JUDGMENT : 1. This is a criminal revision against the judgment of the Sessions Judge, Garoth, passed in Cri. Apps. Nos. 120-121 of 1949, on 11-2-1950, dismissing the appeals. 2. The facts of the case briefly are that there was a fair near the Police outpost of Kaitha and the police was stationed there as usual. In the 'Mela' grounds, some brahmins were preparing their food in a chowka, and it happened that four Rajputs who are the accused in the case also arrived there and they also made preparations for cooking their food nearby. The Brahmins objected to this on the ground of nearness and this trivial incident was reported to the police. The Sub-Inspector was having a bath and so he deputed one head constable Gajrasingh to get the matter settled and so he came on the spot. It may be safely assumed that some altercation took place and it is said that the head constable wanted Kanvarlal, one of the accused to accompany him to the Sub-Inspector, but the accused would not go. He resisted and it is alleged that he assaulted the head constable. Seeing this, a constable by name Sidhhanath came there and caught the hand of Kanvarlal, accused. In the meanwhile Dhanna accused also came there and he is said to have pushed and slapped Sidhhanath constable, and the situation assumed the form of melee. The Sub-Inspector also arrived on the scene and it is said that he rebuked Sidhhanath constable for his misbehaviour. The Rajputs (accused) who were said to be four in number then complained to the Sub-Inspector about their maltreatment by the head constable and the constable, and, in order to mollify them the Sub-Inspector told them that he will make an enquiry. The police did not take down the report, but to forestall them, the head constable made a report against the accused and a case under S. 353, Penal Code was recorded against them. Of the four accused, the trial Court acquitted one, convicted two (Dhanna and Kanwarlal) and sentenced them to 4 months' rigorous imprisonment and the fourth accused absconded. This order was upheld by the learned Sessions Judge. 3. Now, there are two aspects of the case to which the learned Courts below have devoted insufficient amount of attention, resulting in miscarriage of justice. 4. This order was upheld by the learned Sessions Judge. 3. Now, there are two aspects of the case to which the learned Courts below have devoted insufficient amount of attention, resulting in miscarriage of justice. 4. First is, that the F. I. Report is dated 12-5-1949, and it is by the head constable, and, the names of the accused were mentioned in it, and all of them were present on the spot, yet they were not arrested till about 1 1/2 month after the occurrence. The actual date of arrest is 26-6-1949. The question may be reasonably asked why did not the police at once arrest these people and why the arrest was made so late. The learned Government Advocate is unable to offer any explanation of the delay. But it seems that the accused first complained to the Sub-Inspector about the maltreatment, and, when they received no satisfaction, they reported the matter to the Praja Mandal and, things were then, of course, began to weave a different pattern. To me, it seems that the launching of this prosecution by the police, was by way of a counter-blast. 5. The second aspect of the matter which has received no adequate consideration is are all the ingredients of S.353, Penal Code, under which the accused were convicted proved? A reference to S. 353, Penal Code, will show that the necessary ingredients of the offence are three in number: (1) that the person assaulted is a public servant, (2) that the accused used criminal force, and (3) that when the accused assaulted the public servant, the public servant was acting in the execution of his duty. 6. Now with regard to the first ingredient, the counsel for the accused has argued that because the head constable and the constable were not in uniforms, therefore, the accused did not know that they were public servants. But by turning to the statements of the accused persons, Dhanna and Kanwarlal, it is clear that they were under no delusion as to the identity of the public servants. They have not taken the plea that they did not know that the complainants were polios constables, and I am afraid, the plea cannot be raised now. 7. But by turning to the statements of the accused persons, Dhanna and Kanwarlal, it is clear that they were under no delusion as to the identity of the public servants. They have not taken the plea that they did not know that the complainants were polios constables, and I am afraid, the plea cannot be raised now. 7. Regarding the second ingredient, there is evidence to show that Kanwarlal lifted his lota to hit the head constable, and this gesture is enough to constitute the act of assault under S. 351, Penal Code. 8. As to the third ingredient-whether the act done by the complainants was in the execution of their duty as public servants, I find that the prosecution has totally failed to prove it. Let us first be clear as to what is meant by act done in the execution of his duty. In Queen-Empress v. Dalip, 18 ALL. 246 : (1896 a. w. N. 48) it has been held that these words mean "in the discharge of the duty imposed by law on such public servants in the particular case and they do not cover an act done in good faith under colour of office." Now facts as they have been alleged are that a party of Brahmins took exception to the preparation of food by the accused near them, and the head constable went there to settle the point between two parties who did not see eye to eye with each other, and when he found that his effort proved of no avail, he wanted to take one of the accused to the Sub-Inspector, who was enjoying a bath. Can the act of the constable or the head constable be said to be in the discharge of the duty imposed upon them by law? Was it the duty of the head constable to act as an arbitrator between two parties when they disagree ? Under what provision of law did the head constable want to drag Kanwarlal to the Sub-Inspector ? And what sort of duty was the constable Sidhanath performing, that according to his own statement, the Sub-Inspector had to administer the rebuke to him. The learned Sessions Judge has described the action of the police as being under S. 273, Indore State Police Regulations. The section does not lay down as to how a breach of peace should be prevented by the police. The learned Sessions Judge has described the action of the police as being under S. 273, Indore State Police Regulations. The section does not lay down as to how a breach of peace should be prevented by the police. And in its absence, police cannot assume any power which has not been given to it by law. Section 273 if read with S. 276 means that members of the public should be treated with all possible civility and the police should be invariably polite. Can it then be said that the police was discharging its duty ? An officer exercising his official duties grossly, illegally and in an outrageous manner, cannot be deemed to be a public servant in the execution of his duty so as to bring an assault against such an officer within the purview of this section. See Ngwe Yon v. Emperor, air (18) 1931 Rang. 169 : (132 I, C. 711). 9. On a careful consideration of the above facts, I am of the opinion that an important ingredient of the offence, under which the accused were convicted is not proved, and, so I must hold the conviction to be bad in law and let off the accused. 10. The revision is accepted and holding that offence under S. 353, Penal Code, is not proved, I set aside the conviction and the sentence passed against the applicants and acquit them, and, order that accused-applicants, Dharmlal and Kanwarlal be forthwith released.