1. Accused 1 to 4 and 6 in C. C. No. 3308 of 1953 on the file of the Seventh Presidency Magistrate, Egmore, are the petitioners herein. These five petitioners along with another were tried by the Magistrate for offences under Sections 147, 337, 427 and 149, I.P.C. The fifth accused was acquitted and the petitioners alone were convicted as follows : Accused 1 to 4 were convicted under Section 147, I.P.C. and sentenced to a fine of Rs. 20; they were also convicted under Section 337 read with Section 149, I.P.C. and sentenced to imprisonment till the rising of the court; in addition, they were convicted under Section 427 read with Section 149, I.P.C. and sentenced to pay a fine of Rs. 20. The sixth accused was convicted under Section 147, I.P.C. and sentenced to imprisonment till the rising of the court and under Section 337, I.P.C. read with Section 149, I.P.C. he was also sentenced to imprisonment till the rising of the court and for the offence under Section 427 read with Section 149, I.P.C. he was sentenced to pay a fine of Rs. 15.
2. This case is an off-shoot of the tramway Strike. The tramway company suspended the tram service on 12-4-1953. The accused were all tramway workers. The third accused belongs to the tramway workers' association while the first accused was the Vice-President of the Tramway Workers' Union. Except the sixth accused, the rest were all office-bearers in the Union or the Association.
3. On 24-4-1953 a large number of these tramway workers had collected at the junction of Rundalls Road and Poonamallee High Road at about 9 A.M. According to the prosecution they had collected there for the purpose of starting trouble; but according to the defence almost all the workers had come there for the purpose of taking back their ration cards, which, according to them, the labour officer promised to re-turn on that day. The police having information of the likelihood of the gathering of these persons that morning had posted police officers to maintain law and order. According to the evidence of the Inspector of Police, P. W. 1, they were shouting against Mr, 'Brookes and other officers of the company. He kept the crowd on the platform and off the road. The police were trying to disperse them and the crowd were moving towards the west on the Poonamalee High Road,
At about 9-15 or 9-20 a.m. the Traffic Manager, Vanspal, who is P. W. 3 in this case was proceeding in his car from west towards his office in Rundalls Road. Near the tramshed and near the house of Dr. Krishnaswami there was a car in front of him to turn to Dr. Krishna-swami's nursing home. The car in which Mr. Vanspal was going and which was being driven by P, W. 4, therefore, slowed down, and after the proceeding car gave way, P, W. 4 started moving slowly towards the office. The workers who were assembled there are said to have rushed at the car and pelted stones which hit the front glass pane and also the bonnet. As a result of this damage was caused to the glass pane and hurt was caused to the driver P, W. 4. The workers then are alleged to have shouted slogans 'Down with Brookes, down with the Traffic Manager' and so on. The Police then intervened and several of the workmen then dispersed. The police were able to round off about 66 persons all of whom were taken to the police station. The petitioners herein were among the 66 persons who were rounded off by the police and taken to the police station. The Commissioner of Police later released all of them on bail. The police laid the charge sheet against the petitioners alone for offences under Sections 147, 427, 337 and 323, I.P.C.
4. The evidence of P. Ws. 6, 7, 8 and 9 makes it quite clear that the petitioners took an active part and were vigorously shouting slogans and throwing stones. The fifth accused was acquitted on the ground that there was only one witness, P. W. 7 who speaks to his participation; and as he was not corroborated benefit of doubt was given to him and he was acquitted. With regard to the petitioners more than one witness speaks to their participation and, therefore, their evidence was accepted and they were convicted. No formal charge was framed against them and the magistrate simply stated that charges under Sections 147, 337, 427 and 149, I.P.C. were framed.
5. The defence of these petitioners before the lower court was this : According to the first accused he was arrested on the date of the occurrence between 8 and 8-30 a.m. and was not on the scene of offence when P. W. 3's car came and he attributes his implication on account of the instigation of someone (without mentioning who it is); he further states that because he was the President of the Tramway Workers' Association he has been implicated suggesting at the instance of the management. The second accused stated that he and the fifth accused were at Rundalls Road at about 8-30 a.m. and accused 1 and 4 were arrested by the police officers. He and accused 5 intervened and remonstrated when they were arrested and taken away to the police station. This accused stated that he was not there at the time when the car came.
