Kulwant Sahay, J.The petitioners have been convicted for an offence u/s 225" of the Indian Penal Code and sentenced to pay a fine of Rs. 25 each. The prosecution story is that on the night of the 27th of October 1923, the complainant Sakhichand Halwai was roused from his sleep by the falling of a box in one of the rooms of his house. Sakhichand is said to have got up and seen three men running away across the courtyard towards the north. Sakhichand is then said to have gone to the room and having perceive the presence of a man inside the room closed the door with a tatti and shouted "thief thief" upon which one Binhai who is one of the accused in the present case and two chaukidars Babu Jan and Kishuni came followed by the other accused. Binhai and Sakhichand are alleged to have gone inside, the room and after lighting a lamp to have found one Gena Tatwa, a servant of the petitioner Gokul Tatwa, hiding himself beside a kothi or granary. Sakhichand is said to have arrested Gena and the petitioners are alleged to have rescued Gena from the custody of Sakhichand. The petitioners pleaded not guilty and stated that the charge brought a against them was false. The learned Deputy Magistrate who tried the case found that the prosecution story was true in material particulars, and he accordingly convicted the petitioners and sentenced them as seated above.

2. Two points have been taken by the learned Counsel for the petitioners. The first point taken by him is that upon the findings the custody of Gena Tatwa was not lawful custody. Secondly, it has been contended that Gena Tatwa was tried on the charge of theft and acquitted and it was found that he had committed no offence, and under those circumstances a charge of rescuing him from lawful custody cannot be sustained.

3. As regards the first point, Section 59 of the Cr.P.C. authorises any private person to arrest any person who in his view commits a non-bailable and cognizable offence. It has been argued that in the present case according to the prosecution story Gena Tatwa did not commit any non-bailable and cognizable offence in the view of Sakhichand Halwai and that, therefore, the arrest of Gena Tatwa by Sakhichand Halwai was not lawful. On the other hand it has been argued by the learned Government Advocate that the facts do show that Gena Tatwa did commit a non-bailable and cognizable offence, namely, the offence u/s 379, Indian Penal Code, in the view of Sakhichand Halwai, and, therefore, the arrest was lawful. The determination of this question depends on the meaning of the words "in his view" in Section 59 of the Code. In my mind these words mean "in presence of" or "within sight of" and the section provides that if an offence is committed in the presence of or within the sight of any private person then such person is entitled to arrest the person committing such offence. It is only when a non-bailable and cognizable offence is committed in the sight and in the presence of a private person that such person is entitled to arrest the offender. The learned Government Advocate, however, argues that the words in his view mean "in his opinion," and that although the offence might not be committed within the sight or in the presence of a private, person but if such person is of opinion that such offence has been committed he is entitled to arrest. I am unable to agree with this interpretation. To my mind the Legislature did not intend to give a private person authority to arrest an offender if, upon information received or r from other circumstances appearing before him he is of opinion that an offence has been committed. If lam correct in my interpretation of Section 59 of the Code, then the arrest to Gena Tatwa by Sakhichand could not be a lawful arrest, because no offence of theft was committed by Gena in the presence and within the sight of Sakhichand Halwai, all that was found was that Gena Tatwa was found hiding himself behind a kothi in the house, and that, would not entitle Sakhichand to arrest him unless his hiding could amount to a non-bailable and cognizable offence. In the second pleas the learned Counsel for the petitioners has produced before me a certified copy of the judgment of the case in which Gena Tatwa was charged with the offence of theft and was acquitted. It being found by a competent Court that Gena Tatwa did not commit the offence of theft, it follows that his arrest by Sakhichand was not lawful. It has been argued by the learned Government Advocate that the fact of Gena Tatwa being acquitted on the charge of theft will not make the arrest by Sakhichand unlawful. If it is shown that in the view of Sakhichand or in other words in his opinion Gena Tatwa did commit the offence. This depends upon the interpretation of the words "in his view" and according to the, interpretation placed upon these words by me the arrest of Gena Tatwa cannot be said to be lawful. In this view of the case, I am of opinion that the conviction of the petitioners u/s 225 of the Indian Penal Code cannot be sustained.

4. The conviction and sentence are set aside. The fines, if paid, will be refunded.