Author: Shraddha Jindal
(1888) ILR 12 Bom 377
Mr. Justice Birdwood
Mr. Justice Parsons
The present case of “Bhawoo Jivaji vs Mulji Dayal” explains that what comes under the ambit of “wrongful restraint and confinement” and why a public servant who is on duty cannot be held liable for it.
Section 79 of Indian Penal Code, 1860 says that “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”.
Section 99 of Indian Penal Code clearly states that “there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office”.
The complainant was carrying some clothes with him and going on his way. A police constable (respondent) saw the complainant and thought that he was carrying some stolen property. On the basis of his suspicions he went to the complainant and ask him about the clothes he was carrying with him. The complainant gave him answers but the police constable was not satisfied with his answers so he told the complainant that he wants to inspect the clothes, for that the complainant refused. This caused a scuffle between both of them because the constable suspecting some stolen property with the complainant and the complainant denied the constable to inspect them. The constable arrested the complainant on the basis of his suspicions and took him to the police station. The inspector of Police released the complaint. After that the complainant filed a case of wrongful restraint and confinement against police constable.
ISSUES AND FACTS OF LAW:
The complainant filed the case of wrongful restraint and confinement and claimed that he was simply going on his way but the constable stopped him wrongfully and was suspecting him as a thief while he was not caring any stolen property with him. After denying the constable took him into him custody, arrested him and took him to the police station.
The constable argued that when he suspected some stolen property with the complainant, he told him to show his property for which he denied and assaulted him (constable). That is why he arrested the complainant. But for this the complainant said that he assaulted the constable in private defence.
Now the court had to see that whether it was wrongful restraint and confinement or not and whether the constable is liable for the said offences or not.
The court said that even though the acts of the accused (constable) cannot be said “strictly justified by law” but still the complainant had no right of private defence in this case because the accused was an on duty public servant and his acts were not grievous at all which can cause any apprehension of death or grievous hurt.
The court also held that when the constable was asking the questions to clear his doubts and situations, it was a good faith and the constable will be protected under section 79 of Indian penal code, 1860.