JUDGMENT Pal, J. - This Rule was issued by this Court calling on the District Magistrate of Noakhali and the Opposite Party to show cause why the order complained of in the petition should not be set aside or such other or further orders made as to this Court may seem fit and proper. The Petitioner No. 1, Nurul Haque, is the dafadar of Ramnagar Union and the Petitioner No. 2, Abul Hossain, is the dafadar of Udrajpur Union. The Opposite Party Obeyed Ulla is the Secretary of the Daganbhuya Bazar Samiti. The two Petitioners along With a Chaukidar of the place, Azizal Huq by name, were the three accused persons and the Opposite Party was the complainant. 2. The prosecution case is as follows:-- The complainant Obayedulla was informed at about 8 or 9 p.m. by Hem Chandra Dutt that the three accused persons Abul Hossain, Nurul Huq and Azizal Huq were assaulting two thieves in the Daganbhuiya H.E. School. They went there with Ramani Majumdar and found Ledu and Ali Hossain under arrest of the above named three accused persons who were assaulting the two thieves. Obayedulla asked the persons not to beat them and informed Wahiduddin, Chairman of the East Chandpur Debt Settlement Board who accompanied him and was informed by the three accused persons that the two arrested thieves stole two lungis from the tailor's shop in the hat. They were taken to the tailor's shop where the tailors Soleman and Sultan identified the two lungis as their stolen lungis and they agreed to complain for the theft. So Wahiduddin, the Chairman of the D.S.B. asked the tailors to go to the thana next day for lodging an ejahar, made a list of the witnesses to prove the occurrence and gave it to the accused persons two of whom the petitioners Nurul Huq and Abul Hossain were the dafadars and the third Azizal Huq was the chowkidar. He instructed the dafadars and the chowkidar to take the thieves to the thanna along with the owners of the lungis i.e. the tailors. In the next morning Obayedulla came to learn that the three accused persons let off the thieves and did not go to the thanna. So he filed a petition Ext. 1, to the S.D.O. who took cognizance of the offence u/s 190 (1) (c), Cr. P.C. 3. In the next morning Obayedulla came to learn that the three accused persons let off the thieves and did not go to the thanna. So he filed a petition Ext. 1, to the S.D.O. who took cognizance of the offence u/s 190 (1) (c), Cr. P.C. 3. The case made in the petition of complaint was as follows:-- On Wednesday the 30th October 1940 at about 8 or 9 p.m. the dafadars of Union Nos. 4 and 5 and a chowkidar arrested two thieves with the stolen goods at Daganbhuiya bazar. These stolen goods were identified by the shop-keepers in the presence of the Chairman Debt Settlement Board of No. 3 Purbachandrapur Union and many other persons. Even in these circumstances the said dafadars and the chowkidar in collusion with each other released the thieves in the dead of night. It may be stated here that even before this these dafadars set free after arrest thieves on several occasions. Daganbhuiya bazar continues till late in the night and therefore there occur many cases of theft. Under these circumstances if thieves are thus released after arrest there is likelihood of increase of thefts. 4. On 13th February, 1941 and 14th February, 1941, the complainant and 14 prosecution witnesses were examined and on 14th February, 1941, the following charge was framed against the accused persons:-- That you, on or about the 30th clay of October. 1940 at Daganbhuiya bazar, P. S Feni being public servants, Nos. 1 and 2 being dafadars and No. 3 being a chowkidar; and as such public servants legally bound to keep in confinement, Ledu alias Maklas Rahman and another man who were charged with the offence of theft u/s 879, I.P.C. negligently suffered the said two men to escape from confinement and thereby committed an offence punishable u/s 223 of the Indian Penal Code, and within my cognizance. 5. After this charge one more witness for the prosecution and seven witnesses for the defence were examined in this case. The learned Magistrate convicted the Petitioners under sec. 223, I. P. C, and acquitted the other accused. 6. 5. After this charge one more witness for the prosecution and seven witnesses for the defence were examined in this case. The learned Magistrate convicted the Petitioners under sec. 223, I. P. C, and acquitted the other accused. 