1. The petitioners were accused of offences under Sections 144 and 379 of the Penal Code. The Sub-Inspector went out to investigate the matter and arrested the petitioners on those charges. Subsequently they escaped from the custody of the police. They were acquitted on the charge of rioting, but were convicted under Section 224 of the Penal Code, and sentenced each to three months' rigorous imprisonment and to pay a fine of Rs. 100.
2. Mr. Donogh, who appears for the petitioners, contends that as they were acquitted of rioting they were not in lawful custody, and that the conviction under Section 224 is, therefore, not sustainable. He refers for an authority to the case of Ganqa Charan Singh v. Queen-Empress (1893) I.L.R. 21 Cal. 337 Section 224 of the Penal Code is as follows: 'Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished, &c.;' Having regard to the context, we think that the words 'for any such offence' must mean for any offence with which he is charged or of which he has been convicted.' So that it would be an offence for a man to escape from custody after he had been lawfully arrested on a charge of having committed an offence, although he may not be convicted of such latter offence. An accused person is no less guilty than a convicted person, if he escapes from lawful custody. In the present case the petitioners were arrested by the police under the authority of Section 54, Criminal Procedure Code. That arrest was perfectly lawful and the subsequent detention was in lawful custody.
3. In the case relied on by the learned Counsel for the petitioners, a person bearing the same name as the accused, but who was not the actual person accused, was arrested by mistake. Whilst under arrest he escaped from custody. It was held that he was not lawfully detained in custody, and could not therefore be rightly convicted under Section 224. That case is clearly distinguishable from the present one, because there the arrest itself was unlawful and might indeed have been made the ground of an action for damages. Here the Police Sub-Inspector was authorised by law to arrest the petitioners who were accused of a cognizable offence.
4. Although we think the conviction must be sustained, yet we consider that the fact of the petitioners being pronounced not guilty of the charge on which they were arrested should justly plead in mitigation of sentence. The petitioners have already undergone more than one month's rigorous imprisonment. We direct that their sentences of imprisonment be reduced to the terms now actually undergone and that the fines be remitted, and, if paid, be refunded.