Asutosh Mookerjee, C.J.
1. This Rule was issued on the application of seven constable who had been convicted of rioting under Section 147, Indian Penal Code, and sentenced to two months' rigorous imprisonment each. The Rule calls upon the District Magistrate of Howrah to show cause why the convictions and sentences should not be set aside. Eleven grounds were set out in the petition; two of these were over ruled by the Bench which granted the Rule; these raised questions of identification and severity of sentence. The other grounds have been summarised in the course of the argument before us under four heads, namely first, that the first Singh, have been tried in contravention of the provisions of Section 403(1), Criminal Procedure Code; secondly, that there is no legal evidence on which any common object could at all be found; thirdly, that the common object found is not supported by the evidence and fourthly, that the common object found is not the common object mentioned in the charge. Before we examine these points, it is necessary to recapitulate briefly the facts as found by the Courts below.
2. Mr. Bankim Krishna Ghose Executive Engineer in charge of the Brahmani Division in Orissa, has a house on the Sibpur Road in the town of Howrah. On the 2nd July 1919 two female hawkers took up their position with their baskets on the front step of the house; a third woman took up her place at the point where a private lane belonging to Mr. Ghose enters the public road. A constable, by name Murabbi Singh came up and demanded pice from the hawkers. They refused to pay and were supported in this by two persons Rishikesh Ghose and Amulyaratan Sarkar; the latter took down the number of the constable. An altercation thereupon ensued; Mr. Ghose came out of the house and asked what the matter was. The constable stated that the women were liable to arrest for selling vegetables on the public road. Mr. Ghose dissented, as according to him the hawkers were seated on his private property. He, however, told the constable that if he thought that the hawkers had committed an offence, he might arrest them, but that he need not create a disturbance. On this, the constable, aided by the fifth and seventh petitioners, Ramasis Singh and Raghuram who were constables in plain clothes, seized the hawkers' goods, loaded them on a passing out and took them as far as the Grand Trunk Road. Baghuram then went off to the Sibpur Police Station and reported to the senior Sub-Inspector that Murabbi Singh and Ramasis Singh were being assaulted as they had shifted some hawkers from the public road. The Sub-Inspector thereupon sent off a party of constables, including the rest of the petitioners, with orders to arrest the offenders and to bring them to the Police Station. The Sub-inspector also deputed the junior Sub-Inspector to accompany the constables; the junior Sub-inspector demurred at first but finally followed the party. On the way to the house of Mr. Ghose, the constables were jointed by Murabbi Singh and Ramasis Singh, and the whole party then proceeded to the spot, shouting some words among which one could catch the expression 'Numberwalla Babu.' When the party reached the house, they found at the doorway Pashupati Ghose, the son of Mr. Ghose. Murabbi Singh called out 'this is one of them,' whereupon the other constables hit him with sticks and proceeded to arrest him. The boy struggled and clung on to the door-leaves. His father came out at that moment and appears to have caught his arm with a view to prevent his arrest. There was a struggle in the course of which the Head Constable and Taluka Singh struck Mr. Ghose with sticks and finally father and son ware both arrested and marched off to the Police Station. A neighbour Hemanta Kumar Pal asked what the matter was; he was at once taken into custody by Ram Sahay Ram. A little further on, Brojendra Lal Dutta, brother-in-law of Mr. Ghose, turned up and asked the same question. He was forthwith arrested by Taluka Singh. Two other neighbours Kaladhan Ganguli and Lalbehari Basu were also taken into custody, because Brojendralal Dutta asked them to go and lay a complaint in Court. On arrival at the Police Station, the officer in-charge took a written statement from Mr. Ghose while Murabbi Singh laid a counter-information. These facts have been amply established by the evidence which has been accepted as true by Mr. Drummond, the District Magistrate, who tried the case in the first instance and by Mr. Fawcus, the Additional Sessions Judge, who heard the appeal against the convictions. There is no, reason to doubt that the facts have been correctly found by the Courts below and we have only to consider whether on these facts the convictions can be sustained.