6. Sec. 223, I.P. Code lays down:-- Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently Buffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 7. The section requires- (1) that the person escaping must be the person-- (a) charged with any offence or (b) convicted of any offence or (c) lawfully committed to custody; (2) that the accused-- (a) must be a public servant, (b) must be legally bound as such public servant to keep the person escaping in confinement; (3) that the accused-- (a) suffers the person to escape from confinement, (b) does so negligently. 8. Sec. 21, I.P.C. defines "public servant" and it is not disputed that the Petitioners are "public servants" within the meaning of the section. 9. According to the charge framed in the present case the persons escaping were the persons "charged with the offence of theft." The other two alternatives of the first requirement therefore have no bearing on the present case. 10. Three questions therefore really require consideration in this case, viz.- 1. Whether in the facts proved in this case the persons escaping could be said to be the persons "charged with any offence" within the meaning of the section; 2. Whether the Petitioners were legally bound in their capacity of dafadars to keep those persons in confinement; 3. Whether the Petitioners negligently suffered such persons to escape. 11. The learned Magistrate who tried this case considered the main points for decision to be the following:- (1) whether Ledu and the other man, i.e., Ali Hussain were charged with an offence and whether they had been committed to the custody of the present three accused persons in their capacity as public servants; (2) whether the accused persons were legally bound to keep in confinement those two persons; (3) whether the accused persons suffered those two persons to escape from confinement; and (4) whether they acted negligently when suffering such escape. 12. 12. The first point thus defined by him for his consideration is not in strict accordance with the charge framed. As has been pointed out above the charge as framed against the present Petitioners did not say that the person escaping was lawfully committed to their custody. 13. The learned Magistrate found on the first point thus defined by him:-- (1) that an occurrence regarding theft of two lungis by Ledu and Ali Hussain from the tailor's shop took place; (2) that these two persons Ledu and Ali Hussain were arrested; and (3) that the arrested thieves were made over to the custody of the two accused dafadars and one accused chaukidar with instruction to go to Police Station next day. 14. The learned Magistrate comes to no finding as to who arrested the alleged thieves though he refers to the statements of the witnesses to the effect that the arrest had been by the present accused persons. In his conclusion he seems to ascribe the act of arrest to persons other than the accused and seems to find that those persons placed the thieves already arrested by them in the custody of the accused persons with certain instructions. According to his finding, therefore, the present accused were "legally bound " to keep the escaping persons in confinement, not because those persons were arrested by themselves but because they were made over to their custody by the complainant's party. 15. In view of this state of finding by the learned Magistrate it is contended on behalf of the present Petitioners- (1) that the case thus sought to be made out against them was outside the charge framed; (2) even assuming that the alleged thieves were thus placed in their custody, (a) they were not lawfully committed to custody within the meaning of the section, (b) in any case the Petitioners were not legally bound in their capacity as dafadars to keep the alleged thieves in confinement within the meaning of the section. 16. On his points 2, 3 and 4 the learned Magistrate found- 1. that secs. 23 and 24 of the Village Self-Government Act (Act V of 1919) imposed a duty on the accused persons to take the arrested thieves to the Police Station and consequently they were legally bound to keep in confinement these two thieves until they produced them before the Police Station; 2. that secs. 23 and 24 of the Village Self-Government Act (Act V of 1919) imposed a duty on the accused persons to take the arrested thieves to the Police Station and consequently they were legally bound to keep in confinement these two thieves until they produced them before the Police Station; 2. that the accused persons did not produce these two arrested persons who were charged with having committed a cognizable offence before the Police Station; 3. that the accused persons suffered them to escape from confinement either negligently or with some motive. 