The main legal point established in the judgment is the requirement for proper authorization and legal calling out for duty for the exercise of special powers by law enforcement officers.

JUDGMENT

Edgley, J. - This Rule is directed against the decision of the learned Sessions Judge, 24-Pergannas, dated 11th February 1943, whereby he affirmed the conviction of the petitioners by Mr. Ahammed, Magistrate of Alipore, u/s 41, Calcutta Suburban Police A Act (2 of 1866) and Section 853, Penal Code. The admitted facts of the case are briefly as follows: On the night of 10th August 1942, at about 10 P.M. the petitioners were found drinking and quarrelling at a place near the Kalighat Temple. They were seen by some members of the Civic Guard who asked them to desist, but, as they refused to do so, they were arrested. They then ran away to take shelter in a dala shop where they were followed by the members of the Civic Guard. An affray took place in the shop during the course of which a slight injury was inflicted on one of the Civic Guards. The petitioners were in due course placed on their trial before Mr. Ahammed and were convicted as already mentioned.

2. In the first place, it has been argued by the learned advocate for the petitioners that they should not have been convicted u/s 41, Calcutta Suburban Police Act (2 of 1866). With regard to this point, however, it appears that they were charged with having been guilty of riotous behaviour in a public street. There are findings of fact in the judgment of the learned Magistrate to the effect that they were actually guilty of such behaviour, and these findings appear to have been accepted by the learned Sessions Judge. With regard to this point, we do not think that there is any substance in the contention which has been put forward on behalf of the petitioners. The most important point which has been raised in this case is in connexion with the conviction of Jogendra Mohan De u/s 353, Penal Code. With regard to this aspect of the case, the learned advocate for this petitioner contends that his client's conviction was illegal in view of the fact that the members of the Civic Guard who attempted to arrest him were not public servants within the meaning of Section 21, Penal Code. He further maintains that, even if it could be argued that they were public servants, the Civic Guard had never been called out for duty under the provisions of Section 4 of Ordinance 8 of 1940, and that, in these circumstances, the Civic Guards who attempted to arrest the petitioner could not be said to be acting in the execution of their duty within the meaning of Section 353, Penal Code.

3. Certain papers have been placed before us by Mr. Ahmad on behalf of the Crown on the basis of which he contends that the Civic Guard in Calcutta has been properly constituted under Ordinance 8 of 1940 with effect from 26th April 1941. He also argues that these papers indicate that the Civic Guard had been duly and properly called out for duty as required by Section 4 of the Ordinance read with paras. 5, 6 and 7 of the rules framed thereunder. The first of these papers on which Mr. Ahmad relies is a letter, dated 26th April 1941, which was addressed by the Commis-sioner of Police to the Deputy Secretary to the Government of Bengal in the Homo Department. In that letter, the Commissioner of Police states that he had been directed to institute a Civic Guard Patrol in the City of Calcutta, that for this purpose the City had been divided into 208 beats and that six Civic Guards would be allotted to each beat. He further stated that this scheme was being put into force from the evening of 26th April. He mentioned the amount of expenditure that would be incurred by the institution of the scheme and asked that funds might be placed at his disposal. On the following day, the Commissioner of Police appears to have prepared some notes under the heading "Civic Guard Patrols" in which he dealt in some detail with the general organisation of the Civic Guard. He also purported to give certain instructions to the members of the Civic Guard in regard to their general duties and behaviour. On this point, the Commissioner of Poli