R.L. Narasimham, C.J.
1. This is a petition, in revision, against the appellate judgment of the Sessions Judge of Cuttack-Dhenkanal, maintaining the conviction of the petitioner for various offences, and the sentence passed against him by Sri S. N. Rath. Sub-Divisional Magistrate of Talcher by his order dated 11-8-1956.
2. The petitioner is alleged to be one of the important labour leaders attached to the Labour Union of Villiers Colliery at Talcher. On 6-10-55 some trouble took place between the labourers of that colliery on the one hand and some of the loyal employees of that colliery on the other, in the course of which many persons were injured. Fit-teen persoas were placed on trial before the Sub-Divisional Magistrate of Talcher, including the petitioner who was said to be the principal culprit being the main instigator.
The learned Magistrate framed a charge under Section 148, I. P. C, against all the accused persons. In the charge, the common object of the unlawful assembly was stated to be 'to assault Braja Bandhu Das, M. L. Goel and others'. Three of the labourers of the colliery were specifically charged under Section 455, I. P. C., for having committed house breaking inside the office room of the colliery. Eight labourers were specifically charged with having caused hurt, under Section 323, I. P. C., to some of the loyal employees.
One of the labourers was charged under Section 152, I. P. C., for having assaulted a Police Constable in the discharge of his duties. All the accused persons, including the petitioner, were further charged under Sections 455/149, I. p. C., and similarly there was a charge under Section 323/149, and also another charge under Sections 152/149, I. P. C. against the petitioner and some of the labourers,
3. The trial Court passed a peculiar judgment. He held that four of the labourers, viz., Natha Mahanty, Bauri Mohanty, Anantha Mohanty, and Babaji Samal were guilty under Sections 148, 323 and 455, I. P. C., read with Section 149, I. P. C. He also held accused Purandar Behera guilty under Sections 148, 455 and 323, I. P. C., read with Section 149, I. P. C. Two other labourers, Palau Sahu and Dandia Jena were convicted under Sections 323 and 148 read with Section 149, I. P. C. Another accused, Sanatan, was convicted under Sections 323, 455 and 148, I. P. C., read with Section 149, I. P. C. Similarly, Dhuleswar Bastia was convicted under Section 148, I. P. C., read with Section 149, I. P. C., and Section 323 read with Section 149, I. P. C. Petitioner Nandakishore Mohanty was convicted under Sections 323, 455 and 152, I. P. C., read with Section 149, I. P. C. He was not convicted under Section 148, I. P. C., though he was one of the persons specifically charged with that offence.
4. Ten of the convicted persons appealed and the learned Sessions Judge maintained the conviction of Natha, Purandar, Bauri, Anantha and Babaji, under Section 148, I. P. C., but modified the conviction of the petitioner to one under Section 147, I. P. C., overlooking the fact that there was no conviction in his case under Section 148, I. P. C., by the trying Magistrate. He also upheld the conviction of the petitioner under Sections 323 and 455 read with Section 149, I. P. C., but set aside the conviction under Section 152, I. P. C., read with Section 149 I. P. C., and acquitted him of the offence. Some of the appellants were acquitted but it is unnecessary to refer to them in the judgment.
5. The case has not been handled with proper care either by the trying Magistrate or by the learned Sessions Judge. In the charge under Section 148, I. P. C., the learned Magistrate described the common object of the unlawful assembly as: 'To assault Braja Bandhu Das, M. L. Goel and others'' but in the charges under Sections 455/149, 152/149 and 323/149, I. P. C., the common object of the unlawful assembly was stated to be: 'To commit rioting'. The offence of rioting itself requires a specified common object as described in Section 141, I. P. C. It will therefore be meaningless for a court to say that the common object was to commit rioting.
