Order: This Reference under section 438 of the Code of Criminal Procedure by the Additional Sessions Judge, Bijapur, raises an interesting question as to the right of a citizen to arrest a person who is drunk within the meaning of section 76 (i) (a) of the Mysore Prohibition Act and is incapable of taking care of himself. The accused was charge-sheeted along with eight others for offences punishable under sections 147, 342 and 323 read with section 149 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class, Jamkhandi, for being members of an unlawful assembly, for causing hurt and wrongfully confining one Police Constable Sangayya Bassayya Math on 14th June, 1962, at 11-15 p.m. Earlier, the accused had been arrested by the Police alleging that he was drunk and had committed an offence under the Mysore Prohibition Act. After medical examination he was released on bail and left the Police Station. While going by the road, Sangayva heard A-1 abusing the Police. He accordingly questioned him as to the reason forabusing the Police, then accused No. 1 and others who were there already, dragged him to the Police Station and presented him before the Head Constable, complaining that Sangayya was drunk and that action should be taken against him. The Head Constable asked A-1 and others to give a complaint. Suspecting that the Head Constable might not take any action, the accused and party took Sangayva to the Civil Hospital where they requested the Doctor to examine the accused. The Doctor asked them to bring a ‘yadi’ (Note) from the police. Thereafter, the accused and others dragged the complainant to the house of a Pleader by name Gadgil, then to the Post Office where they sent a message to superior Police Officers, then to the Police Officer’s house and finally to the Police Station. It is with these allegations that the accused and others were charge-sheeted for the offences mentioned above. The Magistrate acquitted all other except the present accused in respect of whom the Reference has been made. In his examination under section 342 of the Code of Criminal Procedure, the accused admitted that he had caught hold of Sangayya, dragged him to the Police Station and other places as alleged by the prosecution. The Magistrate acquitted all other except the present accused in respect of whom the Reference has been made. In his examination under section 342 of the Code of Criminal Procedure, the accused admitted that he had caught hold of Sangayya, dragged him to the Police Station and other places as alleged by the prosecution. But on the evidence adduced by the prosecution, the Magistrate came to the conclusion that the accused alone was guilty under section 342 of the Indian Penal Code, convicted him of the offence and sentenced him to pay a fine of Rs. 50. He acquitted accused Nos. 2 to 9 of all the charges framed against them. It appears from the judgment of the Magistrate that the Pleader appearing on behalf of the accused contended that the action of the accused was permitted by section 59 of the Code of Criminal Procedure as also by section 79 of the Indian Penal Code. The learned Magistrate came to the conclusion that the accused was not entitled to the benefit of any of those sections as the requirements of law contained therein had not been satisfied. The accused then presented Criminal Revision Petition No. 24 of 1964 in the Court of the Sessions Judge, Bijapur. The Petition was heard by the First Additional Sessions Judge. The learned Sessions Judge agreed with the conclusions on facts arrived at by the Magistrate. He held that Sangayya the Police Constable was found drunk and was incapable of asserting himself, that the accused had taken him first to the Police Station and then to the Civil Hospital, to the house of the Pleader, to the Post Office, to the Magistrate’s house and to the office of the Commandant of the Home Guards before he was taken for the second time to the Police Station. He, however, relied upon the decision of the Madras High Court In re, Ramaswami Ayyar1, and held that the circumstances disclosed by the evidence of P.W. 4 attracted the provisions of section 81 of the Indian Penal Code. He was further of the view that the fact that the complainant was first taken to the Police Station and then to the other places and then back to the Police Station again did not indicate that 1 here was wrongful confinement on the part of the accused. He was further of the view that the fact that the complainant was first taken to the Police Station and then to the other places and then back to the Police Station again did not indicate that 1 here was wrongful confinement on the part of the accused. He has accordingly made this Reference with a recommendation that the conviction and sentence passed against the petitioner be set aside. In this Court, Mr.V.S. Kulkarni has appeared on behalf of the accused, and has sought to support the recommendation made by the Additional Sessions Judge. The Government Pleader has opposed the Reference on the ground that the learned Sessions Judge had taken an erroneous view of the law. The learned Government Pleader has pointed out that the Sessions Judge had overlooked one important finding recorded by the trial Court to the effect that the action of the accused, who had been arrested earlier by the Police for being drunk, was actuated by malice, and the very fact that the accused had taken Sangayya to the house of his Pleader, Home Guard Commandant, to the house of the Sub-Inspector of Police and to the house of the Magistrate indicated that he had a grievance and wanted to wreak vengeance against the complainant. It was for this reason that the learned Magistrate had declined to extend the benefit of section 79 of the Indian Penal Code to the accused. Mr. V.S. Kulkarni, the learned Counsel for the petitioner, contended that the accused had every right to arrest the Constable under section 59 of the Code and that even otherwise, the action of the accused was protected either by section 79 or 81 of the Indian Penal Code. Before discussing the questions of law raised by the learned Counsel for the petitioner, I would like to point out that on facts the learned Sessions Judge was in error in holding that the act of the accused in taking Sangayya to the Police Station and then to the other places before he was finally brought back to the Police Station would not amount to wrongful restraint or wrongful confinement. Wrongful restraint and wrongul confinement are defined by sections 339 and 340 of the Indian Penal Code- "339. Wrongful restraint and wrongul confinement are defined by sections 339 and 340 of the Indian Penal Code- "339. Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. 340. Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said ‘ wrongfully to confine’ that person. It cannot be doubted that the accused first caught hold of Sangayya at about 11-15 p.m., dragged him to the Police Station and thereafter took him to the several places until he produced him again at the Police Station sometime about 1-30 a.m. at the instance of the Head Constable Narayan Kadam who was on patrol duty. This conduct of the accused clearly amounts to wrongful confinement. Sangayya had been caught hold of and virtually kept under custody for two hours or more and was thus prevented by the accused from going away. Whatever the duration of the restraint might be, the restraint, proved, of Sangayya was complete and he was not permitted to go during the whole of the period, being forcibly kept under his cus:ody by the accused. The learned Counsel for the accused contended that Sangayya had not filed any complaint when he was brought to the Police Station immediately either on the first occasion or on the second occasion and that circumstance was indicative of the fact that there was no wrongul confinement. There is no force in this argument. It appears, as found by the learned Sessions Judge, that Sangayya was drunk and having been caught in that condition and knowing full well that he was a Police Constable, he must have become wholly unnerved so that he was detained in his custody by the accused for nearly two hours or more. The learned Judge’s view that there was no wrongful confinement cannot be supported on facts. It was argued by the learned Advocate for the accused (petitioner) that under section 59 of the Code he had a right to arrest the accused and that he was not therefore guilty of any offence. The learned Judge’s view that there was no wrongful confinement cannot be supported on facts. It was argued by the learned Advocate for the accused (petitioner) that under section 59 of the Code he had a right to arrest the accused and that he was not therefore guilty of any offence. While sections 42 and 43 of the Code require a private citizen to assist the Magistrate and the Police under the circumstances mentioned therein, it is only section 59 of the Code which empowers a private citizen to arrest. "Sub-section (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 Police Officer, take such person or cause him to be taken in custody to the nearest Police Station. * * * *" Sub-sections (2) and (3) are not relevant for our purpose. From the wording of sub -section (1) it is obvious that the action of a private citizen in arresting another can be protected only if the three requirements of the section are satisfied, viz... (i) the person arrested must have committed the offence within the view or in the presence of the arresting citizen; (2) the offence committed by such person should be non-bailable and cognizable or such a person must be a proclaimed offender and (3) as soon as he is arrested, he must be made over to the Police officer without unnecessary delay. In the present case, it is the concurrent finding of both the Courts that Sangayya was found drunk on the road and was not capable of taking care of himself. Thus Sangayya was guilty of the offence punishable under section 76 (1) (a) of the Mysore Prohibition Act, 1961. He would be guilty of the offence under clause (b) of section 76 (1) if he had behaved in a disorderly manner under the influence of drink. Section 76 of the Act lays down that in the absence of any provisions in the Act, all offences shall be cognizable and the provisions of the Code of Criminal Procedure, 1898, with respect of cognizable offences shall apply to offences under the Act. Section 76 of the Act lays down that in the absence of any provisions in the Act, all offences shall be cognizable and the provisions of the Code of Criminal Procedure, 1898, with respect of cognizable offences shall apply to offences under the Act. It is significant to mention that sub-section (2) expressly lays down that “offences under section 58, section 59 or section 60 shall be non-bailable”. It thus follows that the offence under section 76 (1) whether under clause (a) or (b) is not non-bailable, though cognizable. A private citizen has therefore no right to arrest a drunken person in the position of Sangayya, apart from the fact whether he was a Police Constable or a private citizen. Further, to claim protection under the section, the accused was under a legal obligation to make over Sangayya to the Police Officer without unnecessary delay. Though the accused took Sangayya to the Police Officer first, he did not hand him over to the Police Officer but took him away under the imaginary apprehension that no action would be taken by the Officer-incharge of the Police Station. There does not appear to be any foundation for this misapprehension of the accused. The learned Counsel for the petitioner has placed strong reliance on section 81 of the Indian Penal Code and on the decision of the Madras High Court in In re, Ramaswami Ayyar1. Section 81 reads as follows: “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation: It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.” It is difficult to see how the accused can claim the benefit of this section. The learned Magistrate has found that the accused was not acting in good faith. The learned Magistrate has found that the accused was not acting in good faith. It is an admitted fact that the accused himself had been arrested at about 10-30 p.m. on that very day for an offence under the Prohibition Act and