Hridoy Mondal or Bangal and Others vs Jagananda Das

An Excise Sub-Inspector, on receiving information that some persons were distilling liquor in the jungles, proceeded thither and, finding that his information was correct, he arrested two persons. He then took these two persons to a neighbouring village for the purpose of pursuing his enquiry regarding the breach of the excise rules by those persons. It is unnecessary to consider what he did in this respect. That really forms no portion of the trial before us. While the Sub-Inspector was in this village with the two persons whom he had lawfully arrested under sec. 39 of the Excise Act, he called upon the Punchayet (Nunda Mondal) who is one of the Petitioners now before us to render him assistance in the matter of the investigation. It seems that, instead of doing so, the Punchayet was the means of assembling the villagers and that they then proceeded to rescue the two prisoners who had been in charge of the Excise Sub-Inspector. It is unnecessary for the purposes of the matter before us to consider the terms of sec. 40 of the Excise Act. It is sufficient for the purposes of the case to hold that the arrest which was made under sec. 39 was a lawful arrest. The Petitioners before us have been convicted by the Magistrate of rioting (sec. 147, I. P. C.) of assaulting and using criminal force to public servants, viz., the Excise Sub-Inspector and his peons in the discharge of their duty as such and also of having forcibly rescued the two persons who had been arrested by the Sub-Inspector from his custody in which they were lawfully detained.

The Sessions Judge in appeal confirmed the conviction and sentence passed by the Magistrate. Objection has been taken before us that there are no sufficient findings in the case to support the convictions. We think that the findings of the Magistrate in his judgment, read with the charge in the case, are ample for the purposes of conviction, and we see no reason for holding that the judgment of the Sessions Judge in appeal is not a proper judgment. The only point, raised by the learned counsel for the Petitioners on which we had any doubt, relates to the separate sentences passed under sec. 147 (rioting), as well as under sec. 353 (assaulting public servants while acting in discharge of their duty). We observe that though a separate conviction is also recorded under sec. 225, I. P. C., no separate sentence was passed. The Petitioners were sentenced to receive three months'' rigorous imprisonment under sec. 147 and a similar sentence was passed on them under sec. 353. Having regard to the judgment of the Full Bench in the case of Nilmoney Poddar (1), we think that separate sentences should not have been passed under those two sections for practically, the offence under sec. 353 was the common object of the lawful assembly, the members of which committed the riot. At the same time we think that the separate sentences which have been passed should be considered really as one sentence consolidated so as to meet the offence of which the Petitioners have really been convicted. We accordingly direct that, in substitution for the two sentences passed on the Petitioners by the Magistrate and affirmed by the Sessions Judge, one sentence of six months'' rigorous imprisonment be recorded and any part of the sentence which has already been undergone should be regarded as portion of such sentence.