Lancelot Sanderson, C.J.
1. This was a Rule granted to show cause why the order complained of should not be set aside. The order complained of was an order of the learned Chief Presidency Magistrate by which he acquitted the accused, Rai Bahadur Purno Chandra Lahiri, under Section 258 of the Code of Criminal Procedure.
2. The facts which it seems to me are necessary for the purpose of my judgment are set out in the report of the case Pramatha Nath v. P.C. Lahiri 54 Ind. Cas. 63 : 46 C. 581 : 21 Cr. L.J. 15 which appears in Indian Law Reports, 46 Calcutta, page 581, and I need not repeat them. That is a report of the hearing of a Rule which had been obtained by Promotha Nath Barat on behalf of his brother Provat Nath Barat. The learned Chief Presidency Magistrate had dismissed the complaint made against the accused person under Section 203 of the Code. Then the Rule was obtained: upon the hearing of the Rule the learned Advocate-General said that he could not support the order and, further, he found difficulty in supporting the contention that the Circular which was relied upon was authorized by law. Consequently, the learned Judges who heard the Rule directed that the matter should be re-heard by the learned Chief Presidency Magistrate. The complaint thereupon again came before the learned Chief Presidency Magistrate. The complaint was in respect of an alleged vexatious and wrongful detention of Provat Nath Barat, he being a Head Constable in the Calcutta Police Force, and the accused being Deputy Commissioner. On this occasion the learned Chief Presidency Magistrate acquitted the accused under Section 258 of the Code. Thereupon, the Court was again moved for a Rule and the learned Judges who heard that Rule thought that an opportunity ought to be given to the petitioner to make an application to the Local Government. Consequently, the petitioner was allowed to withdraw the application, and the learned Judges said that if the Local Government did not take action in the matter then they would hear the petitioner's application. Thereupon, the petitioner moved the Local Government, but, on the 25th of November last year, the Local Government intimated that it was not prepared to move in the matter. Consequently, this application came before the High Court again, and my learned brothers Mr. Justice Chaudhuri and Mr. Justice Newbould granted the Rule which I have now before me.
3. In my judgment, the whole question depends upon whether the Deputy Com-missioner, Lahiri, is presented by the provisions of Section 76 or the provisions of Section 79 of the Indian Penal Code. The learned Counsel who appears to support this Rule has urged that there would be a grave danger to the public if it were held that a man was entitled to take shelter and receive protection for his illegal acts under a plea of ignorance of the law. I do not intend, by anything I say, to whittle away the principle which has been for a long time accepted with regard to that matter. It is not really necessary in this case to say anything about it, for the learned Advocate General has not disputed that principle. I only mention it because the learned Counsel for the petitioner referred to it in his reply.
4. The learned Advocate General has shown cause against the Rule on the ground that the Deputy Commissioner, Lahiri, was not guilty of any offense, because, by reason of a mistake of fact and in good faith, he believed himself to be bound by law to obey the instructions of the Commissioner of Police and to make the order of the 14th of February 1919. He further urged that the Deputy Commissioner had not committed any offense because, by reason of a mistake of fact and in good faith, he believed himself to be justified in making the order which he did on the 14th of February 1919.
5. Now, as regards the good faith of the Deputy Commissioner; in the learned Presidency Magistrate's Court there was an allegation that the Deputy Commissioner had acted maliciously. The learned Magistrate, however, found as a fact that there was nothing in that allegation. To use his own words, he said: I find there is no evidence of malice in the accused's action nor was it suggested by Borat that any such motive existed.'
6. As regards the alleged mistake of fact, the order in question was contained in the Calcutta Police Gazette of the date of the 9th of June 1917, and it purported to be by way of canceling a previous order which was published in the Calcutta Police Gazette of the 20th of February 1917. That previous order was:
7. 'All Constables and Head Constables placed under suspension are to be ordered to report themselves to the Central Lookup Guard.' The order published in Calcutta Gazette of the 9th of June 1917 was in he following terms:
8. 'Officers of all ranks when placed under suspension are subject to the same rules, regulations and discipline, as when not suspended.
