Judgment 1. There were eight persons on trial. All of them were charged under Ss. 147, 325 read with Ss. 149 and 353 of the I. P. C. The petitioners were convicted under S. 353 and sentenced to undergo rigorous imprisonment for four months. Petitioners Nos. 1 and 2 were convicted under S. 325 and sentenced to undergo rigorous imprisonment for eight months. The sentences were ordered to run concurrently. Five other accused persons were, however, acquitted by the trial Court. 2. The prosecution story, in brief, was that constable No. 17, Baijnath Pandey (P. W. 3) of Mirganj P. S. was on patrol duty on 3-10-70 along with another constable Md. Isha, who has not been examined in this case. At 8-30 p.m. they received information at Hathua Bazar that some dacoits had assembled and were taking toddy in the shop of Sagwan Pasi. They immediately rushed there and found that eight accused persons on trial along with 4 or 5 others were drinking toddy and on seeing the constables all of them stood up and started running away. One of them was apprehended and then, it is alleged, all the eight accused persons named in the F.I.R. started assaulting the constables with lathi and also took away the cane and torch. In that scuffle the uniform of Baijnath Pandey was torn. On these allegations a F.I.R. was lodged and investigation was taken up by the police, and ultimately charge-sheet was submitted against the petitioners and five others and they were put on trial. 3. There was common charge under Ss. 147, 325 read with Ss. 149 and 353, Penal Code, against all the petitioners and five others, that they were members of an unlawful assembly the common object of which was to assault and with that common object they had committed an offence under S. 147 of rioting. The second charge was that all of them had assaulted constable Baijnath Pandey and Md. Isha and in pursuance of their common object one of the members caused grievous hurt to them. The third charge under S. 353 was framed on the ground that these petitioners along with others assaulted constable Baijnath Pandey (P. W. 3) and Md. Isha, who were engaged in execution of their duties as public servants. 4. The prosecution examined six witnesses out of whom P. W. 3 is the informant. P. Ws. The third charge under S. 353 was framed on the ground that these petitioners along with others assaulted constable Baijnath Pandey (P. W. 3) and Md. Isha, who were engaged in execution of their duties as public servants. 4. The prosecution examined six witnesses out of whom P. W. 3 is the informant. P. Ws. 1, 2 and 4 were declared hostile by the prosecution. P. W. 5 is the Mukhiya of the Gram Panchayat, who had arrived immediately after the occurrence and P. W. 6 is the investigating officer. 5. The case of the petitioners was that they had been falsely implicated in the case because the constables wanted to take free toddy from the shop of petitioner Sagwan Pasi. It may also be mentioned here that a counter case was also filed by Sagwan Pasi against Baijnath Pandey and the other constable relating to an occurrence of the same date. A copy of the complaint has also been exhibited in this case as Ext. A. In this case three defence witnesses were examined. D. W. 1 has given counter version of the occurrence; D. W. 2 is a formal witness and D. W. 3 is the doctor, who examined injuries found on the persons of petitioner Sagwan Pasi and one other accused Ganesh Pasi (since acquitted). 6. The learned Magistrate accepted the prosecution case but held that the petitioners and others were not members of an unlawful assembly and, therefore, he acquitted all of them of the charges under S. 325 read with S. 149 and also S. 147, I.P.C. He also acquitted five other accused persons but convicted the petitioners, as stated above. 7. On appeal by the petitioners the lower appellate Court has upheld the conviction of the petitioners under S. 353 and also maintained the conviction of Bhagwan Pasi (petitioner No. 2) under S. 325, but acquitted Sagwan Pasi (petitioner No. 1) of the charge under S. 325, the result being that after the judgment of the appellate Court all the petitioners have been convicted under S. 353 and Bhagwan Pasi (petitioner No. 2) under S. 325, I. P, C. Being aggrieved by the aforesaid judgment the petitioners have preferred this revision application, 8. Learned counsel appearing on behalf of the petitioners has contended that the arrest by the constable (P. W. 3) was wholly illegal and, therefore, no offence has been committed by the petitioners under S. 353 of the I P. C. It has also been contended that the petitioners and others having been acquitted of the charge under S. 325 read with S. 149, the conviction of Bhagwan Pasi under S. 325 simpliciter was wholly illegal and unjustified, 9. The first question, which arises for consideration is whether the arrest by the constable of one of