1. We agree with the Sessions Judge in thinking it doubtful and arguable whether the part taken by the accused amounted to waging war under a, 121, Indian Penal Code. We have purposely not entered into the merits of the case on the evidence, but the Sessions Judge finds that the accused had only a stick, he was not otherwise armed or dressed in uniform. We do not for a moment suppose that he was as alleged, innocently walking along the road, but the Police after killing or wounding other Mappillas forced the mob to retire, and the mob then dropped their weapons and 38 of them were arrested. This is admittedly the first incident in the rebellion and we do not express an opinion that it was or was not an act of war. We think it doubtful, and we think the accused is entitled to the benefit of that doubt Further the accused was summarily convicted by a Magistrate having no jurisdiction on 6th September 1921 under Section 149 as far as we can make out from the vague judgment of the Magistrate. This was subsequently set aside by the High Court on habeas corpus proceedings which ended on 30th August 1922. The Government did not either in 1921 or till 8th December 1922 decide to prosecute this accused under Section 121. We cannot understand this delay and we think it hard that the accused having succeeded before the High Court and never having been charged under Section 121, Indian Penal Code should now be further pursued on that charge.
2. The Sessions Judge refused to find whether the facts proved against accused amounted to waging war or not, but convicted accused, under Section 147, of rioting. There is no appeal with regard to this. We should add that the habeas corpus proceedings were not completed till 11 months of the accused's sentence of two years had been served.