1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against an order of acquittal of the respondents on charges under Sections 147, 225-B and 332 of the Indian Penal Code. The respondents were charged with committing riot in order to rescue certain persons arrested under the provisions of Section 55 of the Criminal Procedure Code, the intention of the Police being to initiate proceedings against the latter under Section 110 of the Code of Criminal Procedure. These persons were rescued by their relations and friends, who assembled together and attacked the Police party. [One of the respondents Roahid Ali having injured a constable by a blow on the arm with an axe, was charged under Section 332, and the rest were charged under Section 147 and 225 B, Indian Penal Code.
2. The facts have been found against the respondents and we see no reason to doubt these findings of fact. But the respondents have been acquitted on the ground that the custody of the Sub-Inspector was not lawful, inasmuch as he did not tell them that they were entitled to be released on bail. The learned Magistrate held that when the Police act under Section 55, they are bound to give the persons arrested the option of bail and not having done so, the custody was illegal and, therefore, the respondents were not. liable under Sections 147, 225-B or under Section 332 of the Code. But there does not appear to be any indication in Section 55 that the Police are bound, after arrest, to inform the persons arrested that they are entitled to be released on bail. Nor is it clear that the Police are bound to release them on bail any more than persons who had been arrested under Section 54, Civil Procedure Code. Had the Legislature so intended there would probably have been attached to Section 55 a clause similar to Clause (2) of Section 57 directing release on bail. The learned Magistrate holds that inasmuch as under Section 110, the Magistrate would ordinarily issue summonses on those who are to be proceeded against, therefore when a man is arrested under Section 55, he should be informed by the. Sub-Inspector who arrested him, that he may be released on bail. The learned Magistrate also thinks that because proceedings under Section 110, Criminal Procedure Code, if successful would terminate in an order of the Magistrate on the, accused to furnish bail with sureties, therefore a similar order should be made by the Police on arrest. But this procedure would hand over to the Police the Magistrate's power under Section 122, Criminal Procedure Code, to refuse to accept the surety offered. The arrest under Section 55 was quite independent of the proposed proceedings under Section 110. In any case Section 114 says that when persons are to be proceeded against under Section 110, the Court is to issue a summons requiring them to appear or, when they are in custody to issue a warrant directing the officer in whose custody they are, to bring them before the Court. So that it contemplates that in certain cases, the accused may already be under arrest, presumably under the provisions of Section 55.
3. Even had the learned Magistrate been correct in holding under the authority of Emperor v. Daulal 14 A. 45 AWN 1891, 179, that an option of bail must be given, in this particular case, the attack of the Police Officer was made almost immediately after the arrest took place, and we think that, in the circumstances, it cannot be said that the custody of the respondents was illegal, merely because up to that time the Police had not informed them that they were entitled to be released on bail. In all the circumstances we do not think that in this case the custody of the respondents was illegal, so as to justify the assault which was made on the Police by the respondents. We, therefore, set aside the order of acquittal and convict all the respondents except Wahid Ali under Section 147 and all of them under Section 225-B, and Roahid Ali also under Section 332, Indian Penal Code.
4. Roahid Ali is sentenced to 6 months' rigorous imprisonment under Section 332 and 3 months' rigorous imprisonment under Section 225-B, the sentence to run concurrently. All the rest will undergo rigorous imprisonment for 3 months under Section 225-B. No separate sentences are passed under Section 147.
5. The respondents will surrender to their bail bonds to serve out the sentences now imposed upon them.
6. I agree.