1. In this case the Magistrate convicted the petitioners of theft, and that was the only charge which they were called upon to answer.
2. In appeal the District Magistrate has held that no theft was committed but, at the same time, he has convicted the accused of being members of an unlawful assembly. That, however, was an offence of which they had never been accused, and regarding which they had not been called upon to enter on their defence, and it was, moreover, an offence of an entirely different character from that of theft, for which they had been tried.
3. In his explanation, the Joint Magistrate, who is in charge of the office of District Magistrate, has stated that sufficient notice was given to the accused because mention of Section 147 of the Penal Code (rioting) together with theft was made in the final report of the Police, as the offences considered to have been established, and that the accused must have been made acquainted with such report. We do not see how this applies to the present case. It is on the proceedings taken before the Magistrate that the facts constituting an offence for which a trial is held are made known to the accused, and the law is applied by the Magistrate to the facts established so as to constitute the charge which the accused is called upon to answer. Here, on the trial, the accused were called upon to answer only a charge of theft. They were never called upon to answer any other charge, and they therefore could not fairly be convicted on their appeal of an offence of an entirely different character. The conviction and sentence will therefore be set aside, and the fines, if paid, refunded.