Balakrishna Rao, J.
1. The seven petitioners were convicted by the Special First Class Magistrate, Aska, for an offence punishable under Section 143, Indian Penal Code, and each was sentenced to a fine of Rs. 20/-.
2. They were tried for an offence under Section 144, Indian Penal Code, as also for offences under Sections 324 and 352, I. P. C. The Magistrate acquitted petitioners 1, 2, 3 and S who were also charged under Section 324, Indian Penal Code, of that offence as also petitioners 4, 5 and 7 of the offence under Section 352, Indian Penal Code. The Magistrate in categorical terms held that the offences under Sections 324 and 352, Indian Penal Code, were not proved. He also found that no deadly weapons were used.
3. Mr. G. K. Misra, the learned Counsel for the petitioners contends that there is no valid charge framed against the accused for which they can be cried; that the petitioners and the complainant were in joint possession of the land measuring 22 cents, the complainant owning only 11 cents; and that the land was being used as a Khala. He contends that when the complainant was constructing a Khala, the petitioners only objected to the said construction. Consequently, according to the learned Counsel for the petitioners, they are not the aggressors.
4. The charge runs as follows:
I, Saroj Kumar Patro, Magistrate, 1st Class, hereby charge you (1) Markanda Panda, (2) Banchha Panda, (3) Mahadev Panda, (4) Tumba Panda, (5) Gandu Panda, (6) Arjun Panigrahi, son of K. Dandapani Panigrahi and (7) Arjun Panigrahi, as follows:
That you on or about the 17th day of December 1951 at 9 A. M., at Haradapadar being armed with deadly weapons such as Kati, Bhusa, Chhela, Lathis and Khanti, which used as a weapon of offence are likely to cause death, were members of an unlawful assembly and thereby committed an offence punishable under Section 144 of the Indian Penal Code, and within my cognizance.
The second and third counts of charge under Sections 324 and 352, Indian Penal Code, against the petitioners are not necessary for the present purpose, and the last clause of the charge is:
And I hereby direct that you be tried by the said Court on the said charge.
5. It is clear from the charge framed against the accused that the most essential ingredient of the offence punishable under Section 144, Indian Penal Code, namely the common object was not specified or stated. Under Section 141 of the Indian Penal Code, an assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is - one of the five objects stated therein. The charge should contain and specify the common, object, as the assembly of five or more persons would become an unlawful assembly only if the common object stated under Section 141, Indian Penal Code is present. In a case decided by the Madras High Court Referred Trial No. 88 of 1922 (A) and referred to in the case of Parakuzhivil Ayamad v. Emperor reported in 24 Cri LJ 852 : AIR 1924 Mad 376 (B), Oldfield and Devadoss, JJ., held that the definition of common object of the unlawful assembly in the charge was too general, and that the charge contained no averment on which the accused could be held responsible for the main offence charged. They, therefore, set aside the conviction and ordered a retrial. That case was an authority for the position that even if the common object was stated in a too general way, it was sufficient to set aside the conviction. The instant case before me is a still worse case. The common object of the assembly is not at all stated in the charge.
6. Mr. A. S. Khan, the learned Counsel for the opposite party contends that what all Section 144 requires is that the assembly must be armed with deadly weapons and that fact was stated in the charge and therefore the charge is valid. But the section commences with the words
Whoeyer, being armed with any deadly weapon... is a member of an unlawful assembly, shall be punished...
The offence under Section 144 is an aggravated form of the offence under Section 143 which makes culpable a membership of an unlawful assembly and an assembly is unlawful only when the object of the assembly is one of the five things mentioned in Section 141. Consequently, in my opinion, a charge under B. 144 must specify, in addition to being a member of an unlawful assembly and armed with any deadly weapon, the common object of the assembly. The charge should have been as follows in this case:
I, (the name of the Magistrate) hereby charge you (the names of the seven accused) as follows:That you on or about the 17th day of December 1951 at 9 A. M. at Haradapadar being armed with deadly weapons such as Kati, Bhusa, Chhela, Lathis and Khanti, which used as a weapon of offence are likely to cause death, were members of an unlawful assembly, the common object of which was to assault the complainant and cut the fence which he constructed and thereby committed an offence punishable under Section 144, Indian Penal Code, and within my cognizance.
Inasmuch as the charge against the accused-petitioners does not mention the common object, the conviction of the petitioners under Section 143, Indian Penal Code cannot be sustained.
7. In this view of the matter, it is not necessary for me to take into consideration the other contentions raised by the learned Counsel for the petitioners. The dispute relates to a common Khala measuring 22 cents. The Magistrate has held that the case under Sections 324 and 352, Indian Penal Code is not proved. Under these circumstances, I do not think, any purpose is served by ordering a retrial after framing a proper charge under Section 143 or Section 144, Indian Penal Code.
8. Before closing the judgment, I cannot but observe that Magistrates should be careful in framing the charges against the accused, because they are the foundation for the trial. The forms of the charges are given in the schedule to the Criminal Procedure Code and in the notes to every section of the Penal Code in Ratanlal's Law of Crimes. They should invariably, before framing the charge, refer to the form of the charge and frame the charge according to law and not according to their whims.
9. The conviction and sentence are therefore set aside and fines, if paid, should be refunded. The revision is accordingly allowed.