Norman Macleod, Kt., C.J.
1. It is admitted by the Sessions Judge in his judgment that the common object of the unlawful assembly was not specified in the charge. The question then is whether the accused have been in any way prejudiced in their defence by that omission, or whether they have been misled in any way, so that a failure of justice has been occasioned. The Judge said :-
It is alleged in the complaint that all the accused formed an assembly with the intention of obstructing the procession, and attacked the complainant and others with that intention, the Magistrate has recorded a finding that ' the evidence shows that the accused hud premeditated an attack, and hence were collected in a body near the house of accused No. 5 and on the road of the pro. cession.' I have gone through the record, and agree that the evidence does justify that finding. That being so, the defect in the charge, which does not appear to have prejudiced the accused in any way, does not vitiate the proceedings : see Basiraddi v. Queen-Empress I.L.R. 21 Cal. 827.
2. In that case certain persona were charged with rioting and it appeared that the charge did not specify any common object, and that neither the judgment of the original Court nor that of the Sessions Judge in appeal found even what was the common object which made the assembly of which the prisoners were members an unlawful one. It was held that those defects did not vitiate the proceedings, there being ample evidence on the record to prove what the common object of the assembly was, and to justify the conviction for the offence of which the lower Courts had found the accused guilty.
3. Their lordships said (p 831.) :-
We think that we ought not to grant a rule for such a purpose, unless we should be prepared, on the materials on which we grant it, to make it absolute, or, in other words, to acquit the prisoners, if no cause were shown againstit, and we certainly should not be prepared to acquit these persons, merely in consequence of the defects which I have pointed out in thecharge, and in both the judgments; because it must be evident that notwithstanding them there may be ample material, in the evidence on thisrecord, on which we should ourselves be prepared to convict the prisoners of the offence of rioting, and to inflict the same punishment, which has been inflicted upon them by the Deputy Magistrate. We accordingly invited Mr. A pear to place the evidence before us with the object of showing us that, upon it, the prison-era ought not to be convicted of rioting. He has done so, to some extent, and we have ourselves since examined it, and so far from thinking that we ought to acquit the prisoners, we think that there is ample evidence here, which we see no reason to disbelieve, that they were members of an assembly, the common object of which was to prevent, by force, traders from resorting to the new hat.
4. It is clear then that that case was a far stronger one than the case before us. Here the complaint specified the common object, and both the Magistrate and the Sessions Judge in appeal have found that that was the common object of the accused.
5. We have been referred to the case of Sabir v. Queen-Empress I.L.R. (1894) Cal 276. There was an appeal from a conviction upon the unanimous verdict of the jury that the accused were guilty under Sections 148 and 149, Indian Penal Code, Their lordships said (pp. 284, 285):-
Before we can say that there ought fco be a conviction under Section 147, we must be satisfied that the jury have found an unlawful common object, It is impossible for us to say, on the findings, whether they have given their verdict upon the unlawfulness of the common object to injure Nidu, or the unlawfulness of the common object to bake the mangoes. It may well be, and, in dealing with these matters one is bound to consider the matter most favourably to the accused, that they preferred to acc3pt the view that the common object was to injure Nidu, inasmuch as it did away with the necessity of coming to any conclusion on the question of the possession of the orchard. If they found that the common object of the assembly was to injure Nidu, that would be enough) and they need not find the other. But there is no charge whatever on this head; an entirely different common object has been charged.
Our attention has been called to Section 225 of the Code of Criminal Procedure which provided that ' no error in stating the particulars, required to be stated in thecharge, and no omission to state those particulars, shall be regarded at any stage of the case as material unless the accused was misled by such error or omission ', In a case of this kind there may be evidence of a variety of common objects, but here, so far as we can see, it is impossible for us on the evidence as it stands and having the charge there is ab present, to say that the jury accepted either one or the other of those common objects. They accepted one, it is true, but which one they accepted it is impossible forus to say. It may make a difference in the case if, as a matter of fact, they aooepted the case that the common objecb was to injure Nidu. But that was a common object that was never charged at all and the accused person had no opportunity of meeting it.
6. That seems to me to be a very different case and it was decided on its own facts, I think that the decision in Basiraddi v. Queen-Empres I.L.R. (1894)Cal. 827 is directly in point. Here there can be no doubt that the accused have been in no way prejudiced by the omission in the charge of the common object of the unlawful assembly, and there is ample justification for applying the provisions ofs. 225. We, therefore, dismiss the application.