had been released on bail only a few minutes before he took Sangayya into his custody. The manner in which he dragged the complainant from place to place including the house of his Pleader goes to show, as observed by the Magistrate, that he ‘had a grievance and wanted to wreak vengeance against the complainant. The learned Sessions Judge has not adverted to this aspect of the case. The factual finding of the Magistrate on this point appears to be incontrovertible from the admitted and proved facts in the case. Therefore, one of the essential elements for claiming the benefit of section 81 viz. the act being done without any criminal intention and in good faith, is wanting in this case. Further, the arrest cannot be said to have been effected for the purpose of preventing any harm to person or property. It is not the case of the accused that he either apprehended any danger to his person or property or that by leaving Sangayya free, he was likely to cause harm to any other person or any other property. There is, therefore, no basis for claiming the benefit of section 81. The learned Sessions Judge has relied upon the decision of the Madras High Court In re, Ramaswami Ayyar1. The facts and the law stated therein do not seem to have been considered carefully by the learned Sessions Judge. The appellant in that case was a Village Magistrate. On the day in question his attention was drawn to the misconduct of one Marigoundan who was very drunk and tore the sacred thread of one of the witnesses. He subsequently bit the Village Magistrate himself. It was therefore that the village Magistrate took Marigoundan into his custody with the help of many persons and removed him to the Police Station. Their Lordships acquitted the appellant on the ground that a private citizen has a right to arrest under the common law any person against whom there is a reasonable apprehension that he would commit a breach of the peace. Their Lordships acquitted the appellant on the ground that a private citizen has a right to arrest under the common law any person against whom there is a reasonable apprehension that he would commit a breach of the peace. The conclusion reached by their Lordships in that case is- “In this case we think that there was ample justification, on the facts as found for the appellant not as Village Magistrate but as private citizen, to put a restraint upon this drunken and disorderly person who was not only threatening a breach of the peace but was a danger to the villagers. The correctness of this decision came to be considered by the Full Bench in Gopal Naidu v. King Emperor1. I am in respectful agreement with their Lordships when they laid down that the Court in Ramaswami Ayyar’s case2 was not entitled to invoke the common law of England when the Criminal Law of India had been codified into the Indian Penal Code and the Criminal Procedure Code. On examining the facts in Ramaswami Ayyar’s case,2 their Lordships found themselves unable to agree with the grounds to be found in sections 81, 96 and 97 of the Indian Penal Code. After referring to sections 339 and 340 of the Indian Penal Code, Schwabe, C.J., observed- “..........So the arrest of any person when he has not been guilty of an offence for which arrest without warrant is permitted, prima facie is wrongful confinement of the person.......... The learned Sessions Judge has wholly overlooked this aspect of the two decisions and has sought to derive assistance from them, though they have no application to the facts of the case. The Advocate further contended that the accused could claim the benefit of section 79 of the Indian Penal Code. That section reads- ”79. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.” Relying upon this section, the learned Counsel for the petitioner submitted that the accused committed a mistake of fact in believing that the offence of which Sangayya was guilty was both cognizable and non-bailable and that therefore believed himself to be justified by law. There are two difficulties in the way of the accused for claiming the benefit of this section. Whether an offence is cognizable or non-cognizable, bailable or non-bailable is a question of law and any mistake committed about it would be a mistake of law. So if the accused thought that the offence was non-bailable, it would be a mistake of law and not a mistake of fact. Secondly, I have found above that the accused was not acting in good faith. Mr. Kulkarni has drawn my attention to the decision of the Patna High Court in Raghunath Das v. Emperor.3 The decision in that case turned on its own facts. There, the case of the prosecution was that one Awadha Behari and Shiva Prasad, both Police Constables,had gone to Lala Halwai for borrowing a frying pan. On Lala Halwai asking them to wait, Awadha Behari caught Lala Halwai. On coming to know of it, the neighbours flocked to the place and Awadh Behari fled away. Shiva Prasad was arrested. It was alleged by the prosecution that the accused Amir Baboo who was a respectable citizen living near the scene of occurrence advised the other accused to arrest Shiva Prasad. He was convicted under section 342 read with section 109 of the Indian Penal Code. In the first place, on facts the High Court found that there was no evidence of instigation and that the Magistrate’s observation that the accused ‘must have advised’ was no proof of instigation. The Court further found that in arresting Shiva Prasad the accused had acted in good faith, and that in thinking that Shiva Prasad had committed a non-bailable offence, there was only a mistake of fact on their part. I am unable to agree with the later view that believing an offence to be non-bailable or cognizable when in fact it is bailable or non-cognizable according to law can be held to be a mistake of fact; it is an erroneous view of the law. That apart, the accused in the present case has not at all acted in good faith and so he cannot claim the benefit of section 79. For the reasons aforesaid, I hold that the grounds on which the Reference is based are not sound in law and therefore reject the reference. S.V.S. ----- Reference rejected.