1. This was a Rule calling upon the District Magistrate of the 24-Per gaunahs to show cause why the conviction of the petitioner under Section 323, Indian Penal Code, should not be set aside; or why such further order passed as to this Court may seem fit on the grounds that the Appellate Court had no jurisdiction to record a conviction under Section 323 and that it appears that the conviction under Section 147 was not legal and, in any case, that the sentence is too severe and should be commuted to one of fine.
2. The Magistrate, in furnishing us with an explanation, appears to have entirely misunderstood the law. It cannot be said that any minor offence is included in Section 147. The use of criminal force is a necessary ingredient in that offence; but any particular kind of voluntary use of such criminal force may, and should be separately charged, either substantively against the individuals who committed the offence, or for the purpose of using Section 149 against all the rioters, if a charge under Section 323 was necessarily included in Section 147, then charges of murder and of any offence which the rioters must have committed in prosecution of the common object must also be held to be included in it and there would be no need for Section 149 to all. Clearly, this view is entirely erroneous.
3. What really happened was this, five men were charged with rioting and two men were charged separately with causing hurt: these two persons were not tried apparently in the first Court upon that charge; it seems to have been a pure oversight. The first Court states in its judgment that this is a case under Section 147, Indian Penal Code, and there is not a word in the judgment from beginning to end about the charge under Section 323, It would have been within the competence of the Appellate Court, while setting aside the judgment of the lower Court, to have directed it to proceed with the trial of the two persons, the petitioners, on the charge under Section 323, and this is the order which we ourselves would now have passed if we had thought that it was at all necessary to carry these proceedings any further; but the conviction by the Appellate Court under Section 323 appears to be clearly without jurisdiction: and as the accused persons have already spent some ten days in jail, we are of opinion that no useful purpose will be served by having them tried again.
4. The result is that the convictions and sentences are set aside and the petitioners released from tail.
5. The rule is made absolute.