9.'All Head Constables and Constables placed under suspension are to be ordered to report themselves to the Superintendent Head Quarters Force. They will be confined to quarters and are not to be allowed to leave the Lal Bazar compound without the specific permission of the Superintendent Head Quarters Force or any other officer detailed by him for the purpose.' The Calcutta Police Gazette, on the face of (SIC), purports to be the property of the Government of Bengal. It was stated in evidence that the above-mentioned order had been consistently obeyed and followed from the time it was published in June 1917. The events which form the basis of this case occurred in January 1919 so that the order had been in force, for about 18 months. It was conceded by the learned Counsel who supported this Rule and who opened the argument that if the order published in the Police Gazette had received the approbation of the Government of Bengal, he would have had nothing to say. But it is contended (and it is admitted) that the order in question had not in fact received the approbation of the Government of Bengal within the meaning of Section 9 of the Calcutta Police Act of 1886: and, consequently, it was argued by him, and admitted by the learned Advocate-General, that it was in fact an invalid order.
10. In my judgment, having regard to the facts which I have mentioned, and having regard to the further fact that it was proved that the Calcutta Police Gazette was the medium through which the Commissioner of Police communicates all orders and regulations issued by him ordinarily having the sanction of law, for the guidance of Police Officers and which orders have to be obeyed and carried out by all Police Officers, and having regard to the fact that this order had been in force for about 18 months and had been consistently acted upon and obeyed, the Deputy Commissioner was justified in assuming that the order had received the approbation of the Government of Bengal. The Deputy Commissioner was labouring under a mistake of fact and was not labouring under a mistake of law. The learned Chief Presidency Magistrate said: His, the accused's mistake was not one of law, in as much as it did not involve any mistake in the construction or ignorance of the existence of any enactment, but involved ignorance that certain requisites and formalities had not been complied with,' that is to say, that in fact the Government of Bengal had not given its approbation to the regulation or order which had been published in the Calcutta Police Gazette of the 9th of June 1917. Consequently, Subject to what I have to say with regard to the further point which was raised by Mr. Chakrabarty, I agree with the learned Chief Presidency Magistrate that the Deputy Commissioner, Lahiri, in respect of the making the order of the 14th of February, was protected by the provisions of Section 76 and by the provisions of Section 79. In my judgment, he was labouring under a mistake of fact, and he in good faith believed himself bound by law to obey the order, which was published in the Calcutta Police Gazette of the 9th of Jane 1917, and to make the order of the 14th February 1919. Further, in my judgment, by reason of a mistake of fact and in good faith, he believed himself to be justified by law in making the order of the 14th of February 1919.
11. But it was urged by Mr. Chakrabarty in reply, that whatever may have been the position of the Deputy Commissioner on the 14th of February when he made the order of that date, he cannot be protected by Sections 76 and 79 in respect of the detention which was subsequent to 30th of February 1919: and the learned Counsel referred us to the petition which was presented to the learned Chief Presidency Magistrate, on behalf of Provat Nath Borat on that date, in which it was contended that the detention of the Head Constable, Provat Nath Borat, was illegal. Certain reasons were set out in the petition as showing that the detention was illegal. There was no specific allegation in the petition that the order published in the Police Gazette on the 9th of Jane 1917 had not received the approbation of the Government of Bengal: but the learned Counsel stated (I have no doubt correctly) that on that date the learned Pleader who was appearing for the Head Constable had stated in Court that that was one of the points on which he relied. As I intimated to the learned Counsel during the course of the argument, I am not satisfied that the Deputy Commissioner Lahiri was responsible for the detention after the 20th of February 1919. I find that the learned Chief Presidency Magistrate referred the matter of the petition to the Commissioner of Police and the Commissioner made a report to the Chief Presidency Magistrate; and, I am by no means satisfied that the Deputy Commissioner Lahiri was responsible for the detention after that date. This point does not seem to have been specifically taken in the Chief Presidency Magistrate's Court. It must be remembered that this is a case in which the accused person has been acquitted and we are asked to make the Rule absolute and set aside that order of acquittal, and the rule is that this Court on revision does not exercise its jurisdiction to set aside an order of acquittal, unless it is of opinion that 'it is urgently demanded in the interest of public justice' Faujdar Thakur v. Kasi Choudhuri 27 Ind. Cas. 186 : 42 C. 612 at p 616 : 19 C.W.N. 184, 21 C.L.J. 53 : 16 Cr L.J. 122 and, having, regard to the fact that the materials before me do not satisfy me that the Deputy Commissioner Lahiri was directly responsible after the 20th of February 1919 for the detention of the Head Constable, Provat Nath Borat in my judgment, it would not be right for this Court to make this Rule absolute.
12. For these reasons, in my judgment, the Rule should be discharged.
13. I agree.