1. The petitioners in this case (Accused Nos. 4 to 9, 11, 12, 14 15, 16, 19 to 21, 23 to 27) were convicted along with others, under Section 143, Indian Penal Code, and Section 126 of the Railways act.
2. The propriety of the conviction under Section 143, Indian Penal Code, has not been questioned before us. As to the other it was contended before us that the conviction is erroneous as no specific acts on the part of the accused in respect of the Railway line have been proved. The prosecution evidence merely amounts to this, viz., that the accused were members of a large mob of abort 500 Moplahs some of whom (not identified with the accused) removed rails from the line, damaged the points and signals and out the wires of the bock system.
3. The learned Public Prosecutor contends that the conviction is right, if considered as one under Section 126 of the Railways Act read along with Section 149, Indian Penal Code. Assuming this contention may be ultimately upheld though it is opposed to the decision in Criminal Appeal No. 191 of 1922 [Aydroos v. Emperor 72 Ind. Cas. 360 : (1922) M.W.N. 800 : 17 L.W. 21 : A.I.R (1923) (M.) 187 : 24 Cri. L.J. 360] there is the further difficulty in this case that the accused were not charged under Section 126 (Railways Act) and 149, Indian Penal Code. No reference is made to Section 149, at any stage of the proceedings in the Court below. The learned Public Prosecutor contends that it is unnecessary to mention it, that it does not create a new offence, that the application of the section is analogous to the application of Sections 34 and 35 and 114 of the Code. It may be that, to a certain extent, it is analogous to Section 114. But, on the other hand, it may be that the omission to refer to the section in the charge is a serious defect and considerably prejudi es the accused. In Referred Trial No. 85 of 1922 Old field and Devadoss, JJ., held that the conviction under Section 302 was bad when it would be sustained only under Sections 149 and 302, Section 149 not being mentioned in the charge. I agree with this decision. In Criminal Revision Case No. 662 of 1921 His Lordship the Chief Justice, dealing with the converse contention that the only charge was under Sections 149, 353 and 341 and that there was no charge under Sections 353 and 341 separately, say: 'It is intended to charge these persons and does charge them both with the offence under Section 149 and also separately with the offences under Sections 353 and 341.' This language suggests that the offence under Section 149 may be regarded as a separate offence. However this may be, I do not think it is necessary to lay down a different rule from that laid down in Referred Trial No. 85 of 1922. The contention of the learned Public Prosecutor must, therefore, be disallowed. I agree with my learned brother in thinking that this is not a matter in which it is necessary to order a re-trial having regard to the time that has elapsed.
4. The result is, the revision petition must be allowed so far as the conviction under Section 126 is concerned and the rest of it is dismissed. The accused will undergo only the sentence of six months' imprisonment with reference to the conviction under Section 143, Indian Penal Code.
5. The petitioners in this case have been convicted inter alia of an offence under Section 126, Indian Railways Act, the conviction being by force of Section 149, Indian Penal Code. A technical plea is raised on their behalf that since the charge found against them made no mention of Section 149, Indian Penal Code, the conviction by force of that section is illegal, and the point for decision is whether, when an accused person is convicted of an offence constructively by force of Section 149, Indian Penal Code, it is necessary that the charge should have set out that section.
6. It is obvious that Section 149 is not a section which creates in itself an offence. The offence committed was one under Section 126, Indian Railways Act, and that offence was set out in the charge. Hence Section 221, Criminal Procedure Code, his been complied withy But appeal is nude, I presume, to Section 223 and I am of opinion that that must prevail. I think it was essential that the petitioners should have had notice that the charge under Section 126, Indian Railways Act, was a charge not that they had themselves physical taken part in that offence, but that they were members of an unlawful assembly, which, in prosecution of its common object, committed that offence, or that they, being members of that assembly, know that such offence was likely to be committed by it in prosecution of its common object. This was, in my opinion, essential in order to give petitioners sufficient notice of the matter with which they were charged. Otherwise the petitioners would not definitely know which of three charges i.e., the charge of the substantive offence, and the two alternative charges by force of Section 149, they were being called upon to meet.
7. The inclusion of Section 149 in the charge also ensures that the Court has given and will give its mind to the question of the guilt of the accused from the point of view of that section. The Judgment in this case shows no indication that that was done.
8. I hold, therefore, that Section 223, Criminal Procedure Code, was not followed and that the charge thus was defective and erroneous. The next question will be whether the petitioners were in fact misled by such defect or error, so that it has occasioned a failure of justice (Section 225). I think there can be no doubt that it has prejudiced the petitioners defence. It may well be that the effect of Section 149 may be different on different members of the same unlawful assembly [See Jahiruddin v. Queen-Empress 22 C. 306 : 11 Ind. Dec.205.]. So far from considering this aspect of the case, the lower Court has not even recorded a finding as to what the common object of the unlawful assembly, while the appellants were members of it, was or whether petitioners knew that an offence under Section 126, Indian Railways Act, was likely to be committed by it it prosecution of its common object. In addition to this, the charge, as it stands, might well lave led the petitioners to believe, as they plead, that they were called upon to answer a charge of having the mselves physically taken part the destruction of the Railway, to support which there was no evidence on the prosecution side.
9. I would, therefore, agree with the order proposed by Ramesam, J. Considering the time that has clapped since the offerce I agree that this is not a case for ordering a re-trial for the offence under Section 126, Indian Railways Act, by force of Section 149, Indian Penal Code.
10. I would add that, to comply strictly with the law, a Court trying an accused person for an offence which is an offence by force of Section 149, Indian Penal Code, ought to state that fact and name that section in the charge.