1. The petitioners have been convicted under Section 147 of the Indian Penal Code, and sentenced to fifteen days' rigorous imprisonment each. In addition, two of them, Nur Ahmed and Amin-ulla, have been convicted under Section 323, Indian Penal Code, and sentenced to fifteen days' rigorous imprisonment and Faizulla under Section 324, Indian Penal Code, and sentenced to one month's rigorous imprisonment. The Rule was issued on three grounds. The first relates to the conviction under Section 147, Indian Penal Code. The learned Magistrate drew up a charge in which the common object of the unlawful assembly was stated to be to assault Akiruddin and Mokhleswar Rahaman. In his judgment he finds that three of the accused persons did assault Akiruddin and Mokhleswar Rahman. As to the other three, that is, Munirullah, Mohabat Ali and Kasim Ali, he says 'there is no positive evidence on the record that they took any serious part in the mar pit or caused injury to any person, although I am perfectly satisfied that they went with the other three accused to snatch away the cattle of the complainant in common object with that of the other accused persons.' Clearly, there is a difference between the common object mentioned and the common object b finds in the case of these three persons. If the common object of Faizullah, Nur Ahmed and Amirmllah was to beat Akiruddin, then there were not five persons that shared in the common object and the ingredient of an offence under Section 147, Indian Penal Code, is wanting. It is a great pity that so many Magistrates when dealing with charges under Section 147, Indian Penal Code, are careless in setting out the common object and in directing their attention to whether that particular common object is proved or not. On this, ground, the conviction under Section 147, Indian Penal Code, against all the petitioners must fail.
2. The learned Magistrate concedes that the additional sentences passed under Sections 323 and 324, Indian Penal Code, on three of the petitioners cannot stand with the sentence under Section 147, Indian Penal Code. With the conviction and sentence under Section 147, Indian Penal Code, removed, it becomes a question whether on the third ground the conviction of hurt should be allowed to stand. I find that the complainant put in a petition on the 5th of August last saying that he did' not wish to go on with the case. So far as the charge against Nur Ahmed and Aminullah is concerned, he had an absolute right to compromise the case on the charge of simple hurt. In the case of Faizullah, that complainant had no such absolute right his power to compound was subject to the Magistrate's approval. But, in this cage, the learned Magistrate did not say anything about whether he approved or not. He simply says that he heard the Court Inspector. It is a great pity when parties^ who are apparently nearly related to one another succeed in patching up their quarrels, that the Magistrate should not do what he can to restore peace and good will. I think the petitioners Nur Ahmed and Aminullah should be acquitted of the charge under Section 323, Indian Penal Code, on the ground that the complainant did not wish to proceed any further against them; and, so far as Faizullah is concerned, taking into consideration that he has already undergone some days' rigorous imprisonment and the complainant did not wish to proceed against him either, I think in his case, too, the conviction and sentence under Section 324, Indian Penal Code, should be set aside. The result is, that the Rule is made absolute and the convictions and sentences passed on the petitioners are set aside.
3. I agree.