JUDGMENT

Lancelot Sanderson, C.J. - This was a Rule granted to show cause why the order complained of should not be set aside. The order complained of was an order of the learned Chief Presidency Magistrate by which he acquitted the accused, Rai Bahadur Purno Chandra Lahiri, u/s 258 of the Code of Criminal Procedure.

2. The facts which it seems to me are necessary for the purpose of my judgment are set out in the report of the case Pramatha Nath v. P.C. Lahiri 54 Ind. Cas. 63 : 21 Cr. L.J. 15 which appears in Indian Law Reports, 46 Calcutta, page 581, and I need not repeat them. That is a report of the hearing of a Rule which had been obtained by Promotha Nath Barat on behalf of his brother Provat Nath Barat. The learned Chief Presidency Magistrate had dismissed the complaint made against the accused person u/s 203 of the Code. Then the Rule was obtained: upon the hearing of the Rule the learned Advocate-General said that he could not support the order and, further, he found difficulty in supporting the contention that the Circular which was relied upon was authorized by law. Consequently, the learned Judges who heard the Rule directed that the matter should be re-heard by the learned Chief Presidency Magistrate. The complaint thereupon again came before the learned Chief Presidency Magistrate. The complaint was in respect of an alleged vexatious and wrongful detention of Provat Nath Barat, he being a Head Constable in the Calcutta Police Force, and the accused being Deputy Commissioner. On this occasion the learned Chief Presidency Magistrate acquitted the accused u/s 258 of the Code. Thereupon, the Court was again moved for a Rule and the learned Judges who heard that Rule thought that an opportunity ought to be given to the petitioner to make an application to the Local Government. Consequently, the petitioner was allowed to withdraw the application, and the learned Judges said that if the Local Government did not take action in the matter then they would hear the petitioner's application. Thereupon, the petitioner moved the Local Government, but, on the 25th of November last year, the Local Government intimated that it was not prepared to move in the matter. Consequently, this application came before the High Court again, and my learned brothers Mr. Justice Chaudhuri and Mr. Justice Newbould granted the Rule which I have now before me.

3. In my judgment, the whole question depends upon whether the Deputy Com-missioner, Lahiri, is presented by the provisions of Section 76 or the provisions of Section 79 of the Indian Penal Code. The learned Counsel who appears to support this Rule has urged that there would be a grave danger to the public if it were held that a man was entitled to take shelter and receive protection for his illegal acts under a plea of ignorance of the law. I do not intend, by anything I say, to whittle away the principle which has been for a long time accepted with regard to that matter. It is not really necessary in this case to say anything about it, for the learned Advocate General has not disputed that principle. I only mention it because the learned Counsel for the petitioner referred to it in his reply.

4. The learned Advocate General has shown cause against the Rule on the ground that the Deputy Commissioner, Lahiri, was not guilty of any offense, because, by reason of a mistake of fact and in good faith, he believed himself to be bound by law to obey the instructions of the Commissioner of Police and to make the order of the 14th of February 1919. He further urged that the Deputy Commissioner had not committed any offense because, by reason of a mistake of fact and in good faith, he believed himself to be justified in making the order which he did on the 14th of February 1919.

5. Now, as regards the good faith of the Deputy Commissioner; in the learned Presidency Magistrate's Court there was an allegation that the Deputy Commissioner had acted maliciously. The learned Magistrate, however, found as a fac