the suspects was legal and on this point there is solitary evidence of P. W. 3, the other witnesses having been declared hostile. P. W. 3 in his evidence has stated in examination in chief that when he reached in front of the toddy shop of Sagwan Pasi, he learnt that some criminals had come from outside. He entered the shop premises and arrested one of those criminals and while he was interrogating him, the petitioners along with others started assaulting him. He has further stated that the man, whom he had arrested. was released from his custody by the petitioners and others. Therefore, from the evidence, mentioned above, it is clear that P. W. 3 had actually arrested one of the persons who had assembled and only then the petitioners and others used force and got him released. The power of arrest is exercised by police officers under Ss. 54 and 151 of the Cr. P. C., 1898, which read thus: "S. 54. The power of arrest is exercised by police officers under Ss. 54 and 151 of the Cr. P. C., 1898, which read thus: "S. 54. When police may arrest without warrant - (1) Any police officer, may without an order from a Magistrate and without a warrant, arrest - first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; thirdly, any person who has been proclaimed as an offender either under this Code or by order of the State Government; fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly, any person who obstructs a police officer while In the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; sixthly, any person reasonably suspected of being a deserter from the Indian Army, Navy or Air Force; seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a, reasonable suspicion exists of his having been concerned in, any act committed at any place out of India, which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; eighthly, any released convict committing a breach of any rule made under S. 565, sub-s. (3); ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefore that the person might lawfully be arrested without a warrant by the officer who Issued the requisition. (2) This section applies also to the police in the town of Calcutta." Sec.151 reads as follows:- "A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented." 10 From the evidence of the constable (P. W. 3) it is clear that he simply learnt that some criminals from outside had assembled at the shop of Sagwan Pasi and certainly there was no information to the effect that they had actually committed any cognizable offence or were going to commit such offence. It will also be relevant to quote S. 353 of the I.P.C., "Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." From a bare reading of the aforesaid section it is absolutely clear that the accused persons can be convicted of this offence only if it is found that the public servant was executing his duty. Learned counsel for the State has submitted that the constable was simply making enquiry from the person whom he had arrested, to know whether they were criminals having some design in their mind or they were genuine persons. If this would have been the position, then the constable was perfectly justified in enquiring from the person concerned but from the evidence of P. W. 3 it is crystal clear that he had actually arrested one of those persons and then the petitioners are said to have committed the offence. Therefore, there is no material to hold that the arrest was made on some credible information regarding the participation of the assembled persons in any cognizable offence and, therefore, it is difficult to hold that the arrest, which was made by P. W. 3, was a legal one. 11. Therefore, there is no material to hold that the arrest was made on some credible information regarding the participation of the assembled persons in any cognizable offence and, therefore, it is difficult to hold that the arrest, which was made by P. W. 3, was a legal one. 11. Learned counsel for the petitioners has relied on a decision of our own High Court in Ramprit Ahir V/s. King Emperor, AIR 1926 Pat 560 in which it has been held that the detention and arrest of members of the public are not matters of caprice but are governed by and must be conducted upon certain rules and principles which the law clearly lays down. To arrest persons without any justification is one of the most serious encroachments upon the liberty of the subject which can well be contemplated. Simply from those circumstances that they are about to engage in a criminal act, therefore, there is no legal justification for the arrest of those persons by the police, and they are not guilty of rioting if they oppose their arrest. The above decision has been followed in Pagla Babu V/s. State, 1957 0 CrLJ 769 where their Lordships, on a consideration of that case and other cases of different High Courts, held that if the arrest as well as search was