1. The four appellants before us were tried before the Sessions Judge of Faridpur and a Jury on various charges of offences committed in the course of a riot in which they were accused of having taken part. The first two appellants were sentenced to seven years' rigorous imprisonment each under Section 304/149, Indian Penal Code and two years' rigorous imprisonment each under Section 324, Indian Penal Code, the sentences to run concurrently. The third appellant was sentenced to five years', rigorous imprisonment under Section 304/149, and no separate sentence was passed on his conviction under Section 147, Indian Penal Code. The fourth appellant was sentenced to two years' rigorous imprisonment under Section 147, Indian Penal Code.
2. As regards the appellant Basir Sardar a special point is taken, and that is that his conviction should be set aside on the ground of illegality in the proceedings before the Committing Magistrate. Five persons were committed to the Court of Sessions in this case one of whom has been acquitted. The commitment proceedings commenced against four of these accused other than Basir Sardar, and on the 25th June 1924 ten prosecution witnesses were examined. The Magistrate then directed that warrant should issue against Basir Sardar and he was produced before the Court on the 8th July. On that date three prosecution witnesses were examined in the presence of all the accused. On the 23rd July two more prosecution witnesses were examined in the presence of all the accused and the charge was framed. On the 28th July the investigating Police Officer and the Sub-Deputy Magistrate who recorded the dying declaration were examined apparently under Section 219, Cr. P.C. It is contended that this procedure was contrary to the provisions of Section 208, Cr. P.C. In our opinion even if the provisions of that section were not strictly followed that would not be a sufficient ground for setting aside this conviction. No reported cases have been shown to us in which the conviction has been set aside on the ground of irregularity or illegality in the commitment. It is not shown that the appellant Basir has been in any way prejudiced. Even assuming that there has been such an irregularity or illegality in the proceeding as would justify us in quashing the commitment had such an application been made to us before the commencement of the trial we hold that we should not, therefore, be bound to hold that the conviction should be set aside. The Sessions Judge has jurisdiction to try a case which has been committed for trial to him, and if the trial is legally held we doubt if an irregularity in the commitment would vitiate the proceeding in the Sessions Court. In the case of In the matter of Empress and Sagambur 12 C.L.R. 120 it was held that when a person had been put on his trial and pleaded to the charge the commitment cannot be quashed and we agree with that decision that it is too late to object to the commitment after the accused has pleaded to the charge before the Sessions Court. Taking this view it is not necessary to decide whether there was an illegality in the commitment but we may state that we have some doubts on this point. Section 208, Cr. P.C., provides that the Magistrate shall when the accused is brought before him proceed to hear the complainant if any and take all such evidence as may be produced in support of the prosecution. It does not appear that in this case the Magistrate omitted to take any evidence which was produced in support of the prosecution of the accused Basir. The same objection was taken before the Sessions Judge and he overruled it on the ground that one or two prosecution witnesses who were examined in the presence of Basir named him in the committing Court as 'being present in the dock and taking part in the riot.'
3. It is urged that the Magistrate was in any case under this section bound to hear the complainant in the presence of the accused. But it is not clear that the word complainant in this section applies to the person who laid the first information. Section 250(3) of the Code draws a distinction between an informant and a complainant. In Section 170 the words there used in the second clause 'the complainant if any' indicate that the informant in a case which has been investigated by the Police is not necessarily the complainant. Section 444 of the Code gives the definition of a complainant which would include the informant under Section 154 but that definition is a special definition limited to the use of that word in the preceding Section 443.
4. But though we hold that there was nothing in the method in which the commitment proceedings were held against this accused which would vitiate the trial we must not he held to approve of this procedure. We may point out that by following this- procedure it might happen that the prosecution would be seriously embarrassed at the Sessions trial, since if they wished to take advantage of Section 288 and put in any deposition under that section for use at the Sessions trial, this could not be done as against the accused in whose presence the depositions were not recorded. Other difficulties also might arise.
5. The next point urged on behalf of all the appellants is that there was serious non-direction amounting to misdirection on account of failure of the learned Sessions Judge to draw the attention of the Jury to an important passage in the dying declaration made by the man Abdul Karim who has been found to have been killed in the riot. In this statement Karim after giving an account of the occurrence and the wounds inflicted on him stated, 'no one else but any one else.' It is said that this is totally contradictory to the case for the prosecution and, therefore, the special attention of the Jury should have been drawn to this point. It seems to us that the point is not one of real importance. There is a mass of evidence on the side of the prosecution contradicting the statement. It is obvious that Karim could not know what happened after he was struck and became unconscious. Further it was not even the case for the defence that Karim was the only man assaulted, for we find that Karim Molla, the first appellant, when examined in the Sessions Court said, 'I too assaulted them,' there by admitting that others than Karim were also assaulted.
6. It is objected that the, charge did not sufficiently deal with the evidence against each accused individually. But we find that there is a paragraph in the heads of charge dealing with this point pointing out that the evidence against all the five accused as regards their presence at the time of the occurrence has not been exactly the same. That the Jury appreciated the necessity of weighing the evidence against the accused individually is clear from the fact that they acquitted one of the accused who was on trial before them with the appellants.
7. The last point urged is that the Jury were not told that the presence of the accused persons [at the occurrence was not sufficient for a conviction under Section 147, Indian Penal Code, the only charge on which the four appellants have been convicted. But the learned Sessions Judge told the Jury that one of the points they had to find to support a conviction on a charge of rioting was that the members of the unlawful assembly must have a common object. It does not appear either in the defence set out in the statements of the accused or as disclosed by the cross examination of the prosecution witnesses that it was ever suggested that any of the appellants were present at the riot without being members of the unlawful assembly or without having the common object of that assembly. We, therefore, hold that there was no misdirection on this point.
8. The appeal fails and is dismissed. The appellants must surrender to their bail and undergo the unexpired portion of their sentences.