1. The questions referred to us are : (1) When a charge omits Section 149, I. P. Code, and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially prejudiced by the omission? (2) When a charge has been framed Under Sections 326 and 149, I. P. Code, is a conviction under Section 326, I. P. Code, necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge
2. The charge in the present case runs as follows: 'That you on or about the 14th February, 1923 at 2 p.m. at Sekkarakudi with a view to enforce the right to the punjai land S. No. 1162 of Sekkarakudi village, armed yourselves with deadly weapons and committed rioting and caused grievous hurt by dangerous weapons, and that you did commit murder by intentionally causing the death of Subramania Mappilaiswami Naick and thereby committed offences punishable under Sections 148, 326 and 302 of the Indian Penal Code, with Section 149, I.P. Code, and within the cognizance of the Court of Sessions of Tinnevelly Division, and I hereby direct that you be tried by the said Court on the said charge.'
3. It is clear that the charge in this case does not omit Section 149 and thus the first question referred to us does not directly arise on the facts.
4. We agree with the statement of Edge, Chief Justice in Queen-Empress v. Bisheshar ILR (1887) A 645, that Section 149 creates no offence, but is like Section 34, merely declaratory of a principle of the common law, and its object is to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. We do not think that Schwabe, Chief Justice, intended to lay down any contrary principle in C.R.C. No. 662 of 1921. Section 40, Indian Penal Code, defines ' offence ' as a thing made punishable under the Code or under any special or local law, as defined in the Code. A person could not be tried and sentenced under Section 149 alone, as no punishment is provided by the section. Therefore the omission of Section 149 from a charge does not create an illegality by reason of Section 233, Criminal Procedure Code, which provides that for every distinct offence of which any person is accused there shall be a separate charge.
5. To answer the first parts of both the questions referred to us in the affirmative would be to overlook Section 537, Criminal Procedure Code, which deals with omissions from charges.
6. The learned Judges who decided Reazuddi v. The King-Emperor (1912) 16 CWN 1077 and Emperor v. Madan Mandal ILR (1913) C 662 do not appear to have considered the effect of Section 537 upon omissions from the charge. In Sita Ahir v. Emperor ILR (1912) C 168 it was considered when a charge for a substantive offence under Section 323 was omitted. We do not agree with the general statement in the first of these decisions that it is ' now settled law that when a person is charged by implication under Section 149, he cannot be convicted of the substantive offence.' We think that when a person is charged with being a member of an unlawful assembly, one of the members of which caused grievous hurt in pursuance of the common object, there is no necessary implication that that particular member is not himself. Emperor v. Madan Mandal ILR (1913) C 662 was a clear case of misdirection to a jury which came before the High Court in consequence of a reference under Section 307, Criminal Procedure Code. Panchu Das v. Emperor ILR (1907) C 698 was another case of misdirection. Queen-Empress v. Bana Punja ILR (1892) B 260 and Abhi Misser v. Lachmi Narain ILR (1900) C 566 dealt with the legality of punishments for combined offences rather than with failures of justice caused by the omission to frame the necessary charges. The legality of the sentences passed in the present case is not before us.
7. In the present instance the name of the person to whom grievous hurt was caused (Raghurama Naidu alias Ramaswami Naicker, P.W. 7), is not mentioned in the charge.
8. Whether this omission, or the omission to charge accused 1 and 6 separately with the offence under Section 326, if in the present case there was such an omission (which Odgers, J., doubts) prejudiced those accused in their defence is a matter which the Bench which hears the appeal must deal with. It is not a part of the reference to the Full Bench. We answer the first part of second question in the negative and the second part in the affirmative.
9. I agree.
10. I agree.