JUDGMENT

1. The two applicants, Madho and Ramanand, have been convicted u/s 332 of the Indian Penal Code, for having caused simple hurt to a constable named Ram Partit and each of them has been sentenced to nine months' rigorous imprisonment. They have also been bound" down to keep the peace for one year u/s 1C6 of the Code of Criminal Procedure The facts as found are these. The two men with a third man named Mataphal Were returning from the Cantonment Magis. trate's Court and when they were nearing the pontoon bridge the constable Ram Partit, who was on duty, found that they were all armed with what the Magistrate calls formidable lathis. The constable enquired who they were and on being told that they were servants of a pragwal, he asked them to give up their lathis if they were not prepared to go to the thana. The men refused to surrender their lathis. The constable then told them that he would not allow them to proceed. Thereupon Madho attacked, him with a lathi and struck him several times. Ram Partit rushed at Madho and seized him by the waist and the two grappled with each other. Ramanand then struck Ram Partit with his fists until another constable appeared on the scene. For this offence the two applicants have been convicted and sentenced as stated above.

2. It is contended that the conviction u/s 332 of the Indian Penal Code is illegal, inasmuch as the constable Ram Partit who was undoubtedly a public servant Was not in the discharge of his duty as such public servant when hurt was caused to him. It appears that in August 1914, the District Magistrate of Allahabad issued an order (which appears to have been published in December 1914), to the effect that no pragwals or their servants should carry lathis within the Municipal limits of Allahabad or the Cantonment or the riverside and that the Police had instructions to seize any lathis or dandas found in the possession of pragwals or their servants. It is in pursuance of this order' that the constable ' is said to1 have been acting. If the order was a legal order arid was in force at the time when the occurrence in the present case took place the applicants have been rightly convicted. The only authority, as far as I am aware (and I have not been referred to any other) under which the order could legally have been passed, is paragraph 3 of Section 144 of the Code of Criminal Procedure, being an order, issued to the public generally and not to any individual. Under paragraph 5 of the same Section no order passed under the section shall remain in force for more than two months from the making thereof, unless in certain cases the Local Government by notification in the official Gazette otherwise directs. If the order in the present case was made u/s 144, it ceased to have operation after the expiry of two months from the date of it. It has not been stated or shown on behalf of the Crown that this order was repeated at any subsequent time and, therefore, I must take it that it ceased to have force at the time when the offence in the present case was committed. In the case of Queen-Empress v. Dalip 18 A. 240: A. W. N. (1896) 48: 8 Ind. Dec. 871. which was in some respects similar to the present case, it was held that the words "'in the discharge of his" duty as such public servant" in Section 332 of the Indian Penal Code mean in the discharge of a duty imposed by law on such public servant in the particular case. If the order issued by the District Magistrate in August 1914 ceased to have effect after the expiry of two months from the date of issue, the constable in carrying out the order could not be said to have been acting in the discharge of a duty imposed by law on him. The learned Government Pleader has referred to Section 23 of the Police Act (V of 1861) and has contended that it was the duty of the constable to obey and carry out the order issued by the District Magistrate, no matter whether that order was justified by law or not. The answer to this contention is affo