Lancelot Sanderson, C.J.
1. This is a Rule calling upon the District Magistrate to show cause why the convictions of and sentences passed upon the petitioners should not be set aside on the first ground mentioned in the petition; and the first ground is, that 'the trial of the petitioners on charges framed in contravention of Section 233, Criminal Procedure Code, was without jurisdiction and void and the convictions bad and sentences and orders under Section 106 of the Criminal Procedure Code passed on such trial are illegal and fit to be quashed.'
2. The charges, (as they appear from the petition) against the petitioners, who are 14 in number, were, first, under Section 147 of the Indian Penal Code, secondly, under Section 149 read with Sections 325 and 323, and, thirdly, against some of the petitioners under Section 353 of the Indian Penal Code. The learned Vakil for the petitioners raised no objection to the charge under Section 147 of the Indian Penal Code and that is the section under which the petitioners have been sentenced. Some of the petitioners have been convicted in respect of the other charges, but no separate sentences have been passed in respect thereof.
3. The objection, which the learned Vakil for the petitioners, has raised on this rule, may be illustrated by way of reference to the charge under Section 149 of the Indian Penal Code. It was stated in the petition as follows:
That you on or about the 25th May or July 1921 at the same place were members of an unlawful assembly and in prosecution of the common object of that assembly, as stated in the first charge, several members of the said assembly caused grievous hurt to havildar Raghubir Raut and simple hurt to constable Prem Lal Ghose, constable Har Kishore Barua, constable Mohendra Chundra De, Yar Ali Matbar, Abdul Rashid and Oli Mia Doctor and you are thereby under Section 149 of the Indian Penal Code guilty of causing the said offences which are punishable under Sections 325 and 323 of the Penal Code.
4. The learned Vakil for the petitioners has argued that that charge is a bad charge for the reason that it contains more than one distinct offence and he has relied upon Section 233 of the Code of Criminal Procedure. That section provides, 'for every distinct offence of which any person is, accused, there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239.'
5. That charge, in my judgment, did relate to more than one distinct offence, and, consequently, it is a bad charge under the law. For that reason, in my judgment, the learned Vakil's argument to that extent is well founded. But when he went further and argued that because that particular charge was in contravention of Section 233, the whole trial was vitiated, I, with great respect to the learned Vakil's argument, was unable to agree with it. The distinct offences, which were included in that particular charge, were one series of acts so connected together as to form the same transaction and, consequently, the accused could have been charged with and tried at one trial for each such offence, see Section 235 of the Criminal Procedure Code, and the evidence relating thereto could have been presented to the Court by the prosecution if those distinct offices had been contained in separate charges. It seems to me to be of entirely different case to that which was decided by the Judicial Committee of the Privy Council in the case of Subrahmania Ayyar v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir. 271 : 8 Sar. P.C.J. 160 (P.C.), upon which the learned Vakil relied. That was a case where the accused was tried on an indictment, in which he was charged with no less than 41 acts, these acts extending over a period of years. This was clearly in contravention of Section 234 of the Criminal Procedure Code which provides that a person may only be tried for three offences of the same kind if committed within a period of 12 months. The Judicial Committee held that the whole trial was vitiated, and the reason for holding that the whole trial was vitiated was set out by the Lord Chancellor in his judgment. The Lord Chancellor referring to Section 234 observed: 'The reason of such a provision, which is analogous to our own provisions in respect of embezzlement, is obviously in order that the Jury may not be prejudiced by the multitude of charges and the inconvenience of hearing together of such a number of instances of culpability and the consequent embarrasment both to Judges and accused.' But, here, as I have already pointed out, the alleged offences were a series of acts arising out of one and the same transaction and there was nothing to prevent all these matters being put before the Court if they had been contained in separate charges instead of their being included in one charge. Consequent, there is a great difference between the present case and the case which was decided by the Judicial Committee. The same remarks apply to the charge under Section 353. It seems to me that the charge as framed did relate to distinct offences, because, there the allegation was that the accused referred to in that charge did assault the havildar and several constables who are named in the charge. Strictly speaking, there should have been separate charges in respect of these distinct offences. Consequently, in my judgment, we shall be on the safe side in setting aside the convictions under Section 149 read with Sections 325 and 323, and the convictions under Section 353 of the Indian Penal Code. But there is no reason, in my judgment, why the conviction under Section 147 of the Indian Penal Code should not stand.
6. Then, the only other point to which X need refer is the question of sentence. The learned Vakil has drawn our attention to the fact that the learned Magistrate, who tried the case, based his decision, as regards the sentences, to some extent at all events, upon the fact that some of the accused persons had been convicted of offences other than the offence under Section 147, and, consequently, the sentences ought to be re-considered. It seems to me that if there had been one charge only framed against the accused under Section 147, all the facts which were proved at the trial in relation to this matter would have been material. The learned Vakil agreed that the Magistrate, in imposing the sentences, would have been justified in taking into consideration the various parts which were played by the accused persons respectively. In my judgment, if he had done so, there is nothing to show that he would have come to any conclusion different from that at which he has arrived. For these reasons, in my judgment, there is no ground for interfering with the sentences, which, having regard to the nature of the case, are not unreasonable.
7. The result is that this Rule is made absolute to this extent, namely, that the convictions under Section 149 read with Sections 325 and 323 of the Indian Penal Code, and the convictions under Section 353 of the Indian Penal Code, are set aside. The convictions under Section 147 of the Indian Penal Code and the sentences imposed thereunder must stand.
8. I agree.