1. The facts of this case are as follows:--A man named Niasha Bairagi informed the Police on April 28th that he and his mother and his sister Rangamoyi had been living in the house of Kala Nath Burman, the first petitioner, but on that day were leaving it to go to the house of a man of their own caste, when Kala Nath and the other petitioners carried off Rangamoyi by force. He asserted that Rangamoyi was less than sixteen years old. The girl could not be found but the petitioners were placed on their trial, and during the trial the girl was recovered. Four of the petitioners were charged with kidnapping a minor girl under Section 363, Indian Penal Code, and also with rioting under Section 147, Indian Penal Code, the common object being set out as to kidnap Rangamoyi. The fifth man, Padma Nath, was charged only under Section 147, Indian Penal Code.
2. The learned Magistrate found that Rangamoyi was not proved to be under sixteen years, and he, therefore, held that the charge of kidnapping could not be sustained, and that in consequence the charge of rioting with the common object of kidnapping also failed, and he acquitted the petitioners of both charges. He held, however, that the story as told by the prosecution witnesses was true, and he convicted the petitioners, under Section 143, Indian Penal Code, of being members of an unlawful assembly, the common object of which was to commit criminal assault and wrongful restraint, and he sentenced four of them to undergo three months' rigorous imprisonment each, and Padma Nath to undergo two months' rigorous imprisonment. In discussing the intention of the petitioners he remarked that it was not to seduce the girl, and that in fact she had not been injured, but he thought she had been confined, and he seems to think that she was carried off in order to be confined.
3. The petitioners preferred an appeal, and the learned Judge accepted the argument put forward on their behalf that the conviction was bad in law, meaning that as the petitioners had been acquitted of the charge of rioting in order to kidnap Rangamoyi, they could not be convicted of being members of an unlawful assembly with a different common object. He set aside the convictions and sentences, but at the game time he ordered the petitioners to be tried afresh on charges of abducting Rangamoyi in order to confine her secretly and of rioting with that common object.
4. The petitioners obtained this Rule calling upon the District Magistrate to show cause why the order directing their re-trial should not be set aside, on the ground that they are entitled to the protection of Section 403, Criminal Procedure Code. In showing cause the learned Magistrate relies on the second clause of that section, and Mr. Orr for the Crown has adopted that line of argument, and the question is whether the manner in which Rangamoyi is said to have bean carried off forms a series of acts such as is described in Section 235(1), Criminal Procedure Code, or an act or series of acts such as is described in Section 236, Criminal Procedure Code. It must be borne in mind that the retrial which has been ordered relates to precisely the same acts on the part of the petitioners as the acts which formed the subject matter of the charges on which they were tried and acquitted, and not to the subsequent acts of confinement which are said to be have been committed.
5. The question is a difficult one. Looking, however, to the words of Section 235(1) and to the examples given in illustration of that clause, I think it is very doubtful whether we can say that in this case, leaving aside the matter of rioting, more offences than one were committed. On the other hand, I think we may say that the case was one in which the act was of such a nature that it was doubtful which of several offences the facts which could be proved would constitute, and, therefore, the petitioners might have been charged with all or any of such offences, or they might have been charged in the alternative with having committed some one of those offences, and in consequence they might, under Section 237, have been convicted of the offence which they were shown to have committed although they were not charged with it. If the trying Magistrate had framed the charges with a little more care, he would not have drawn them in such a way that failure to prove Rangamoyi to be under sixteen years of age was bound to lead to an acquittal on the particular charges framed. The result of his want of reflection is, in my opinion, that the petitioners are entitled to the protection of Section 403, Criminal Procedure Code. I think, therefore, that the Rule must be made absolute, and the learned Judge's order directing the retrial of the petitioners under Section 355, Indian Penal Code, and Section 147, Indian Penal Code, should the set aside. On the question, whether further proceedings can or should be taken in respect of subsequent acts alleged against the petitioners or some of them, I express no opinion.
6. I agree.