1. This is a reference by the Sessions Judge of Dharwar who invites us to set aside the conviction of the accused on the ground that the trial was illegal inasmuch as the case was dealt with as a summons case whereas, in the view of the learned Sessions Judge, it should have been dealt with as a warrant case. The accused was convicted under Section 117, Indian Penal Code and Section 17 (1), Criminal Law Amendment Act, XIV of 1908, the offence being that he was a member of unlawful associations, viz., the Congress Committee and Seva Dal at Hubli, and as such member spoke at a meeting convened under the auspices of the said associations on 30th November, 1930, exhorting the audience numbering more than ten to break the census laws, Clause (c), Section 10, Act X of 1929. The associations in question had been declared unlawful on 10th November, 1930, so that there is no question that the accused committed an act of membership after the declaration of illegality.
2. With regard to the point referred to us by the learned Sessions Judge, under the definition of a warrant case in Section 4, Sub-section, (w), Criminal Procedure Code, a warrant case means a case relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months and a 'summons case' means a case relating to an offence and not being a warrant case. Under Section 117, Indian Penal Code, the offence of abetment is punishable with a maximum penalty of three years. Under Section 17 (1), Criminal Law Amendment Act, XIV of 1908, the offence charged is punishable with imprisonment for a term not exceeding six months or fine. Under Schedule II, Criminal Procedure Code, in cases under Section 117, Indian Penal Cods, arrests may be made without warrant if the arrest for the offence abetted may be made without warrant but not otherwise, and the case may be dealt with as a warrant or as a summons case according as a warrant or a summons may issue for the offence abetted. It seems to me that, reading these provisions of the Schedule to the Code with the definitions to which I have referred it comes to this, that if you are dealing with a charge of abetment of a specific offence, which offence is a summons case, then the abetment is also a summons case. The question whether in such a case a greater penalty than six months' imprisonment under Section 117, Indian Penal Code, could be imposed does not arise in this case, because the sentence passed under Section 117 was six months' rigorous imprisoment which was the same sentence as that passed under Section 17 (1), Criminal Law Amendment Act, both sentences to run concurrently. In my view the case was properly tried as a summons case, there was no illegality, and we, therefore, make no order on the reference.
3. I agree that there is no illegality in the conviction and sentence and that no order should be made.