3. The first point urged is that inasmuch as Ram Sahay Ram and Taluka Singh had been previously tried on the same facts, they could not be tried again Under Section 403(1), Criminal Procedure Code, This contention has been overruled by the District Magistrate as also by the Sessions Judge. It appears that Hementa Kumar Pal instituted a case against Ram Sahay Ram for wrongful confinement Under Section 342, Indian Penal Code. Ram Sahay Ram was acquitted after trial on the 19th August 1919. Similarly, Brojendra Lal Dutta instituted a case for wrongful confinement Under Section 342, Indian Penal Code, against Taluka Singh, who was acquitted after trial on the 14th August 1919. In these circumstances, the contention has been put forward that these acquittals bar the present trial of the two accused mentioned. This argument is plainly not well founded. The case is covered not by Sub-section (1) but by Sub-section (2) of Section 403, which provides that a person acquitted or convicted of any offence may le afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial Under Section 235, Sub-section (1). That section lays down that if, in one series of acts, so connected together as to form the same transaction, more offences than ore are committed by the same person, he may be charged with and tried at one trial for every such offence. In the case before us. Ram Sahay Ram and Taluka Singh were previously tried in respect only of the actual arrests made by them. Consequently even if we assume that the whole series of acts from the arrest of Pashupati Ghose in the house to the arrest of Kaladhan Ganguli and Lalbehari Basu in the pubic street formed the same transaction, within the meaning of Section 235(1), the two petitioners Ram Sahay Ram and Taluka Singh, who had been previously tried for an offence Under Section 342, Indian Penal Code, could still be tried for an offence Under Section 147, Indian Penal Code. The decision in Suresh Chandra Sinha v. Basu Sadhuhan 2 C.L.J. 622 : 3 Cr. L.J. 115 does not militate against this view, as the facts of that case attracted the operation of, not Sub-section (2), but Sub-section (1) of Section 408. The true test is as Lord Reading observed in R. v. Barron (1914) 2 K.B. 570 : 10 Cr. App. 81 : 83 L.J.K.B. 786 : 78 J.P. 311 : 58 S.J. 557 : 30 T.L.R. 422 not so much whether the facts are the same in both trials, as whether the acquittal on the first charge necessarily involves an acquittal on the second charge. We are clearly of opinion that the present trial is not vitiated by contravention of the rule embodied in Section 403, Sub-section (1). The first ground must consequently be overruled.
4. The remaining grounds may be conveniently considered together, as they all raise the question of common object which is an essential element of the offence of rioting Under Section 146, Indian Penal Code. The charge specified the common object as 'wrongfully to confine Babu Bankim Krishna Ghose, Pashupati Ghose and others,' The District Magistrate found that the alleged common object had been established by the evidence. The use of the expression 'Numberwalla Babu' showed that the feelings of the constables had been aroused against the persons who had taken down Murabbi Singh's number, as also against his associates. The common object thus was not to arrest person who had committed an offence, but to subject to humiliation those gentlemen who had intervened on behalf of the vegetable sellers. This clearly brings the case within the third clause of Section 141, Indian Penal Code. The evidence on the record abundantly supports the concurrent conclusion of the District Magistrate and the Sessions Judge on this point.
5. As a last resort, it has been faintly suggested that the accused are entitled to the benefit of Section 79, Indian Penal Code, which provides that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it. This argument is based on the assumption that the petitioners merely acted as they did in obedience to the orders of the officer-in-charge at the Police Station, who directed them to go and arrest certain offenders. We are of opinion that there is no foundation for this contention. The seventh petitioner Raghuram, as we have seen, went off to the Police Station and gave the entirely unfounded information that Ramasis Singh and Murabbi Singh were being assaulted because they had shifted some hawkers from the public road. The Sub-Inspector thereupon sent the constables to arrest the offenders. They met Murabbi Singh and Ramasis Singh on the way, who had been neither obstructed nor assaulted while engaged in the performance of their duties. In this connection, it is important to bear in mind that the allegation that the two constables had been assaulted was wholly false and the District Magistrate found that the marks of injury on their persons had been artificially caused. The constables who were sent out to arrest the alleged assailants of Murabbi Singh and Ramasis Singh could not be said to have acted in good faith within the meaning of Section 79, Indian Penal Code, that is, to have acted with due care and attention as required by Section 52, Indian Penal Code, when they proceeded to arrest the 'Numberwalla Babu.' Their manifest intention was not to arrest the supposed assailants or their colleagues, but to harass persons who had quite lawfully taken down the number of Murabbi Singh with a view to report his conduct to his superior officers. In our opinion the accused are not entitled to the protection afforded by Section 79, Indian Penal Code.
6. The real grievance of the petitioners is that some other persons jointly tried with them have been acquitted by the District Magistrate, The oases of those persons are not before UP, and we cannot pronounce an opinion upon the question, whether on the evidence an unduly favourable view has or has not been taken so far as they are concerned. But as regards the petitioners, we feel no doubt whatever that they have been rightly convicted. Indeed, the evidence discloses a surprising set of incidents, which, one would otherwise have thought, were not likely to happen in the neighbourhood of Calcutta. A constable, appointed presumably to keep the peace, attempts to extort money from three women vegetable-sellers, they have the courage to withstand the demand, with the result that an alteration ensues and a gentleman present at the place takes down the number of the constable. This infuriates the constable, who, along with two other constables, seizes the goods, places them on a passing cart, takes them away and has false information sent to the Police Station that the constables had been assaulted because they had attempted to shift some hawkers from the public road. A large party of constables is forthwith sent off to arrest the alleged offenders. The constables enter the house of a highly respectable citizen, who holds an important post in Government service, assault him and his son, arrest them and march them off to the Police Station. Gentlemen of the locality, who can muster courage to enquire what had happened, are forthwith arrested and are also marched off to the Police Station. The complainant, after considerable difficulty, is able to secure an enquiry by order of this Court which ultimately results in a conviction. it is manifest that but for the public spirited insistence of the complainant, the grave misconduct of the Police Officers concerned would never have been successfully investigated. We agree with the Sessions Judge that 'there was no semblance of discipline in the behaviour of the constables' and if there is anything to urge in this case against the sentences, it is clearly not their severity but their inadequacy.
7. The Rule is accordingly discharged. The petitioners will be called upon to surrender and to serve out the remainder of the sentences.
8. I agree.