1. The four applicant and five others were convicted by a Magistrate of the first Class at Etawah on what is probably one of the most remarkable charges over framed under Sections 147 and 325, Indian Penal Code. The charge runs that you on or about September 20th, 1914. at Uhasan (or elsewhere) fought against Kallu Singh or Hulas Singh (and perhaps others) with latins and inflicted grievous hurt on the head of Kallu Singh'. It appears that the Police had reported as the result of an inquiry held under Section 202, Criminal Procedure Code, that there had been no riot at all but that there had been an affray with four men on each side. On the evidence recorded by him the Magistrate came to the conclusion that the facts were that when the complainant, Kallu Singh, was passing the door of one Mahindar Singh the latter challenged him; Kallu Singh maintained that he had a right to pass that way and was set upon and beaten to the ground; that Kallu's brother, Hulas Singh, who followed a short distance behind was also beaten. Both Kallu Singh and Hulas Singh said that all nine accused persons had joined in the attack. The nine men having been convicted by the Magistrate appealed to the Sessions Judge, who disbelieved the witnesses examined by the Magistrate and sent for and examined another batch of witnesses and on the strength of their evidence, came to the conclusion that what had really happened was that lathis had been snatched away from two men named Pobpa and Behari, that they accompanied by Kallu Singh and Hulas Singh went to demand the return of the lathis from the accused, Debi Singh, and the two complainants were beaten by Debi Singh, Gambhir Singh and two sweepers, Saktu and Kanhaiya, These four are the applicants before me. It is impossible to say that the case accepted by the Sessions Judge is not covered by the charge framed by the Magistrate. For that charge would cover any violent attack on the complainants made by any of the accused at any place whether in the village or out of it, but notwithstanding the charge the case for the proseartion must be taken to have been that presented by the witnesses examined by the Magistrate. Neither the story told by those witnesses nor the story told by the witnesses called by the Sessions Judge appears to he a probable one. It is not unlikely that both are false. In my opinion the powers conferred by the Code of Criminal Procedure upon a Court of Appeal are not intended to be used in the way in which they were used in the present case. A totally new case was sprung up on the accused by the Court of Appeal and the accused were given no proper notice of the charge which they had to meet. I set aside the convictions of the applicants and the sentences passed on them. If they are in custody, they must be released. If they are out on bail, the bail will be discharged.