1. This Rule is directed against the decision of the learned Sessions Judge, 24-Pergannas, dated 11th February 1943, whereby he affirmed the conviction of the petitioners by Mr. Ahammed, Magistrate of Alipore, under Section 41, Calcutta Suburban Police A Act (2 of 1866) and Section 853, Penal Code. The admitted facts of the case are briefly as follows: On the night of 10th August 1942, at about 10 P.M. the petitioners were found drinking and quarrelling at a place near the Kalighat Temple. They were seen by some members of the Civic Guard who asked them to desist, but, as they refused to do so, they were arrested. They then ran away to take shelter in a dala shop where they were followed by the members of the Civic Guard. An affray took place in the shop during the course of which a slight injury was inflicted on one of the Civic Guards. The petitioners were in due course placed on their trial before Mr. Ahammed and were convicted as already mentioned.
2. In the first place, it has been argued by the learned advocate for the petitioners that they should not have been convicted under Section 41, Calcutta Suburban Police Act (2 of 1866). With regard to this point, however, it appears that they were charged with having been guilty of riotous behaviour in a public street. There are findings of fact in the judgment of the learned Magistrate to the effect that they were actually guilty of such behaviour, and these findings appear to have been accepted by the learned Sessions Judge. With regard to this point, we do not think that there is any substance in the contention which has been put forward on behalf of the petitioners. The most important point which has been raised in this case is in connexion with the conviction of Jogendra Mohan De under Section 353, Penal Code. With regard to this aspect of the case, the learned advocate for this petitioner contends that his client's conviction was illegal in view of the fact that the members of the Civic Guard who attempted to arrest him were not public servants within the meaning of Section 21, Penal Code. He further maintains that, even if it could be argued that they were public servants, the Civic Guard had never been called out for duty under the provisions of Section 4 of Ordinance 8 of 1940, and that, in these circumstances, the Civic Guards who attempted to arrest the petitioner could not be said to be acting in the execution of their duty within the meaning of Section 353, Penal Code.
3. Certain papers have been placed before us by Mr. Ahmad on behalf of the Crown on the basis of which he contends that the Civic Guard in Calcutta has been properly constituted under Ordinance 8 of 1940 with effect from 26th April 1941. He also argues that these papers indicate that the Civic Guard had been duly and properly called out for duty as required by Section 4 of the Ordinance read with paras. 5, 6 and 7 of the rules framed thereunder. The first of these papers on which Mr. Ahmad relies is a letter, dated 26th April 1941, which was addressed by the Commis-sioner of Police to the Deputy Secretary to the Government of Bengal in the Homo Department. In that letter, the Commissioner of Police states that he had been directed to institute a Civic Guard Patrol in the City of Calcutta, that for this purpose the City had been divided into 208 beats and that six Civic Guards would be allotted to each beat. He further stated that this scheme was being put into force from the evening of 26th April. He mentioned the amount of expenditure that would be incurred by the institution of the scheme and asked that funds might be placed at his disposal. On the following day, the Commissioner of Police appears to have prepared some notes under the heading 'Civic Guard Patrols' in which he dealt in some detail with the general organisation of the Civic Guard. He also purported to give certain instructions to the members of the Civic Guard in regard to their general duties and behaviour. On this point, the Commissioner of Police stated:
They are intended to be a visible symbol of law and Order with all the powers of Government behind them. They must inspire law abiding citizens with confidence and give bad characters a reminder that new forces have been arranged against them. They must pay no attention to abuse or jeers and must keep an unruffled demeanour always. On no account are they to adopt an aggressive attitude, or to make any kind of 'investigations' on their own account. The chief duty of a patrol is to watch. Their mere presence on the streets acts as a preventive.
4. In para. 7 of these notes, the Commissioner of Police proceeded to answer various questions which had been put to him as to the circumstances which demanded rigorous action. The learned Deputy Legal Remembrancer has referred us in particular to question 3 and the answer thereto, which are as follows:
If we see two people fighting what shall we do Answer. Talk to them quietly and ask them to go home. Do not shout at them or argue with them. If they persist in bawling and disturbing the neighbur-hood, arrest them and take them to the nearest police officer or police station. Note time, date and place of occurrence in your note book.