The third accused stated that he was in Rundalls Road at 8 a.m. and that about 9-15 a.m. all of a sudden, the policemen asked the crowd, about 800 or 900 strong, to stop. They had gone there to obtain their ration cards from the Head Clerk of the Ration Store as previously advised. At that time two lorries and a police van came and the crowd began to melt away and the police rounded off those who did not leave the spot and he was one of those who happened to be caught. The fourth accused stated that he went to get his ration card. A clerk by name Sathu, a friend of his, entered the office. He asked him to stop and a crowd gathered. Then a sergent came and arrested him and accused 1. Accused 2 and 5 intervened and they were also taken in the lorry and marched to the police station.
The 5th accused stated that at 8-30 a.m. he also went to the office to get his ration card. Accused 1 and 4 were arrested and when he and the second accused intervened, he was taken to the police station. The 6th accused stated that he had been there to receive his ration card and he was arrested and taken in lorry to the Vepery Police Station.
6. In revision the first contention., of the learned Counsel for the petitioners was that out of the 66 workmen who were caught and rounded off these petitioners were pitched upon on account of the special position which they occupied as officers in the Union and the Association. As regards the sixth accused who does not occupy any such position it is stated that there was another person by name Munuswami who is No. 11 in the 66 rounded off and the 6th accused who was the 40th in the list was mistaken for that Munuswami and hence he was charged.
7. After going through the evidence, I am satisfied that the Police are not giving any false evidence in this case. They have no interest to implicate falsely any of these persons and the suggestion that they were trying to oblige the management is falsified by the fact that against the management also the police have filed a charge-sheet later. I accept the evidence of the police witnesses when they say that these were the six persons who were taking active part and who threw stones at the car. The next question is whether without a specific charge being framed against them for an offence under Section 147, I, P, C. they can be convicted for rioting; and if they could not be convicted for rioting, then the question of their conviction for offences under Section 149 read with Section 337 or 427 does not arise.
8. 'Rioting' is defined as:
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.
If an assembly of five or more persons have the common object to commit any of the offences mentioned in Section 141, I.P.C. then they will be members of an unlawful assembly. One of the essential ingredients of the offence of rioting consists in the members of the assembly having a common object -to do or commit one of the acts mentioned in the section. This common object is an essential element in the offence of rioting. The learned Magistrate beyond stating that charges under Sections 147. 337, 427 and 149 were framed does not state in the charge what exactly the common object was.
Under Section 362(4) of the Criminal P. C., a Presidency Magistrate is not under any legal obligation to frame a charge in cases in which no appeal lies. This is one of those clauses under which the Magistrate has to make up his mind even at the time of the framing of the charge whether he is going to give an appealable sentence or a non-appealable sentence if the guilt is made out. If it is a warrant case, it cannot be disputed that the procedure prescribed for warrant cases should be followed. The offence of rioting is a warrant offence and the procedure for warrant cases has to be followed. Only in the case of a Presidency Magistrate, the obligation to frame charge is dispensed with by Clause 4 of the section above mentioned. The result is that on account of the failure on the part of the magistrate to frame a charge, the important ingredient of the offence viz., common object of the assembly, is not made known to the accused, and they have to defend without knowing what the common Object of the assembly is.
The Magistrate in paragraph 11 of his judgment considers the points for determination and enumerates them as,
Whether the accused were members of an unlawful assembly with the common object of attacking the car, and causing damage to the car and hurt to the inmates of the car, viz., P. Ws. 3 and 4 and whether in prosecution of the common object, mischief was committed causing damage to the amount of Rs. 50 or upwards and whether hurt was caused, in prosecution of the said common object, by doing any act so rashly or negligently as to endanger the personal safety of others.
In his finding in paragraph 16 he says that the common object of the unlawful assembly was clearly to cause hurt to P. W. 3 and damage to his car, and while causing hurt to P. W. 3 by means of throwing stones, the members of the unlawful assembly knew or must be presumed to have known that they were likely to cause hurt to P. W. 4 also. ' He therefore held that the accused were members of an unlawful assembly whose common object was to cause hurt to the inmates of the car by pelting stones and to cause damage to P. W. 3's car.
