Ameer Ali and Stevens, JJ.
1. This Rule was granted on the application of one Ram Lochan Sarcar calling upon the District Magistrate to show cause why the conviction of the petitioner under Sections 150 and 157 of the Indian Penal Code and the sentence passed upon him should not be set aside on the ground that, in the absence of evidence indicating that the common object of the hired or assembled men was such as is stated in Section 141 of the Indian Penal Code, the facts found could not constitute an offence under those sections. We do not refer to the second portion of the Rule which relates to the reduction of the sentence as, upon consideration of the whole case we are of opinion that the conviction must be set aside.
2. In order to understand the circumstances which give rise to the application upon which this rule was obtained, it is necessary to mention that there is some dispute between the petitioner Kara Lochan Sarcar and his nephew Mohim Chandra Dutt regarding the possession of certain property. Disturbances have taken place, as found by the Magistrate, in consequence of those disputes, but with those disturbances and with the results or the prosecutions for those disturbances we are not at present concerned. It is alleged by the prosecution that Ram Lochan Sarcar has entertained in. his house the services of several lathials and he has been convicted, as already mentioned, under Sections 150 and 157 of the Indian Penal Code. It is necessary to refer to the findings of the Magistrate before we go to the law on the subject. The Joint Magistrate says:
3. 'What the accused has been doing is collecting and harbouring men for the purpose of commiting a riot should he find it his interest to do so.' That appears to contain the sum and substance of the reasons upon which the judgment proceeds. Now, Section 150 of the Penal Code provides that 'whoever hires or engages or employs or promotes or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly or himself had commited such offence.' It is clear from the language of the section that it refers to a particular unlawful assembly; in other words, when it is found that any person has hired or engaged another to join or become a member of a particular unlawful assembly, he is liable for any offence committed by any member of that unlawful assembly in the same way as if he-had been a member of such unlawful assembly or himself had committed such offence. Now, in the present case, the Joint Magistrate does not find that there has been any unlawful assembly which was composed of the persons said to have been hired by Ram Lochan Sarcar, and in the course of which some offence has been committed for which Ram Lochan Sarcar would be responsible equally with those who were- members of that unlawful assembly. It is clear therefore that the conviction under Section 150 must fail.
4. Section 157 is of wider application. It provides for an occurrence that may happen and makes the harbouring, receiving or assembling of persons, who are likely to be engaged in any unlawful assembly, an offence. There again, the law contemplates the imminence of an unlawful assembly and the proof of facts which in law would go to constitute an unlawful assembly. In the present case the Joint Magistrate appears to have found only that the petitioner Ram Lochan had collected and harboured men for the purpose of committing a riot should he find it his interest to do so. There is no fact found to suggest that an unlawful assembly, made up of the elements provided for in Section 141, was in the contemplation of the accused person, and in the absence of any such proof or any such finding, we think it impossible to maintain a conviction tinder that section. If the Magistrate is of opinion that any disturbance of the public peace is likely to take place, the saw confers on him sufficient powers to take steps to prevent the occurrence of such contingency. The law has also given power to the Magistrate to call upon anybody found loitering or wandering in the neighbourhood without any ostensible moans of livelihood to enter into a bond for good behaviour, but we do not think that, with the object merely of preventing an apprehended breach of the peace, persons from whom disturbance is apprehended ought to be convicted under Sections 150 and 157 without proof of the particular facts, which the sections contemplate as necessary to be established in order to uphold a conviction thereunder. We accordingly make the Rule absolute and set aside the conviction and sentence of Earn Lochan Sarcar. The order requiring him to give security must fail with the setting aside of his conviction.
5. With regard to the application of Mohim Chandra Dutt we have already mentioned the circumstances which gave rise to the proceedings against him. He has been convicted not under Section 157 but only under Section 150, which, as already pointed out, contemplates a particular unlawful assembly. There is no finding in the judgment of the Joint Magistrate such as would warrant his conviction under that section. We think, therefore, that his conviction must also be set aside as also the order requiring him to enter into a bond. The observations we have made regarding other steps being open to the Magistrate to insure the maintenance of the public peace in that locality apply also to this case.