1. This is a rule calling upon the Deputy Commissioner of Sylhet to show cause why the convictions of the petitioners under various Sections of the Penal Code should not be set aside. The point of law involved in the case is the legality of the arrest of petitioner 7. It is perhaps unfortunate that the Additional District Magistrate in his letter does not show any cause, nor has the Deputy Legal Remembrancer been asked to appear. The occurrence took place in connexion with an attempt made by three constables to arrest certain persons who were accused in a certain case of Ajmirganj Police Station. There were no warrants of arrest. The officer-in-charge handed over what are known as hukumnamas under the provisions of Section 56, Criminal P.C. Constable Rais Ali, P.W. 2, arrested petitioner Ayub Ali. A rescue party was organized by petitioner Raja Mia, who had obviously done his best to discourage the police party from making any arrest. Ayub Ali was successfully rescued. The rescuing party then made an attack on the constable and beat him severely. It does not appear whether the precise point as to the legality of the arrest was specifically raised at the trial. The main defence was that, the petitioner Ayub Ali was never arrested at all and that the whole prosecution case was false. There was also a point made with regard to the description of the wanted man in the hukumnama. The point was however raised in the lower Appellate Court and is based upon omissions in the prosecution evidence.
2. The learned Judge rightly held that there was no evidence to show that the provisions of Section 56 had been complied with. P.W. 2 did not say that before making the arrest he notified to the petitioner Ayub Ali the substance of the order. The prosecution accordingly failed to prove that an arrest could be legally made under Section 56. The learned Judge however held that there was a legal arrest under Section 54. The difficulty is that there is no evidence to support this view either. The constable does not say that he had information or suspicion that the petitioner Ayub Ali was concerned in a cognizable offence. The officer-in-charge of the thana does not say that he gave any information of the matter at all. On the case made at the trial the prosecution wanted to rely on the hukumnama and the hukumnama alone. It is therefore only natural that there should be no evidence to bring the case within Section 54. The convictions accordingly cannot be supported. Two further questions however remain.
3. The first question is whether we should order further evidence to be taken. It may be that the substance of the hukumnama was read over to the petitioner Ayub Ali. It may also be that P.W. 2 did have credible information to the effect that Ayub Ali was concerned in a cognizable offence. We cannot however close our eyes to the danger of allowing evidence on this point to be introduced at the appellate stage. The temptation to fill in blanks would be extremely strong. We are accordingly not prepared to proceed any further in the matter. The other question refers to the petitioners Tayab Ali and Ambar Ali, who have been convicted for actually beating the constable. They chased him and beat him very severely. This attack was not concerned with the actual rescue of Ayub Ali and they were undoubtedly guilty of the minor offence punishable under Section 323, I.P.C.
4. In the result we set aside the convictions and sentences passed upon Ambar Ali and Tayab Ali under Section 147 and of the petitioner Tayab Ali under Section 225, I.P.C. We alter their convictions under Section 332 into one under Section 323, I.P.C., and maintain the sentences. These two petitioners must surrender to their bail and serve out the remainder of their sentences. In the case of the other petitioners the convictions and sentences are set aside and they will be discharged from their bail.
Mohamed Akram, J.
5. I agree.