If the common object was to cause hurt to P. W. 3, and if P. W. 3 was not hurt, then the common object has failed on that account. The accused are entitled to be acquitted of the offence of rioting under Section 147, I.P.C. If the common object as found by the magistrate was to cause hurt to P. W. 3 and to cause damage to his car, it cannot by any means be said that causing hurt to P. W. 4 was in prosecution of the common object of causing hurt to. P. W. 3. If the common object was to cause hurt to P. W. 3. for having caused hurt to P. W. 4, the accused can be made liable only if they were charged under the second part of Section 149, I.P.C. i.e., such as the members knew to be likely that hurt would be caused to P. W. 4.
Section 149 is as follows:
If an offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
As pointed out in 'Kumaran, In re' AIR 1942 Mad 446 (A), the words 'in prosecution of the common object' in the first clause of Section 149 must toe strictly construed as equivalent to 'in order to attain the common object.' When a person has already attained or caught up with his. object and passed beyond it, it can no longer be said to be pursuing or prosecuting it. The question therefore in this case arises 'What is it these petitioners were charged with? Under Section 149, I.P.C. were they charged that in prosecution of the common object of causing hurt to P. W. 3, these petitioners caused hurt to P. W. 4 or were they charged with the knowledge that it was likely that hurt will be caused to P. W. 4, though the common object was to cause hurt to P. W. 3
No charge was framed under Section 147, I.P.C. denning the common object of the assembly, nor was any charge framed under Section 149 as to what part of Section 149 applies. What is the case the accused have to meet is not made known to them. In the circumstances, it cannot be said that they were not prejudiced at all. If the conviction under Section 147 fails, for the failure to mention the common object, the question of conviction under Section 149 does not arise, as a conviction under Section 149 is dependent on conviction under Section 147, I.P.C.
9. It is true that there is this extraordinary provision which confers a special privilege upon Presidency Magistrates to dispense with framing of a charge in cases like the present. But strict adherence to this provision would very often result in prejudice to the accused as it has happened in this case. In future, it would be safer for the Presidency Magistrates when trying warrant cases to adhere to the procedure prescribed for it, instead of exercising the privilege conferred on them by Section 362(4), Cr. P. C. I have already once before pointed out that in the matter of procedure to be followed, there need be no distinction between a Presidency Magistrate in a Presidency Town and a Sub-Magistrate in the moffusil. A Sub-Divisional Magistrate who tries this case in the moffusil will be obliged to-frame a charge whereas in the case of Presidency Magistrate no such obligation exists. In my opinion, this distinction must be removed and the Presidency Magistrate must be placed or* the same footing as a Sub-Divisional Magistrate in the moffusil.
In the peculiar circumstances of this case, I find that the failure to frame a charge has resulted in prejudice to the accused. They are, therefore, entitled to be acquitted of the offence under Section 147. As the offence under Section 147, I.P.C. results in acquittal, the question of the petitioners being convicted under Section 149 read with Section 337 or Section 427, I.P.C. as already stated does not arise. They must, therefore, be acquitted of all the offences of which they were convicted.
10. The next question is whether they can be convicted for specific offences of hurt on a mere charge of rioting. I do not think that any accused can be convicted under Section 323 on a charge of rioting, for the simple reason that for the offence of rioting it is enough even if one member of the unlawful assembly uses violence or force. The others may not have used violence or force, but still they are constructively liable once they are members of an unlawful assembly. Still if it is proved that a particular accused's act is responsible for the hurt caused, then he can be convicted. But here such proof is lacking, as the evidence is these accused threw stones at the car. Whose stone caused hurt to P. W. 4 or damaged the car is not satisfactorily established. In the circumstances, no one can be convicted for hurt. The only other alternative is whether retrial should be ordered as pressed by the. State Prosecutor. The sentence passed on the accused are imprisonment till rising of the court and a fine of Rs. 15 or Rs. 20. In these circumstances, I do not think that ends of justice require that the petitioners should be retried Again.
11. In the result the convictions and sentences passed on the petitioners are set aside, and the petitioners are acquitted. The fines, if paid, will be refunded.