Sarjoo Prosad, C.J.
1. The petitioners have moved against the order of their conviction passed Under Section 353 of the IPC sentencing each of them to rigorous imprisonment for a period of two months. The prosecution case is that on 18 5 1955, at about 7 30 P.M., Sri Subodh Chandra Das, Sub Inspector of Police attached to Golaghat Police Station, was on patrol duty with a Section of the armed Police. He got a report that some public nuisance was being created by several drunkards in the town area, and he was told that after creating disturbance, those people had boarded a bus and were fleeing from the locality.
The Sub Inspector followed those persons, who are said to be the petitioners, and he caught up with them near the gate of one Ratan Singh, and when he started questioning them for the purpose of making an arrest, it appears that the petitioners resisted the officer and caused certain injuries on his person. The allegation further was that they snatched away the officer's shoulder badge, one fountain pen and one wrist watch, from his person, but this part of the prosecution story has not been accepted by the two Courts below, and, therefore, the charge Under Section 379, IPC against the petitioners could not be sustained.
2. The Court of appeal below appears to have thought that Under Section 34, paragraph (6) of the Police Act, the Police officer had not only the right but it was his duty to arrest the petitioners. Section 34 empowers the Police officer to take into custody, without a warrant, any person who, within his view, commits any of such offences as being found drunk or riotous or incapable of taking care of himself. The allegation in this case is that the complainant S. C. Das was informed by one Kamakhya Prasad (P.W. 6) that there was a quarrel between one Puinarneshi (P.W. 5) and some persons, meaning the petitioners, and that a nuisance was being created by those persons. It was on this information that the complainant pursued the petitioners, who were then travelling in a bus, and wanted to effect their arrest, when the incident complained of happened.
It is, therefore, quite obvious, on the prosecution case itself, that the occurrence had not happend within the view of the Police officer concerned, and, as such, the officer had no power to effect the arrest of the petitioners. The learned Sessions Judge, therefore, was not justified in observing that, in the circumstances, the complainant had any lawful authority Under Section 34 of the Police Act, to effect an arrest even assuming that they might have been guilty of some riotous behaviour against Purnameshi Teli some time earlier. Purnameshi Teli, if he had any grievance against them, could as well lodge a complaint and proceed against the petitioners according to law. Section 34 of the Police Act did not give any authority to the Police officer to pursue the petitioners and arrest them, even though no such offence as alleged or contemplated by Section 34 of the Act was said to have been committed within his view.
It is true that the doctor found, on later examination, that two of the petitioners, namely, Mahendra Singh and Bhim Teli, were under the influence of liquor, but this fact, by itself, does not show that they were actually drunk or that they had committed any riotous act at the time when the Police Officer intended to question them or to effect their arrest, except to resist the attempt of that officer in arresting them or in seeking to detain them. It therefore, the petitioners resisted the questioning by the complainant or the attempt to arrest them, in course of which the complainant is alleged to have received some injuries on his person, the petitioners cannot be held guilty of any offence within the meaning of Section 353 or Section 352, IPC In my opinion, the conviction is unjustified and cannot be upheld. The order of conviction and sentence must, therefore, be set aside and the Rule made absolute.