1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Provincial Government against an acquittal of two accused Kaloo Khan and Jaisar Khan who were tried on a charge under Section 353, Penal Code by a Magitrate of Suri. The prosecution case was that a watcher constable of the district enforcement branch saw three carts driven by the two accused and another man Salu Khan each carrying six tins of kerosene oil. He asked them if they had permits and as they could produce none he directed them to proceed to Dubrajpur thana, showing his warrant of appointment. The cartmen attempted to bribe him but he refused to be tempted whereupon they in turn threatened to assault him. He then went on his bicycle and brought two chowkidar Nanda Lal and Patal and took the carts to the neighbouring village. Thereafter they proceeded towards the thana. As they reached the junction where the road branched off towards Adampore, the carters ignoring the constable turned their carts down the branch road to escape. The constable endeavoured to unyoke the cattle whereupon Kaloo Khan struck him and the carts began to move again. He was again assaulted by Kaloo and Jaisar. There was a further assault and finally the cartmen left with the carts and went to Adampore. The accused were eventually arrested and were sent up for trial in connection with the possession of the kerosene tins.
2. The trial Court has found the facts in favour of the prosecution but acquitted the accused on the ground that the constable had never arrested the accused, he had merely expressed an intention to arrest them by telling them to come to the thana. The Court held that as the constable did not arrest the accused he was acting beyond his jurisdiction in his attempt to unyoke the cart and therefore the carters in assaulting him while he was doing this had committed no offence. Even on the view expressed by the trial Court he should have found the accused guilty under Section 352, Penal Code arthey had no protection in view of the provisions of Section 99, Penal Code, but in our view the acts of the constable show that he had, in fact, arrested the men, as he was entitled to do on suspicion of their committing a cognisable offence. Section 46 (1), Criminal P.C. provides as follows:
In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
The fact that the accused eventually proceeded towards the thana showed that by their action they had submitted to their arrest. He was entitled to arrest them and take them to the thana. The accused therefore in endeavouring to escape and in assaulting the constable when he endeavored to prevent them from escaping were guilty of an offence under Section 353, Penal Code.
3. We therefore set aside the acquittal, convict the accused under Section 353, Penal Code, and sentence each of the accused to pay a fine of Rs. 50, in default rigorous imprisonment for two months.