Harington and Holmwood, JJ.
1. This is a reference by the learned Sessions Judge of Faridpore. He has referred to us an order of the District Magistrate, dated the 8th October last, directing the prosecution of the petitioners, in order that order may be reversed. The grounds on which this Court is applied to are as follows. It appears that one Golam Imam and 19 others were charged with offences under Sections 148, 326 and 302. Three of these persons were placed on their trial and acquitted. Six of the persona alleged, to be implicated in the transaction ran away, and out of these six, five appear now to have been captured and are the petitioners in the present reference, and the ground on which we are asked to interfere with the order of the District Magistrate is this: that the Sessions Judge having disbelieved the evidence in the case brought against The three persons who have been acquitted, and having express an opinion that the facts and circumstances suggested to him a very strong doubt as to the truth of the stay and he having come to the conclusion that the deceased met with his death under different circumstances, and that the story told by the prosecution before the Court did not represent the truth, this Court should say that these remaining five persons must not be prosecuted.
2. Now, it is conceded by the learned Counsel who supports the reference that there is no provision of law which renders the prosecution of these persons illegal; but it is said that we have a power, which we can exercise, to set aside the order of the District Magistrate, notwithstanding that no provision of law makes that order an illegal order, and reliance to support this proposition is placed on the case of Bishun Das Ghosh v. King-Emperor (1902) 7 C.W.N. 493. Now, that case was a peculiar one. Five persons were indicted for various offences, which included the offence of unlawful assembly, as to which it was necessary that there should be five persons. Three out of the five were placed on their trial and were acquitted. The District Magistrate, though he came to the conclusion that the acquittal was a wrong one, did not move the Local Government to appeal against the acquittal to get it set aside, but he directed two other persons who were alleged to be the other two, making up the five, to be prosecuted under Section 114 that is to say, for having abetted the offence of which the other three persons had been already acquitted; and the view that this Court took was that such prosecution, namely, that for abetment of the offence of which the others had been acquitted, ought not to proceed. That is all that was decided in that case, and in our opinion that case in no way governs the decision in the present case. In the present case, although the Judge acquitted the three persons, one of the assessors at least thought that the case was satisfactorily proved. That by no means shows that it was a clear case as the learned Counsel would have us hold. In any case, it is impossible to say that the prosecution of the five petitioners for taking part in this transaction would be unreasonable in view of what happened, though the three persons were acquitted. The five petitioners were not charged of abetting an offence, which it has been found had not been committed. There is no reason for supposing that in the learned Judge's judgment the riot did not take place which resulted in the death of one man. The result, therefore, is that this reference must be discharged and the order of the District Magistrate must stand.