1. The charge against the accused was under Sections 148 and 325, Indian Penal Code. The Magistrate acquitted the accused under Section 148 hut convicted them under Section 325. The accused then appealed to the Sessions Judge who was of opinion that the accused should have been convicted under Section 147, Indian Penal Code, but though he could not interfere with the acquittal. Here the Sessions Judge was clearly wrong under Section 423(b)(2) of the Code of Criminal Procedure, the appellate Court may alter the finding maintaining the sentence and there is nothing to restrict the finding which may be altered to a finding of conviction. We agree with the decision in Queen-Empress v. Jubanulla 23 C. 970, which cannot, we think, with respect, be distinguished in the manner in which it was sought to be distinguished in Sami Ayya v. Emperor 20 M. 478 : 13 M.L.J. 263. In the Calcutta case there was no appeal by Government against the acquittal, but the High Court was dealing with an appeal by the persons who have been convicted. In Sami Ayya v. Emperor 20 M. 478 : 13 M.L.J. 263 also there is no reference to the wording of Sections 423(b)(2), Code of Criminal. Procedure, Abhi Misser v. Lachmi Narayan 27 C. 566 : 4 C.W.N. 546, upon which the Sessions Judge relies does not seem to us to have any hearing as it proceeded on the view taken by the learned Judges on the facts. If the Sessions Judge finds the accused guilty of rioting, he may then consider whether by virtue of Section 149, Indian Penal Code, the conviction under Section 325, Indian Penal Code, may or may not be sustainable.
2. We, therefore, set aside the acquittal and direct the re-hearing of the appeal.