power to arrest the offender granted to a private person u/s 59 Code of Criminal Procedure must be exercised at the time when, or immediately after, such offence has been committed, or whether there is no time limit and such power continues to subsist and could be exercised by the private per on at any time thereafter according to his choice or convenience. 5. We have heard the learned Counsel for the parties at some length. 5. We have heard the learned Counsel for the parties at some length. It was submitted by Sri P.C. Chaturvedi, learned Counsel for the Respondents, that a mere reading of Section 59 Code of Criminal Procedure will show that no time limit has been fixed for the exercise of such power by a private person and therefore, the power in him to arrest the offender and take him to the nearest police station must continue till the offender has been arrested by some person or authority in connection with that offence. It has further been argued that although the word used in Section 59 is "commits" that word must be deemed to mean "has committed" for the simple reason that in a vast majority of the cases it is only after the contemplated offence has been committed that a private person can arrest the offender. 6. On the other hand, the argument by the learned Counsel for the Appellant is that the use of the word "commits" in Section 59 clearly indicates that such power of a private person must be exercised either while the offence was being committed or at the most immediately thereafter, in the course of pursuit necessary for effecting the arrest. It has also been contended that in case such extraordinary power granted to a private person is not restricted in point of time very serious consequences might follow because on the one hand the private person in whose view the non-bailable and cognizable offence is committed could claim that he could effect the arrest and use necessary force to achieve that object and on the other the accused person who was being arrested might think that he was being wrongfully subjected to arrest and resist his arrest and even claim protection u/s 96 of the Indian Penal Code. It is, therefore, argued that the legislature intended to restrict the scope of Section 59 Code of Criminal Procedure and to confine it to the point of time when the offence was being committed (or immediately thereafter till pursuit was made for effecting the arrest) and that it is for that reason that the legislature has used the word "commits" in Section 59 Code of Criminal Procedure. The learned Counsel has relied upon the following two cases in support of his argument- D. Jones Shield Vs. The learned Counsel has relied upon the following two cases in support of his argument- D. Jones Shield Vs. N. Ramesam and Others, AIR 1955 AP 156 and Amarendra Nath Chakrabarty and Another Vs. State of Bihar, AIR 1955 Patna 106 . 7. The use of the word "commits" in Section 59 Code of Criminal Procedure will show that the intention of the legislature was clearly to restrict this power in a private person to the point of time when the offence was being committed or has just been committed. If the intention of the legislature had been not to restrict the powers to arrest by a private person in point of time it should have used the words "had committed" in place of or in addition to the word "commits" occurring in that section. 8. At Common Law in England the power of a private person to arrest is limited to cases where treason or felony has been actually committed or attempted or where there is immediate danger of treason or felony being committed or where a breach of the peace has been actually committed or is reasonably apprehended. Anyone may without a warrant arrest a person whom he sees on the point of committing or attempting to commit treason or felony, but there is no power of arrest if the attempt has ceased-vide Paras. 633-634, Halsbury's Laws of England, Simond's Ed., pp. 342-343. 9. The same appears to be the schme under the Code of Criminal Procedure. The power to arrest has been given to the following persons under the various provisions of that Code: (1) To a police officer under a warrant Under Sections 77 and 79 Code of Criminal Procedure and without a warrant u/s 54. He may also arrest under written orders of an officer in charge of a police station Under Sections 56 and 107 Code of Criminal Procedure or under the orders of a Magistrate Under Sections 64 and 65 Code of Criminal Procedure and in non-cognizable offences u/s 57 Code of Criminal Procedure. (2) To a superior police officer u/s 151 Code of Criminal Procedure. (3) To an officer in charge of a police station Under Sections 55 and 157 Code of Criminal Procedure. (4) To a Magistrate Under Sections 64 and 65 Code of Criminal Procedure. (5) To a military officer Under Sections 130 and 131 Code of Criminal Procedure. (2) To a superior police officer u/s 151 Code of Criminal Procedure. (3) To an officer in charge of a police station Under Sections 55 and 157 Code of Criminal Procedure. (4) To a Magistrate Under Sections 64 and 65 Code of Criminal Procedure. (5) To a military officer Under Sections 130 and 131 Code of Criminal Procedure. (6) To a private person without warrant u/s 59 and under a warrant Under Sections 77 and 78, under orders of a police officer u/s 42 and under orders of a Magistrate Under Sections 42, 64 and 65 Code of Criminal Procedure. 