(1.) These are two rules relating to the same trial and it will be more convenient that they should be disposed of simultaneously.
(2.) It appears that, in consequence of some combination amongst about 30 villages in the District of Patna to resist all measures for the prevention or suppression of the plague and an apprehension that a riot was likely to take place, the District Magistrate appointed a considerable number of the principal inhabitants of the villages to serve as special constables. To carry out this order, Mr. Baker, Inspector of Police, accompanied by the Sub-Inspector and two constables, went to the village of the petitioners for the purpose of informing the 3 petitioners, Nawrangi, Sewbaran and Gangabissen Singh, that they had been appointed special constables under Section 17 of the Police Act of 1861. On arriving at this village, the Police Officers found a large number of people assembled. Mr. Baker, the Inspector of Police, gave notice that Nawrangi, Sewbaran and Gangabissen had been appointed special constables. Two of these men were known to the Sub-Inspector, and it is said that they were pointed out to the Inspector, but there is reason to believe that the Inspector did not understand this. It is in evidence that Nawrangi, when asked his name, gave a false name. Mr. Baker then announced that these men were to go with him to the police station at Bakhtearpore, which they refused to do. On this, he ordered a police constable to arrest Nawrangi and, on making the arrest, Nawrangi shook himself free and the villagers, who were assembled and amongst whom were the other petitioners before us, tumultuously threatened and used criminal force to the Police Officers, so as to cause them to leave the place. For these acts the petitioners have all been convicted under Section 353, read with Section 149 of the Indian Penal Code, that is, of being members of an unlawful assembly in prosecution of the common object of which some member assaulted, or used criminal force to a Police Officer, a public servant, in execution of his duty as such public servant, with intent to prevent or deter such person from discharging his duty as a public servant. Nawrangi, Sewbaran and Gangabissen have also been convicted under Section 19 of the Police Act of 1861 in that, being appointed special police officers, they, without sufficient excuse, refused to serve as such or to obey the lawful order of the Inspector. The petitioners have all been sentenced to 6 months rigorous imprisonment for the first offence and the three petitioners just named have also been sentenced to a fine under the Police Act.
(3.) Now there can be no doubt that Mr. Baker, Inspector of Police, had no authority to arrest Nawrangi Singh, and therefore, as the police when obstructed were not acting in lawful discharge of their duty, the petitioners can, none of them, be properly convicted of an offence under Section 353 of the Indian Penal Code. The refusal of Nawrangi to accompany the Police Inspector to Bakhtearpore was not an offence, for which the arrest could have been made. Nor do we think that any refusal of Nawrangi, Sewbaran and Gangabissen to accompany the Police Inspector to Bakhtearpore constituted an offence under Section 19 of the Police Act, for which they could be punished. It appears that the order was intended not for any purpose of police duty, but simply that they might obtain the authority of their appointment and the necessary arms. It seems to us that to require any one, who has been appointed a special constable, to leave his own occupation and to proceed to some distance for such a purpose is not a reasonable order, or one which can be properly called an order connected with the purposes of his duty. Nor do we regard the conduct of these men as a refusal to serve. We think rather that it was simply a refusal to go to Bakhtearpore, and that there was an opposition to the arrest of Nawrangi, in consequence of such refusal. Under such circumstances we think that the conviction and sentence under Section 19 of the Police Act is bad. It is accordingly set aside.;