1. The question of law raised in this case is whether a person who is a member of an unlawful assembly is guilty under Section 148 of the Indian Penal Code when he himself is not armed with a deadly weapon but some other member of the assembly is so armed; in other words whether a person who is a member of an unlawful assembly can be punished under Section 148 read with Section 149. The contention of Mr. Ethiraj is that Section 148 does not create a separate or new offence; it provides only for a heavier punishment in the case of rioters firmed with deadly weapons or with anything which used as a weapon of offence is likely to cause death. He relies strongly upon Sabir v. Queen-Empress ( ILR 1894) Cal 276. Though the head note of the case is in favour of Mr. Ethiraj's contention, yet the observations of the learned Judges do not go the length of head-note. What the learned Judges observe is:
It is only the actual persons who are so armed who can be charged under that section (meaning Section 148). The only way in which one person can be made liable for the acts of another is under Section 149. 'There being no case under Section 148 we think thai the conviction is wrong under the latter S. and must be set aside.
2. In re Choitano Ranto. (2) simply follows Sabir v Queen-Empress (1). 'Offence' is defined in Section 40, Indian Penal Code, as denoting anything made punishable by this Cod.' and in certain cases punishable under any special or local law. Section 148 does not merely provide for a heavier punishment in certain cases but actully deals with an aggravated form of rioting Force is not an essential ingredient of the offence of being a member of an unlawful assembly. If any member of an unlawful assembly uses force in prosecution of the common object then it becomes rioting under Section 146, which runs as follows:
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
3. A person guilty of rioting if armed with a deadly weapon commits an offence under Section 148. A good deal of argument has been advanced by Mr. Ethiraj on the wording of Section 148. His contention is that, if it is an offence, the wording would have been 'whoever is guilty of the offence of being armed with deadly weapon shall be punished with imprisonment', etc. It is unnecessary that the words 'is guilty of the offence' should be found in every S. which defines an offence. Assault becomes hurt and is punishable under Section 323 if bodily pain is caused. If the hurt is grievous, it is punishable under Section 325 and if the grievous hurt is caused by a dangerous weapon it is punishable under Section 326. Similarly Section 148 provides for the punishment of a more serious offence than mere rioting. Mr. Ethiraj does not contend that if the weapon is used in prosecution of the common object of the assembly all of them would nor be guilty by reason of Section 149, but says that if it is carried without being used, then only the person or persons carrying the deadly weapon are guilty under Section 148 and not others. An unlawful assembly is defined as an assembly of five or more persons whose common object is, by means of criminal force or show of criminal force, to obtain possession of any property or to compel any person to do what he is not legally bound to do, etc. In order to show criminal force it is necessary to carry arms and if a deadly weapon is carried, though the weapon is not used, that weapon is carried in furtherance of the common object, and it cannot therefore be said that the person who carries the weapon carries it only on his account. Where an act is committed by a person which is not an essential ingredient of the offence which is intended to be committed by a body of persons, no doubt the other persons composing the body would not be liable for the act of a single individual; he does it on his own account. But, where the carrying of a deadly weapon cannot but be in prosecution of the common object, it cannot be said that the other persons composing the unlawful assembly cannot be punished under Section 148 read with Section 149.
4. Reliance was placed upon Arnnachala Thevan v. Emperor (1911) 22 M L J 186. In that case Ayling, J., held that Section 394 and not Section 397 will apply to the case of a robber who does not himself cause grievous hurt or use any deadly weapon. It is not an essential ingredient of dacoity that grievous hurt should be caused, nor is it an ingredient of the offence of dacoity that a deadly weapon should be used. Any person who causes grievous hurt or uses a deadly weapon is therefore punishable under Section 397 or Section 398. But if in order to the committing-of dacoity a deadly weapon was necessary or grievous hurt was caused, all the dacoits would be equally guilty under Section 397 or Section 398. It is not necessary to discuss therefore the decisions in Emperor v. Alt Mirza ILR (1923) C 265; Emperor v Dulli (5); and Emperor v. Nageshwar ILR (1906) A 404. Under Section 34 of the Indian Penal Code, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The Privy Council has applied this S. in the well-known Post Office murder case. Where an assembly is an unlawful assembly, Section 149 makes every one of the members of the assembly guilty of any offence which is committed in prosecution of the common object of the assembly. If a deadly weapon is carried without the knowledge of the other members of the assembly for the private ends of a particular individual, no doubt the other persons would not be guilty under Section 148. But where that fact is not made out, but it is shown that one or more of the members of the assembly carried a deadly weapon it cannot be said that the weapon was not carried in prosecution of the common object; and therefore all the members of the assembly are guilty under Section 148. The next contention is that the common object has not been made out. The common object has been clearly made out in the evidence and we do not think that the petitioners have in any way been prejudiced by the common object not being explicitly stated. Mr. Ethi-raj pleads for a lenient sentence. The petitioners have already undergone two months' rigorous imprisonment and taking all the circumstances into consideration we think that the period of imprisonment undergone by the petitioners would be sufficient punishment in the case.
5. We therefore reduce the sentence to the period already undergone by the petitioners.
6. I agree. The ruling relied on Sabir v. Queen-Empress ILR (1894) C 276 lays down no more than that only the person actually armed can be charged under Section 148, Indian Penal Code. What, however, the Judges appear to have overlooked was that the man they acquitted had, as a matter of fact, been charged under Section 148 read with Section 149, Indian Penal Code. Had they not done so, they would presumably not have acquitted him.