10. The scheme of the Code of Criminal Procedure, therefore, appears to be that a private person may arrest any person committing in his view a cognizable and non-bailable offence, but if he does, not care to do so just at that time (or after chase, if necessary), he can subsequently effect the arrest of that person only if he has been declared to be an absconder u/s 87 Code of Criminal Procedure or if the private person has been granted a warrant Under Sections 77 and 78 Code of Criminal Procedure or is acting under the orders of a police officer u/s 42 Code of Criminal Procedure or of a Magistrate Under Sections 42, 64 and 65 Code of Criminal Procedure. An eye-witness of the occurrence, if he does not act immediately to effect the arrest of the accused person committing a cognizable and non-bailable offence in his view, cannot do so later unless the accused person has been declared to be an absconder or orders have been given to him by a police officer or a Magistrate. The positive provisions contained in the Code of Criminal Procedure and referred to above by implication restrict the power of a private person to arrest an offender. The private person must act within the ambit of the power conferred on him under the provisions of the Code and by no means beyond it. 11. There is no force in the contention that the persons present at the time of the Commission of the offence must remain inactive till the accused has done all acts to complete the contemplated offence. The attempt to commit a non-bailable and cognizable offence is also an "offence" as defined in Section 40 IPC. 11. There is no force in the contention that the persons present at the time of the Commission of the offence must remain inactive till the accused has done all acts to complete the contemplated offence. The attempt to commit a non-bailable and cognizable offence is also an "offence" as defined in Section 40 IPC. A person noticing that felony was attempted to be committed or was being committed or that a murder was being attempted could do much service to the society by arresting the offender and thus preventing further harm being done. The offender in such cases would know why he was being arrested and therefore it may not even be necessary to tell him why he was being arrested. By making the arrest immediately after the occurrence or when one offence had been committed and another and more serious offence was likely to be committed a private person in whose view the offence had been committed or was about to be committed could stop further harm by effecting the arrest of the offender. However, if such power in a private person is allowed to subsist for days and weeks after the offence has been committed serious consequences might follow. For example- (1) It might suit a private person to arrest the Mayor of Bombay just before he is going to attend an important meeting of the Corporation. He might have lodged a report of some cognizable offence against the Mayor in any distant place in Bengal which the Mayor might have visited a few days earlier and then choose to arrest the Mayor in Bombay just at the time when it suited him. Subsequently the Mayor might be acquitted of the charge in respect of that cognizable offence on the ground that the prosecution had failed to establish the charge against him but he will not be in a position to successfully proceed against the private person who arrested him, unless he can further prove that the charge against him was without any reasonable or probable cause and malicious. (2) An offender, not being a proclaimed offender, may not even know that he is accused of having committed any cognizable offence or the person, who seeks to arrest him, was an eyewitness of the occurrence. (2) An offender, not being a proclaimed offender, may not even know that he is accused of having committed any cognizable offence or the person, who seeks to arrest him, was an eyewitness of the occurrence. Not being definite as to why he was being arrested by the private person he could very well resist that arrest resulting in serious injuries either to himself or to the private person and others who might go to arrest him. 12. Such power if deemed to be unrestricted in point of time may very well be abused by a person because it will be in his sweet discretion as to when, where and in what circumstances he may arrest the offender. The liberty of the private individual guaranteed by the Constitution of India will not be safe if such extraordinary power is given to private persons to be exercised by them later according to their convenience or choice. 13. Chapter V of the Code of Criminal Procedure deals with the subject of arrest, escape and retaking. Section 46 lays down that in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action and if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. It has also been provided in the same section that a person effecting arrest will have no right to cause the death of the person sought to be arrested if he is not accused of an offence punishable with death or imprisonment for life. It is, therefore, clear that the person lawfully trying to effect arrest while using all means necessary to effect the same may even cause the death of any person who is accused of an offence punishable with death or imprisonment for life. 14. Section 97 IPC provides that every person has a right (subject to the restrictions contained in Section 99) to defend his own body and the body of any other person against any offence affecting human body. 14. Section 97 IPC provides that every person has a right (subject to the restrictions contained in Section 99) to defend his own body and the body of any other person against any offence affecting human body. The right of private defence of the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues (vide Section 102 IPC). A person exercising the right of private defence may even cause the death of the offender under certain conditions (vide Section 100 IPC). 