1. The petitioners in this case are accused 1 to 3 and 7. They along with 11 others were charge-sheeted by the police but the Magistrate discharged the other 11 accused and convicted the petitioners alone for offences under Sections. 147 and 323, Indian Penal Code, and sentenced each of them to a fine of Rs. 26/- on each count.
2. The main contention of the learned Advocate for the petitioners is that the lower Court having discharged 11 out of 15 persons charged before it, a charge for rioting against the remaining lour is unsustainable, because for rioting there must beat least five persons. It is true that a charge for rioting cannot be framed against four persona, only. But if the charge is that these petitioners along with others, committed rioting then it would be a proper charge. But on account of the special privilege conferred on the Presidency Magistrates in the City, they need not frame a charge in non-appealable cases, though it be a warrant case, a procedure which is different from that enjoined on the Magistrates in the mofussil. I have already pointed out in another case that it is unnecessary to mention (maintain?) this distinction in the procedure between the Magistrate in the mofussil and the Magistrate in the City. Apart from the needless-ness of the distinction the procedure actually works hardship to the accused if he is tried in a case before the Presidency Magistrate in the City of Madras. As the obligation to frame a charge is dispensed with in the city by virtue of Clause 4 of Section 362, the accused does not know what exactly the charge against him is; as for instance in this case, the petitioners do not know whether the charge is that the petitioners and others constituting five and more committed rioting or whether the petitioners alone committed rioting. In the latter case they will have to be acquitted of rioting as four persons cannot in law commit rioting. In the former case if the evidence disclosed that more than four took part and the evidence is that these four along with others (who were not identified satisfactorily, took part) then the four can be convicted of rioting. Now, on account of the failure to frame a proper charge, which procedure is sanctioned by Clause (4) of Section 362, there is likelihood of failure of justice. What applies to the charge of rioting applies in this case for the offence under Section 323 as there is nothing to indicate as to who caused hurt to whom and whose hurt is the subject of the charge, so that the accused may meet it. If the petitioners are to be acquitted in this case, it is solely due to the failure to frame a proper charge which it is the obligation of a Magistrate in the mofussil to do but of which the Magistrate in the city is relieved.
3. I recommend to the Legislature to do away with this distinction and make the procedure the same for the mofussil and city Magistrates.
4. On account of the failure to frame propercharges, the petitioners have to be acquitted andthey are acquitted. The fines, if paid, will be refunded.