Having regard to the above-mentioned notes recorded by the Commissioner of Police, the learned Deputy Legal Remembrancer asks us to hold that the members of the Civic Guard were public servants within the meaning of Section 21, Penal Code, and that, when they attempted to arrest the petitioner, Jogendra Mohan De, they were acting in the execution of their duty as such public servants. In our view, the decision with reference to this point must depend on whether or not, the Civic Guards had been properly called out under the provisions of Section 4 of Ordinance 8 of 1940. This section is in the following terms:
The District Magistrate in a District or the Commissioner of Police in a Presidency Town may at any time call out a member of the Civic Guard for training or to discharge any of the functions assigned to the Civic Guard in accordance with the provisions of this Ordinance and the rules made thereunder.
It may be noted that it is only when a member of the Civic Guard has been called out under Section 4 that he is entitled to have the same powers, privileges and protection as a police officer 'appointed under any Act for the time being in force.' (Section 5.) Section 8 of the Ordinance empowers the Provincial Government to make rules consistent with the Ordinance
(c) regulating the organisation, appointment, conditions of service, duties, discipline, ...of the Civio Guard and the manner in which they may be called out for service.
5. The relevant rules are Rules 6 and 7 of the Rules issued under Notification no. 422P1.D, dated 26th October 1940. Rule 6 (1) is in the following terms:
6 Civic Guards may be called out on duty: (1) to assist the regular police force in the protection of the civil population against the forces of crime and disorder;
Rule 7 provides that:
in Calcutta only the Commissioner of Police may on out the Civic Guard for duty and such orderg shall be notified in the Calcutta Police Gazette.
6. It is, of course, possible to argue in this case on the basis of the above-mentioned notes that the Commissioner of Police intended that the Civic Guard should be called out for duty with effect from 26th April 1941. The fact remains however that this calling out for duty was not in compliance with the provisions of Section 4 of the Ordinance read with para. 7 of the above-mentioned rules because admittedly the orders calling out the Civic Guard for duty have not been published in the Calcutta Police Gazette as required by that rule. Under Section 8 of the Ordinance, as already pointed out, there is a provision to the effect that Government may make rules as to the manner in which the Civic Guard may be called out for service. The language of Rule 7 which is one of the rules made by Government under Section 8 of the Ordinance is quite clear to the effect that any Order calling out the Civic Guard to duty must be notified in the Calcutta Police Gazette. In our view, until and unless this mandatory provision of Rule 7 is observed, it cannot be said that the Civic Guard has been; called out for duty, and its members cannot, therefore, legally perform any of the functions with which police officers are specially invested under the law. It follows that, until such time as the Civic Guard has been legally called out for duty and the Order calling them out for duty has been notified in the Calcutta Police Gazette, the members of the Civic Guard are merely empowered to perform duties which an ordinary citizen may perform, and are invested with the further duties mentioned in para. 5 of the rules regarding regular attendance at parades and lectures, and they are also required to obey lawful orders of their superior officers.
6. Mr. Ahmad has argued that the members of the Civic Guard who attempted to arrest Jogendra Mohan De should be regarded as having been in actual possession of the situa tion of police officers within the meaning of Expln. (2) of Section 21, Penal Code, and that in view of the terms of this explanation, they should be held to be public servants under Section 21 (7) of the Code which applies to every person who holds any office by virtue of which he is empowered to place or keep any person in confinement. We are not prepared to ac-cept this contention. In our view, it cannot be said that members of the Civic Guard were in actul possession of the situation of police officers until they had been legally called out for duty under the terms of Ordinance 8 of 1940 tread with the rules, and we must hold that having regard to the mandatory provisions of Rule 7, the Civic Guard had not been called out on duty as the orders purporting to call them out had not been notified ,in the Calcutta Police Gazette.
7. In view of what has been stated above, the members of the Civic Guard had no authority to arrest Jogendra Mohan De, because, in the circumstances of this particular case, Jogendra Mohan De could only have been arrested by a police officer in accordance with the provisions of Section 43, Calcutta Suburban Police Act (2 of 1866). It follows, therefore, that the prosecution have not been able to show that Jogendra Mohan De committed any offence under Section 853, Penal Code. As the members of the Civic Guard who attempted to arrest him had not been properly and legally called out for duty, they were not lauthorised to exercise any of the special powers of a police officer, and Jogendra Mohan De was, therefore, justified in resisting, arrest. The result is that the conviction of the petitioners is affirmed under Section 41, Calcutta Suburban Police Act (2 of 1866), but we think that the ends of justice will be served by reducing the period of their sentences to the periods of imprisonment already undergone. As regards the conviction of Jogendra Mohan De under Section 353, Penal Code, we set this aside and direct that Jogendra Mohan De be acquitted of the charge under that section. Both the petitioners will be released from their bail-bonds.
8. I agree.