Jafar v. Emperor Opposite Party.

1. The appellant Jafar was found selling some spices in the bazar by two chaukidars, who suspected him of possessing stolen property and of at tempting to dispose of the same. He was arrested by them and was being-taken to the Police station when certain persons rescued him from the custody of the chaukidars. He has been charged under S. 224 as also under S. 333/34, I.P.C The first point for consideration is whether the chaukidars had any authority to arrest him. The learned Judge has found that these chaukidars were acting under S. 52 of Act 20 of 1856. That Act was repealed by Section 41 of the Local Council Act, 2 of 1914 (the United Provinces Town Areas Act). Act 20 of 1856 is no longer in force in these Provinces and the Town Areas Act contains no provision similar to that contained in S. 52 of Act 20 of 1856. The chaukidara therefore did not belong to the police force and had no authority to arrest the appellant on mere suspicion under the circumstances mentioned by them. The rescue therefore of this man was not an offence under S. 224, I.P.C

2. There remains the charge under Section 333/34. S. 34, I.P.C, enacts that when an act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. To make out therefore an offence under S. 333/34 it must be shown that the actual rescuers and Jafar were acting together in pursuance of a common intention. There is nothing to show that before his arreast Jafar had any apprehension of being arrested of that any pre-arrangement was made for his rescue. It may be that the rescue were all actuated by a common intention of acting as rescuers. But it cannot be said that Jafar was one of the persons who had been in the party and with whom such arrangement was made.

3. The charge under S. 333/34, I.P.C cannot therefore be sustained. The learned Government pleader has asked me to alter the conviction to one under S. 323, I.P.C, as according to the evidence of Het Ram, Jafar himself snatched a lathi from the hand of Ram Narain and gave a blow to him. If this were true, he would be guilty of the offence of simple hurt. As he has already been in jail from 31st March 1916 up to this day the offence if any committed by him under S. 323 seems to have been adequately punished by his detention in prison for such a period. I do not think this is a case in which I ought to altar the conviction. I allow the appeal, set aside the conviction and the sentence and direct that the appellant be forthwith released.

V.B/R.K

4. Appeal allowed.