17. The learned Magistrate seems to have missed the fact that in view of the charge framed it was incumbent upon him to come to a definite conclusion as to whether the accused negligently suffered the two thieves to escape. They were never called upon to meet the case that they did so wilfully or "with some motive." It would be a different offence if they intentionally suffered the alleged thieves to escape. 18. So far as the present Petitioners are concerned, sec. 23 (2) of the Bengal Village Self-Government Act (Act V of 1919), read with sec. 23 (1) (ii) (a) and (d) and sec. 23 (iv) defines their duty. According to these provisions every dafadar may, without an order from a Magistrate and without a warrant, arrest any person under certain circumstances, and is bound to assist private persons in making such arrests as they lawfully make. "When a dafadar assists any private person in making an arrest, it becomes his duty to report such arrest without delay to the officer-in-charge of the Police Station: [Sec. 23 (i), (iv)]. When, however, a dafadar himself arrests any person under sec. 23, he shall forthwith take the person so arrested to the Police Station within the limits of which the Union is situated : Provided that, if the arrest is made at night, such person shall be so taken, as Boon as convenient, on the following morning : (Sec. 24). 19. Sec. 43, I.P.C. gives the meaning of the phrase "legally bound to do." A person is said to be "legally bound to do " whatever it is illegal in him to omit. 20. Sec. 24 of the Bengal Village Self-Government Act comes into operation only when the arrest is made by the dafadar himself under sec. 23 of that Act. Sec. 43, I.P.C. gives the meaning of the phrase "legally bound to do." A person is said to be "legally bound to do " whatever it is illegal in him to omit. 20. Sec. 24 of the Bengal Village Self-Government Act comes into operation only when the arrest is made by the dafadar himself under sec. 23 of that Act. It is thus clear that a dafadar as such becomes "legally bound to keep in confinement" any person only when that person is arrested by himself under sec. 23 of the Village Self-Government Act and till the person thus arrested is taken to the Police Station, under sec. 24 of that Act. 21. It is an essential ingredient of the offence under sec. 223, I.P.C., that the public officer in question must be found to have been legally bound to keep in confinement the escaping persons. As will appear from the provisions of the Bengal Village Self-Government Act noticed above, the duty to keep in confinement arises only when the arrest is made by the dafadar himself under sec. 23 of that Act. It was therefore a material question in the present case whether the arrest was made by the present Petitioners under sec. 23 of the Village Self-Government Act or by anybody else. The Petitioners denied the incident altogether. It was therefore incumbent on the prosecution to establish this element. Unfortunately there is no definite finding on the point. The learned Magistrate seems rather to find that the arrest was made not by the present Petitioners, but by the complainants' party and the latter placed the arrested persons in the custody of the Petitioners. If these were the facts then it seems the Petitioners as dafadars were not "legally bound " to keep the escaping persons in confinement within the meaning of sec. 223, I. P. Code. 22. The arrest, if made by the complainant's party, could have been made only under sec. 59, Cr. P. Code. Sec. 59 (1), Cr. P. Code, lays down that any private persons may arrest any person who in his view commits a non-bailable and cognizible offence, or any proclaimed offender, and, without unnecessary delay shall make over any person so arrested to a Police Officer or, in the absence of a Police Officer, take such person or cause him to be taken in custody to the nearest Police Station. 23. 23. A Chaukidar or a dafadar is not a Police Officer within the meaning of this section. Purna Chandra Kundu v. Hachanali Chowkidar 17 C.W.N. 978 (1913) and Kalai v. Kalu Chowkidar ILR 27 Cal., 366 (1900). Consequently even assuming that the complainant's party made over the persons arrested to the present Petitioners and the present Petitioners undertook to take them to the Police Station and thus to oblige the complainant's party, this would not render them "legally bound as dafadars to keep such persons in confinement." They would not be functioning as dafadars at all while thus keeping the persons in confinement. On the other hand if any illegality attached to the arrest by the complainant's party, any person including the present Petitioners might have to bear the consequences if they thus took any part in the arrest or confinement. 