@JUDGMENTTAG-ORDER
Dhavle, J.@mdashOf the five petitioners Gulabi Mahto has been convicted u/s 224, Penal Code, and the other four under Sections 225 and 353, Penal Code. The learned Sessions Judge on appeal reduced the sentence on Gulabi (which was originally three months rigorous imprisonment) to a fine of Rs. 30. The sentence passed by the trial Court upon the other petitioners was upheld by the Court below. The prosecution story was that on the orders of the Sub-Inspector who was investigating a case of rioting and theft lodged by one Chetan Mandal, Gulabi was arrested by the constables; but he gave a push and freed himself. He was seized again, and then the other petitioners intervened and rescued him after a scuffle in the course of which two constables and the dafadar were slightly injured.
2. The defence was that Gulabi was not arrested at all, but that the constables as the Sub-Inspector had directed them, asked him to accompany them to the thana with the papers required in the counter case that Gulabi''s brother Kishun Prasad had lodged with the Sub-Inspector. Gulabi said that it was late at night and that he would produce the papers the following morning. The constables caught him by the hand and wanted to take him away forcibly and he resisted it. This was followed by a scuffle. The trial Court seems to have believed the whole prosecution story; but the learned Sessions Judge was unable to do so for reasons given. In his opinion the evidence of Dukha, chaukidar, P.W. 3, was nearer the truth than the evidence given by the other prosecution witnesses; and Dukha''s evidence was that the Sub-Inspector had left the place after asking them to bring Gulabi and other accused persons to the police station. It was admittedly very late at night, and Gulabi whom the constables wanted to take to the thana was disinclined to go out at that hour. "It is then," says the learned Sessions Judge,
that the constables tried to take him to the thana by force, which he resented. After this there was some scuffle followed by throwing of the brickbats.
3. On these findings of fact, it seems to me that there is an end of the prosecution case of offences u/s 224, 225 and 353. The learned Sessions Judge finds that the Sub-Inspector had asked the constables to bring Gulabi to the thana apparently with papers and he considers that this was a direction for arrest. But surely the Sub-Inspector, if he wanted the contables to arrest a man, who according to the finding of the learned Sessions Judge was not present on the scene, would not have forgotten Section 56, Criminal P. G., nor failed to give them an order in writing. The learned Sessions Judge has disbelieved the constables'' story that the Sub-Inspector''s order was given in the presence of Gulabi, and he has gone on to hold in reply to the defence contention about Section 56, Criminal P.C., that that Section did not take away the constables'' power u/s 54 to arrest persons accused of a cognizable offence. But this overlooks the fact that the constable never pretended on his own account to arrest Gulabi at all.
4. I cannot agree with the learned Sessions Judge that the Sub-Inspector''s asking the constables to bring Gulabi to the thana with the papers was in any sense "a direction for arrest," whether valid or otherwise. The learned Sessions Judge also observes that the trouble evidently arose because the time was late at night and the constables presumably first asked Gulabi to go to the thana with the papers which possibly misled him "in respect of the point whether he was under arrest or was simply being asked to go to the thana." This I am unable to follow. Section 46, Criminal P.C., prescribes how arrests are to be made, and it is not easy to find from the judgment of the learned Sessions Judge at what stage in the occurrence, as he conceives it, the constables gave up their demand for papers and proceeded to exercise what the learned Judge calls their statutory power to arrest persons u/s 54.
5. If all that happened was that the constables tried to take Gulabi to the thana by force, that Gulabi resented this and that this was followed by a scuffle in the course of which brickbats were thrown and this is the view of the learned Sessions Judge himself, it seems to me quite clear that the conviction of the petitioners was entirely unwarranted. Gulabi was not guilty of any offence u/s 224; nor the other petitioners u/s 225 and 353, Penal Code. The application in revision is therefore allowed, and the convictions and sentences of the petitioners set aside. The fines, if paid by them, must be refunded on application.