15. In our opinion Section 59(1) Code of Criminal Procedure should be so interpreted as not to unnecessarily jeopardize the liberty of the individual. 16. There is some divergence of opinion between the various High Courts on the question of the interpretation of the words "in his view" occurring in Section 59(1) of the Code of Criminal Procedure. The Calcutta vide Bolaide v. Emperor ILR 35 Cal. 361, Lahore vide Alawal and Anr. V. Emperor AIR 1922 Lah. 73, Patna vide Abdul Aziz @ Zalim Khan Vs. Emperor, AIR 1933 Patna 508 and Sind vide Faqiro v. Emperor AIR 1947 Sind 107 High Courts, while interpreting those words, held that a person, who was not an eyewitness of the occurrence, could in no circumstance make the arrest of the offender u/s 59(1) Code of Criminal Procedure. It was considered to be immaterial that the private person was a Daffedar and had reached the place of occurrence while the trees cut and stolen were being removed Bolai De v. Emperor, or had reached there immediately after the occurrence on hearing an alarm being raised by an eyewitness Alawal v. Emperor and Abdul Aziz v. Emperor. It was held in Faqiro v. Emperor that a private person exercising his power u/s 59(1) of the Code of Criminal Procedure could not ask a person, who was not an eyewitness, to effect the arrest of the offender. 17. Our High Court, has differed from the view expressed in all the four cases mentioned in the preceding paragraph. It was held in the case of Sheo Balak Dusadh Vs. 17. Our High Court, has differed from the view expressed in all the four cases mentioned in the preceding paragraph. It was held in the case of Sheo Balak Dusadh Vs. Emperor, AIR 1948 All 103 that Section 59(1) Code of Criminal Procedure had to be read keeping in view the provisions of Section 46 Code of Criminal Procedure, It is mentioned in the latter section that "all means necessary to effect the arrest" could be used. It was held that these words clearly implied the power to: (a) chase the offender, and (b) to get the offender arrested by others. The same view was reiterated in the Full Bench case of Nazir Vs. Rex, AIR 1951 All 3 and it was held that those persons who had during the courses of chase come to help in effecting the arrest, either after being expressly asked or on hearing the general alarm raised by eye-witnesses, were also entitled to chase the offender and to effect his arrest. In a latter case the Calcutta High Court [vide Gouri Prasad De v. Chartered Bank of India, Australia and China AIR 1925 Gal 884] has taken the view that a private person, being an eye-witness of a cognizable offence, could authorise others to help him in effecting the arrest. Andhra Pradesh High Court [vide In re Kolavennu Venkayya] and in a latter decision the Patna High Court also [vide Amarendra Nath Chakrabarty v. State of Bihar] have taken a view similar to that taken by this Court in the Full Bench case of Nazir v. Rex. The view taken by this Court in the Full Bench case of Nazir v. Rex (and now accepted by some other High Courts also) does not help us to interpret the meaning of the word "commits" occurring in Section 59(1) Code of Criminal Procedure. However, there are two cases, one of Patna High Court and the other of Andhra Pradesh High Court, directly on that point. In the case of Amarendra Nath Chakrabarty v. State of Bihar the person accused of having committed the offence of rape on a minor girl was arrested by the eye-witnesses immediately after the occurrence. He was taken to his brothers, who chastised him. Thereafter the accused was allowed to go away. Some one lodged a report of the occurrence at the police station. He was taken to his brothers, who chastised him. Thereafter the accused was allowed to go away. Some one lodged a report of the occurrence at the police station. Just a few hours thereafter some eye-witnesses of the occurrence again arrested the accused person. It was held that in the circumstances of the case the second arrest was not authorised by the provisions of Section 59(1) Code of Criminal Procedure and was illegal. It was further observed that the provisions of Section 59(1) of the Code of Criminal Procedure are extraordinary in nature and must be construed in a manner so as not to enlarge the powers of a private individual to arrest a person. In the case of In re Kolavennu Venkayya while considering the import of the word "commits" occurring in Section 59(1) Code of Criminal Procedure it was observed that in no circumstance that word could be held to be equivalent to the words "had committed". The arrest made by an eyewitness fifteen days after the occurrence was held to be illegal and not authorised under the provisions of Section 59(1) Code of Criminal Procedure. 18. We respectfully agree with the view taken in the two cases mentioned above. 19. In the result our reply to the questions referred to the Division Bench are as follows: (1) The power of a private person u/s 59 Code of Criminal Procedure to arrest another, who in the view of that person commits a non-bailable and cognizable offence, is confined to the time when, or immediately after, such offence is committed and/or thereafter in the course of a pursuit undertaken immediately after the commission of the offence. It does not extend to any time afterwards even though no such pursuit had been undertaken or if undertaken had been given up. (2) In view of the reply to question (3) No. (1) these questions do not arise.