Lawrence H. Jenkins, C.J. and Chatterjee, J.
1. The Rule in this case calls upon the District Magistrate to show cause why the conviction and sentence of the petitioners should not be set aside on the ground that the findings arrived at are not sufficient for making out the offence under the sections under which the petitioners have been punished, or why there should not be a re-trial of the appeal or such other order made as to this Court may seem fit and proper under the circumstances of the case.
2. It is continually overlooked by Courts of Appeal that Section 424 of the Criminal Procedure Code prescribes that the rules contained in Chapter XXVI as to the judgment of a Criminal Court of Original Jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court; and one of the sections in Chapter XXVI is Section 367, which prescribes that a judgment shall, among other things, contain the point or points for determination, the decision thereon, and the reasons for the decision. Now, the conviction in this case by the Court of first instance was both under Section 379 and Section 143. For the purpose of an offence under Section 379, it is necessary that it should be proved that there was an intention to take dishonestly any moveable property out of the possession of the person aggrieved without that person's consent; and one of the points for determination, therefore, is whether there was that intention. Admittedly, there is no finding on that point in the judgment of the lower Appellate Court. This is not a mere technical objection, because one of the points urged on the part of the defence is that, though there may have been the moving of property, there was not the intention to take that property dishonestly out of the possession of any other person, inasmuch as, it is contended, there was a bond fide claim of right; so that it is apparent that it was absolutely essential that point should be contained in the judgment, and that it should be decided. Then, again, in the treatment of the offence under Section 143, there is a similar defect. Section 143 prescribes the punishment for any one who is a member of an unlawful assembly. But before any one can be convicted of that, it must be determined that there was an unlawful assembly: in other words, the judgment should contain, as one of the points for determination, a statement as to the presence of the conditions which constitute the unlawful assembly in the particular case, and the decision thereon, bearing in mind the provisions of Section 141 of the Indian Penal Code. Admittedly, I say admittedly because on this point we allowed the complainant to make a statement before us, there is no such point contained in the judgment, nor is there any decision as to the essential elements of the unlawful assembly. In ordinary circumstances we should have sent the case back for re-hearing in the lower Appellate Court and for a fresh decision according to law; but as the sentences must have been served with the exception of two days, according to the statement made to us by the learned pleader on behalf of the applicants, we think that will be unnecessary. We accordingly make the Rule absolute in the sense that we set aside the conviction and sentence.