Thus the charges under Sections 455/149, 152/149 (and 323/149, I. P. C., are defective. Moreover, the learned trying Magistrate has convicted some of the accused persons under Section 148/149, I. P. C. This type of mistake should not have been committed by a First Class Magistrate. There can be no conviction under Section 148/149, I. P. C. The question of constructive liability under Section 149, I. P. C., does not arise for a conviction under Section 148, I. P. C., because the very definition of the offence of rioting in Section 146, I. P. C., involves constructive liability. If any member of an unlawful assembly uses force or violence, all the members of that assembly would be guilty of rioting. Hence the learned Magistrate should have convicted those rioters who were armed with deadly weapons, under Section 148, I. P. C., and those of them who were not armed with deadly weapons, under Section 147, I. P. C., and should not have convicted any of the accused under Section 148 read with Section 149, I. P. C.
6. Another serious mistake committed by the Magistrate was his omission to mention expressly in his judgment as to whether he convicted the petitioner under Section 148, I. P. C., or not. Once a specific charge under that section was framed, the Magistrate must expressly say whether he convicts the accused of that offence or whether he acquits him of that offence. Though the petitioner was charged under Section 148, the judgment of the Magistrate is silent as to whether that charge was proved or not. The learned Sessions Judge also committed an error by overlooking this mistake on the part of the trying Magistrate and assuming that there was a conviction under that section by the Magistrate and that he would be justified in altering it to a conviction under Section 147, I. P.. C. It is indeed unfortunate that in cases of this type where sentences of imprisonment have been, passed the two lower courts should have committed such obvious mistake, presumably through negligence.
7. The net result therefore is that though the petitioner was charged under Section 148, I. P. C., the trying Magistrate has not passed any order, either of conviction Or acquittal in respect of that charge and the Sessions Judge has convicted him under Section 147, I. P. C. The omission of the trying Magistrate to convict the petitioner under Section 148, I. P. C., must in the circumstances be held to mean that he was acquitted of that charge. It is immaterial whether this omission was due to oversight or any other reason. Once there is, thus, an acquittal of the petitioner of the charge under Section 148, I. P. C., the Sessions Judge has no jurisdiction to alter the conviction to one under Section 147, I. P. C. The State should have moved the High Court for setting aside the order of acquittal in respect of the charge under Section 148. But this they did not do.
8. The acquittal of the petitioner in respect of the offence under Section 148, I. P. C., will also affect his conviction under Section 455/149, I. P. C., and 323/149, I. P. C. The conviction for these two offences is based on the assumption that the petitioner was a member of the unlawful assembly but his acquittal in respect of the charge under Section 148, I. P. C., must necessarily lead to the inference that he was not a member of such an assembly. Hence, his conviction under Sections 455 and 323, I. P. C., read with Section 149, I. P. C., must be set aside.
9. There seems some force in the contention of the learned Standing Counsel for the State of Orissa, that the initial mistake was committed by the trying Magistrate through oversight, and he suggested that the case might be remanded to the trying Magistrate for recording a proper order either of conviction or of acquittal in respect of the charge against the petitioner under Section 148, I. P. C.
But I am not satisfied that at this stage it will be proper to remand the case for the aforesaid purpose. The incident took place more than four years ago, i.e., on 6-10-1955, and the petitioner has been sufficiently harassed because the appeal was first heard by the Addl. Sessions Judge but the judgment was set aside by the High Court in Criminal Revision and the appeal was reheard by the Sessions Judge of Cuttack.
It will not be proper at this belated stage to revive the whole proceeding and subject the petitioner to further harassment of a conviction by the trying Magistrate and also possibly of an appeal before the Sessions Judge. The mistake was partly that of the trying Magistrate and partly that of the prosecuting officers. The latter should have noticed the omission in the judgment of the trying Magistrate and then taken steps either by way ot revision to this Court or by means of an appeal against acquittal, to get the mistake rectified.
10. For the aforesaid reasons, I would allow this revision petition, set aside the conviction and sentence passed on the petitioner by the learned Sessions Judge, and acquit him. He should be set at liberty forthwith.