1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, on behalf of the Provincial Government against six accused who were acquitted on appeal by the Additional Sessions Judge, Chittagong. One of the accused, Munshi Mia, against whom the appeal was admitted is now reported to be dead. The accused wore tried along with six others by Mr. Ganguli, a Magistrate of Chittagong on charges under Sections 147, 332/34, 225 and 224, Penal Code. The trial Magistrate acquitted six accused before him and convicted the remainder under various sections and sentenced them to various terms of imprisonment under various sections.
2. The prosecution case is that one Sashi Kumar Nath (P.W. 11) reported a robbery on 13-2-1945 by four persons including two of the present accused, Sona Mia and Siddique Ahmed. Information was recorded by Gopal Chandra Nag (P.W. 1) Assistant Sub-Inspector (EX. 7). Iavestigation was taken up by Sub-Inspector, Moklasar Rahman (P.W. 2) who went with the Assistant Sub-Inspector and two constables Jalal Ahmad and Mohammad Soleman (P.Ws. 3 and 14) to the locality and eventually to the village of Haitkandi in search of the two accused Sona Mia and Siddique Ahmed. They spent the night at the house of one Abdul Waheb and, in the early hours of the morning of 14th February, went to arrest Sona Mia and Siddique Ahmed. Gopal Chandra Nag, the Assistant Sub-Inspector was deputed to surround Sona Mia's house while the Sub-Inspector, Moklasar Rahman, went to Siddique's house which is about 150 cubits to the north to arrest the latter. At about 6 A.M. Gopal Chandra Nag called Sona Mia out and explained that he was to be arrested. Sona Mia shouted when 10 or 12 people came armed with lathis and three of them rescued Sona Mia. The accused Nazir Ahmad Chowdhury gave Sona Mia a lathi and all of the party assaulted Gopal Nag's police party and chased them. The alarm brought the Sub-Inspector from Siddique's house. The two parties met. Some men from Siddique's house came and joined in and all the police party were further assaulted. A First Information was lodged in the case of Mohammad Soleman (P.W. 14). Further police came to the spot and investigation of the present case was taken up first by Moklasar Rahman and later by Ramesh Chandra Chatterjee, Sub-Inspector (P.W. 13).
3. Sona Mia was charged under Section 224, Penal Code for escape from lawful custody. Munshi Mia (now deceased), Mona Mia, Kabir Ahmed were charged under Section 225, Penal Code for rescuing Sona Mia, and all the accused were charged under Section 14.7, Penal Code the common object of the assembly being stated as 'to deter public servants A.S.I. Gopal Chandra Nag (P.W. 1), S.I. Moklasar Bahman (P.W. 2) and the companions from their discharge of duty as such by assaulting them.' All the accused were further charged under Section 332/34, Penal Code with haying voluntarily caused hurt to public servants A.S.I. Gopal Chandra Nag, S.I. Moklasar Rahman and the constables in the discharge of their duty as such public servants.
4. The defence of Sona Mia was that he was not present at his house at all that night. It was alleged that some of the constables, at an early hour during the night had broken into his house and assaulted his wife.
5. Nazir Ahmed who is a man of a separate village alleged that he had been dragged into this case through the enmity of one Debendra.
6. The defence of the other accused was that they had not been properly identified.
7. A point of law was taken for all the accused that the arrest by the Assistant Sub-Inspector in the absence of a written order from the investigating officer was not lawful and therefore the charges based on the assumption that the arrest had been lawful could not stand.
8. On appeal the learned Additional Sessions Judge considered the defence of Sona Mia and the defence evidence and rejected it. He did not discuss the particular case of Nazir Ahmed. He accepted the defence contention as regards the arrest, noting that the learned Public Prosecutor had not put forward the argument that the arrest was made by the Assistant Sub-Inspector in the presence of the Sub-Inspector, inasmuch as the evidence was that the arrest was made in the house of Sona Mia 150 cubits south to that of Siddique Ahmed where the Sub-Inspector Moklasar Bahman was staying at the time of the arrest. The only other contention before him was that there was a joint investigation by both the Sub Inspector and by the Assistant Sub-Inspector and that therefore the latter himself had a right to arrest. The learned Judge rightly as we think rejected this contention. He then concluded as a result of this decision that 'this being the central fact of all the charges, the latter must fail.'
9. Before us, it has been faintly suggested that the arrest was made by the Assistant Sub-Inspector in the presence of the Sub-Inspector but we agree in this matter with the view of the learned Additional Sessions Judge. Our attention has been drawn to the case in Bupdt and Remembrancer of Legal Affairs, Bengal v. Entajuddi 33 A.I.R. 1946 Cal. 314. But the facts there are quite distinct from those here. There the arrest was clearly made in the presence of the constables who were duly authorised in writing.
10. Where, however, the learned Additional Sessions Judge has been in error is that he has overlooked the provisions of Section 99, Penal Code and also the circumstances here which show that whatever right Sona Mia and his men might have to resist the arrest they certainly had no right to chase the police party and assault them. Section 99, Penal Code, makes it clear that he had in fact no right to resist the arrest, and that he had no right of private defence against the act of the Assistant Sub-Inspector in arresting him, which act was clearly done under colour of his office, though not strictly justifiable by law, as we have held in the absence of a written order from the Investigating Officer. The learned Judge is correct in saying that all the charges fail in so far as they are based on the alleged fact that the police were acting strictly within their rights but he was incorrect in holding that all the charges fail completely. Such of the accused as assaulted the police were certainly guilty under Section 323, Penal Code, although they were not guilty of the major offence charged under Section 332, Penal Code.
11. It remains for us then to consider whether the Magistrate's findings of fact in regard to the charge under Section 332/34, Penal Code, should be sustained, the conviction being altered to conviction under Section 323, Penal Code, for failure of proof of the fact that the police party at the time were acting as public servants in discharge of their duty as such public servants. The trial Magistrate has dealt with the facts very carefully. He set himself a standard of proof, so to speak on the basis o which he was prepared to convict and on that standard acquitted six of the accused and convicted the remaining six.
12. We do not find it necessary to discuss in detail the evidence given by the police party and the two witnesses Syadal Haque (P.W. 5) and Mahababal Haque (P.W. 15) which describe generally the occurrence. It is clear that the prosecution case is true, that Sona Mia was arrested and first the party of the Assistant Sub-Inspector was beaten and chased and when joined by the party of the Sub-Inspector that there was further assault by the men from Sona Mia's house as well as those from Siddique's house who joined them. [His Lordship then discussed the medical evidence, the evidence as regards the defence of alibi of Sona Mia and the defence of Nazir Ahmad; and after holding that the defences had not been proved, His Lordship proceeded:].
13. It remains then to consider the evidence of identification against each of the accused to show that they took part in the more or less indiscriminate assault on the police party. The trial Judge has carefully analysed the evidence and we may briefly refer to his analysis. [After discussing the eyidence of identification against each of the accused, His Lordship continued:].
14. We are satisfied that the evidence clearly establishes the guilt of these five accused Sona Mia, Mona Mia, Kabir Ahmed, Nazir Ahmed Chowdhury and Siddique Ahmed as showing that they took part in the general assault on the police party and the witnesses Syadal Haq (P.W. 5) and Mohababal Haq (P.W. 15), and that these accused have been clearly proved to be guilty of an offence under Section 323/34, Penal Code. We convict them accordingly and sentence them each to a fine of one hundred rupees in default to two months' rigorous imprisonment.
15. I agree.