24. Sec. 59 (2), Cr. P. Code, did not authorise the dafadars to re-arrest. Even assuming that it was open to the present Petitioners to re-arrest the alleged thieves under sec. 23 of the Village Self-Government Act, they were not bound to re-arrest, and it is not the prosecution case that such re-arrest was made by them as a matter of fact. 25. In my judgment on the facts found by the learned Magistrate in this case the present Petitioners were not "legally bound to keep the alleged thieves in confinement" within the meaning of sec. 223, I.P.C., and consequently they cannot be convicted under that section. 26. In the view that I have taken of the present Petitioners' duty to keep the alleged thieves in confinement, it is no longer necessary to find out the meaning of the words "charged with any offence " as used in sec. 223, I. P. C. In Kalai Antra v. Emperor AIR [1927] Bom. 96, (Patkar and Baker, JJ.) the word "charged " as used in the analogous sec. 224, I. P. C., was taken to have been "used in the popular sense as implying inculpation of an alleged offence as distinguished from a charge formulated after trial." 27. Mr. Mukherjee, appearing for the accused, contended that the words "charged with" as used in secs. 224, I. P. C., was taken to have been "used in the popular sense as implying inculpation of an alleged offence as distinguished from a charge formulated after trial." 27. Mr. Mukherjee, appearing for the accused, contended that the words "charged with" as used in secs. 221, 223, 224 and 225 of the Indian Penal Code, should be taken to refer to and mean that stage of the trial when "formal charges have been framed against the accused person." Reading these sections along with sec. 225A of the Indian Penal Code, he contended that all the cases relating to the escapement of offenders before that stage of the trial is reached are covered by the last-named section. This contention of Mr. Mukherjee at first appeared to me to be of much substance though after more careful consideration I respectfully agree with the view expressed by the Bombay High Court. The sections use the words "charged with" and not "formally charged with," nor "against whom charges have been framed." But for any special meaning given to these words by the Criminal Procedure Code or any other statute, these words only mean inculpation or accusation of an alleged offence. In a contemporaneous statute the legislature frequently used these words in this popular sense. Thus in the Criminal Procedure Code of 1861 (Act XXV of 1861) we find the use of these words in secs. 31, 32, 33, 40, 41, 84, Chapter XI, secs. 166 to 170, Chapter XVII, sec. 280 and in all these sections these words were undoubtedly used in the popular sense. Similar use is found also in the Criminal Procedure Code (Act X of 1872). Though not of much consequence it may also be noticed that sec. 225A of the Indian Penal Code was not in the original Code of 1860. The section was first introduced by sec. 9 of Act XXVII of 1870 in very much restricted terms only to cover the cases of escape "from custody for failing to furnish security." It was placed in its present comprehensive form by sec. 24 (1) of Act X of 1886. 28. In my opinion the imposition of the restricted meaning on these words as contended for by Mr. Mukherjee would be to withdraw from the operation of the statute cases falling both within its scope and the fair sense of its language. 29. 24 (1) of Act X of 1886. 28. In my opinion the imposition of the restricted meaning on these words as contended for by Mr. Mukherjee would be to withdraw from the operation of the statute cases falling both within its scope and the fair sense of its language. 29. The persons escaping in the present case, in my opinion, fulfill the requirement of being "persons charged with an offence" within the meaning of sec. 223, I.P. Code. But as I already pointed out, in view of the facts found in this case the present Petitioners were not in their capacity of dafadars legally bound to keep the persons escaping in confinement and consequently their conviction under sec. 223, I.P.C., cannot be allowed to stand. 30. In the result I make the rule absolute and set aside the conviction of the present Petitioners and acquit them. The fine, if realized, should at once be refunded. I may observe here that in passing the sentence the learned Magistrate sentenced each of the Petitioners to pay a fine of Rs. 50 and "in default to rigorous imprisonment for two months each." Sec. 223, I.P.C., provides only for simple imprisonment in case of imprisonment and consequently under sec. 66, I.P.C., the imprisonment in default of payment of fine might only be of that description. The learned Magistrate should not have overlooked this provision of the Code.