1. This is a reference by the learned Sessions Judge of Meerut, recommending that the conviction of seven persons, Tufail Ahmad and others, may be set aside and the fine inflicted upon them may be remitted, on the ground of misjoinder of parties in the trial.
2. It appears that at Ghaziabad the two festivals of Shabbarat and Dulendi fell on the same day and the same evening, A sort of arrangement was agreed upon, to the effect that the firing of fire-works should be stopped till the procession of Dulendi passed off. It appears, however, that this arrangement was not adhered to, and some people, fired off fire-works, and thereby caused more or less damage and injury to the person and property of the public. On a complaint being made by one Babu Har Saran Das and others, a report was called for, and, in the result the learned District Magistrate tried the case against thirteen persons, some of whom were acquitted by him. He convicted ten persons of an offence under Section 286 of the Indian Penal Code, seven of whom are before this Court. The applicants went to the Court of the learned Sessions Judge and the plea was taken that the trial was vitiated by the fact that different people committing the offence were tried together. The learned Sessions Judge having decided to send up the case to this Court for the setting aside of the conviction, called upon the District Magistrate to submit an explanation, if any. The District Magistrate, on reconsideration, accepted the view taken by the learned Sessions Judge and expressed the opinion that he was wrong in having tried the ease summarily. He suggested, however, that the ease might be sent back for retrial, so that all the convicted persons might be sent up for trial to the Court of session on charges of rioting and arson.
3. In support of the conviction Mr. Boys appeared. An exception was taken to his appearance, on the ground that as this was a criminal ease and as there was no appearance on behalf of the Crown, ' Mr. Boys had no right to appear.
4. As I have already stated, the case appears to have been started at the instance of some private persons who said that they had suffered an injury. There seems therefore, to be no reason why those persons might not engage a counsel to represent their view of the case. It will be noticed that the learned Sessions Judge and the learned District Magistrate are not agreed entirely, although both are agreed that the conviction should be quashed. The learned District Magistrate was clearly of opinion that the convicted persons should be retried and for more severe offences than they have been convicted of. In these circumstances, I think Mr. Boys should be heard by this Court and I have heard him accordingly.
5. Coming to the merits of the case, the sole question is whether the trial can be said to be regular having regard to the provisions contained in Clauses (a) and (d) of Section 239 of the Code of Criminal Procedure. The learned Magistrate's judgment does not show that there was any common intent of the persons charged and convicted for the commission of the offence under Section 286 of the Indian Penal Code. The finding seems to be that the convicted persons, and other persons, interested in the enjoyment of the festival of Shabbarat, were already there, and these persons, and others, did not accept the arrangement made by others and threw squibs and other fire-works at random and on the passers-by. In the circumstances, each individual person must be taken to have committed an offence for himself and not on behalf of others. It is true that the learned District Magistrate says in his judgment, as regards some of the convicted persons, that they were identified with the mob that committed this offence. But this statement of fact does not amount to a finding that there was a common object and every party who joined the mob with that object was guilty.
6. Coming to the provisions of Section 239 of the Criminal Procedure Code, it appears to me that neither Clause (a) nor Clause (d) is applicable to the circumstances of this case. It cannot be said that the seven persons committed the same offence in the course of the same transaction. The offences committed by them were different although similar. Coming to Clause (d), there can be no doubt that different offences were committed, but it cannot be said that they were committed in the course of the same transaction. The expression 'same transaction' would imply oneness of purpose, which is wanting here. If, in the course of some quarrel, arising accidentally, among persons, who have collected to witness a festival, there happens to be a fight, and if some people inflict injury on others, without any common object, they would be committing different offences of hurt. But if they do not act with any common intention, it cannot be said that they have caused hurt in the course of the 'same transaction', although all the persons committing the offences are there at one and the same place and at the same time. I, therefore agree with the learned Sessions Judge and the learned District Magistrate that the trial is contrary to the provisions of Section 239 of the Code of Criminal Procedure. It has not been contended before me that Section 537 of the Code of Criminal Procedure cures the irregularity or illegality in the trial. It is true that the objection should have been taken at the trial, and it is possible that it was not taken intentionally. But the fact remains that, if several people are tried together for committing different offences all committed on their own account, justice cannot be assured.
7. The reference, therefore, must be accepted.
8. Now the question is whether I should order a retrial. The smallness of the sentence inflicted by the learned Magistrate himself shows that he never took a serious view of the matter. But he was surely of the opinion that some sentence was necessary in order that the people might behave better in future. The convicted persons have, however, been sufficiently punished in pocket by the proceedings, and I do not think a retrial is necessary in the ends of justice.
9. I set aside the convictions and sentences, and order that the fines, if paid be refunded. There will be no retrial.