unlawful, contrary to law and without jurisdiction, any resistance to these unlawful acts cannot be an offence and, therefore, there is no unlawful assembly and the accused persons cannot be held guilty for such offence. In Harmohan Patnaik V/s. Emperor, AIR 1939 Pat 129, while construing S. 54 of the Cr. P. C. their Lordships held that "What is a reasonable complaint and suspicion depends on the circumstances of each case but it must be founded on some definite fact or some tangible proof which is sufficient to establish in the mind of a reasonable police officer the reasonableness or credibility of the charge, information or suspicion. Further, there must be in existence as a fact as opposed to any belief which may be entertained by any person. 12. In view of the aforesaid decisions If the arrest by P. W. 3 was illegal and contrary to the provisions of Ss. 54 and 151 of the Cr. Further, there must be in existence as a fact as opposed to any belief which may be entertained by any person. 12. In view of the aforesaid decisions If the arrest by P. W. 3 was illegal and contrary to the provisions of Ss. 54 and 151 of the Cr. P. C., 1898, then even if force was used by the petitioners, they cannot be held to be guilty of the offence under S. 353 of the I, P. C. My view is further supported by the unreported decision of S. N. P. Singh, J., as he then was, In Rangla Gope V/s. State of Bihar, Criminal Revn. No. 572 of 1962, disposed of on 6-9-1962 (Pat), where in similar circumstance the Sub-Inspector of police had arrested three persons and was taking them to the police station. When the accused persons surrounded the police officer, assaulted him and forcibly rescued those arrested persons. It was held by his Lordship that the arrest was in contravention of law without any credible information and if force was used in rescuing those arrested persons, the accused could not be held guilty under S. 353, I. P. C. 13. Now, the next point to be considered is whether Bhagwan Pasi can be convicted under S. 325, Penal Code. It has been urged on behalf of the petitioners that petitioner No. 2, along with others, was charged under S. 325 read with S. 149 and he had been acquitted of that charge. Therefore, he cannot be convicted for the specific offence under S. 235, Penal Code, There is legal distinction between the charge under S. 325 read with S. 149 and S. 325, because, in the former there was no specific charge of having caused grievous hurt. For specific charge under S. 325 Bhagwan Pasi (petitioner No. 2) had no notice that there was no specific allegation against him and, therefore, the question of prejudice will arise. I am also supported in my view by a decision of the Supreme Court in Lakhan Mahto V/s. State of Bihar, 1966 0 CrLJ 1349 and Nanak Chand V/s. State of Punjab, 1955 0 CrLJ 721 . 14. Learned counsel for the State has, however, submitted that as both the Courts below have held that it was Bhagwan Pasi, who had committed assault, this concurrent finding of fact should not be interfered with in revision. 14. Learned counsel for the State has, however, submitted that as both the Courts below have held that it was Bhagwan Pasi, who had committed assault, this concurrent finding of fact should not be interfered with in revision. It is true that the revisional Court generally does not go into the facts, but in the instant case it is necessary to find out if this finding of fact could have been arrived at all by the Courts below the charge under S. 353, Penal Code, having failed against the petitioners. There is no specific case of assault in the F. I. R. by Bhagwan. On the question of assault there is solitary evidence of P. W. 3 and there is no Corroboration, There was charge under S. 325 read with Ss. 149 and 147 against all and all of them were acquitted of the charges, Therefore, on a consideration of the charges, which I have referred to above, Bhagwan Pasi cannot be held guilty under S. 325, Penal Code. The prosecution case, as I have said, has not been accepted with respect to the offence under S. 353, which, in my opinion, is the very basis of the prosecution case, and thus the entire manner of occurrence becomes doubtful. It will be difficult to say as to how the occurrence had started and who was the aggressor. The question of right of private defence of person may also arise in view of the fact that the arrest has been held to be illegal. In such circumstances, it will be difficult to uphold the conviction of Bhagwan Pasi under S. 325, Penal Code, and he is also entitled to acquittal. 15. Thus, on a careful consideration of the points, which have been raised in this case, I am of the opinion that the charges under Ss. 353 and 325, I. P. C., have not been proved in this case. The application is, therefore, allowed and the conviction and the sentences passed against the petitioners are hereby set aside.