1. This Rule has been issued to show cause why the convictions of the Petitioners and the sentences passed on them should not be set aside on three of the grounds stated in the petition namely, grounds Nos. 8, 9 and 10. The Petitioners who are four in number were tried with three other persons-of whom two were acquitted and one was convicted and has since died-on a charge under Sections 420/120, B.-I. P.C., and the first Petitioner was also tried on a charge under Section 420, I.P.C., and the Petitioners were all convicted on those charges. The first of the grounds relates to the sufficiency of the charges. The Judicial Committee in the case of Subramaniya Ayyar v. King-Emperor (1901) 25 Mad. 61 observed that 'the necessity of a system of written accusation specifying a definite criminal offence is of the essence of criminal procedure.' An accused person is entitled to know with certainty and accuracy the exact value of the accusation brought against him. This cardinal principle runs through the provisions contained in Sections 221 to 223, Cr. P.C. In a case of cheating the charge must [set out the manner in which the offence was committed [Section 223 (iii)(b), Cr. P.C.] Whether the orders of the charge are reasonably sufficient to give the accused;notice of the accusation which be has got to meet depends upon the circumstances of each particular case. The omission to state the manner of the cheating is regarded as material or not accordingly as the accused has or has not in fact been misled by the omission and the omission has or has not occasioned a failure of justice: Section 225 (iii) (b) and (c), Cr. P.C.
2. In the charges framed in the present case the manner of the cheating was set out as follows:-'By deceiving with false representations and promises as well as by conduct.' The expression used is too vague and indefinite to give the accused proper notice of the manner of the deceit and is so dangerously wide as might include almost anything. The learned Advocate-General, towards the conclusion of his arguments, felt the force of this contention and with his usual candour conceded that upon the particular facts of the case, a conviction based on such charges cannot be supported. He, however, pressed us strongly to order a retrial.
3. In view of the fact that the convictions must be sot aside for the aforesaid reason, it is not necessary to discuss the other two grounds of the Rule which relate to the sufficiency of the findings. The findings, however, have got to be taken into consideration in order to decide whether a retrial should be ordered. I have examined those findings and have also perused the records with some degree of care. It appears that of the witnesses examined in the case no two witnesses agree as to what the misrepresentation was that acted on their minds and in consequence of which they made the payments. What has been found may be summed up thus: That it was represented that the petitioner No. 1 was the President of the Sanatan Hindu Samity and the Petitioner No. 2 was its Secretary, that they had been deputed to take up the cause of the Hodis and were prepared to honestly aid the communal consciousness of the Hodi Community and assist them to ameliorate their social status, that they would invest them with sacred thread on the footing of their being Kshatriyas, that such investitures would be performed by five Brahmins brought from different parts of India, and when so invested the Hodis would become 'touchables.' Money was realised, much in excess of what was originally agreed upon, for writing a book called 'Jatitatwa' Scribs of 'Bensa Parichay' were given containing the supposed 'Gotra.' 'Prabar' and 'Kaulik Upadhi' of the Hodis on receipt of fees. Notices were issued and manifestoes circulated with high sounding appellations attached to the signatories, and hyperbolic epithets were used extolling the virtue of the Petitioner No. 1 to which he could claim no pretensions and which had the effect of creating an impression in the minds of the Hodis that he was a great man capable of raising the Hodis higher in status and ready to do so out of purely philanthropic motives. The costs that were realised for the performance of the sacred thread ceremonies were much in excess of what were really necessary and the arrangements that were made were imperfect and ridiculously inadequate. In some cases receipts were given for amounts less than what were actually realised, the balance being pretended to be deducted for 'pronami' or other charges. The nett result of the findings is to hold that the promise that was made by the Petitioners was not altogether disinterested, that the Petitioners made a living out of the affair, that the Sanatan Hindu Samity had no recognised social status consisting as it did of the Petitioners Nos. 1 and 2 and some others who are mainly Hodis, that the main object of the Petitioners was to take advantage of the credulity of the Hodis and make them believe that it was possible to make them touchables and thus to enrich themselves, that if the Petitioner had succeeded in carrying out their object they would have amassed a considerable fortune, and that the Petitioners never intended to keep their promise or to keep it to the extent promised.
4. As against the above we have the fact that the idea of being made touchables on investiture of the sacred thread as Kshatriyas did not originate with the Petitioners. The Hodis themselves believe that they are entitled to be classed as such and for years past they have themselves been agitating for this reform and have petitioned the authorities for the purpose, and that the first step in this direction is to wear the sacred thread as Kshatriyas for which the Petitioners bad made arrangements though not necessarily on a scale which might have satisfied the Hodis. We have also the fact that the arrangements made by the Petitioners were interfered with: and the fact that there was opposition does not necessarily indicate that the Petitioners would not have carried out what they had promised.
5. The learned Sessions Judge felt the difficulty that underlies the case and he found it necessary to come to a finding on the question as to whether the Hodis can legitimately claim to be Kshatriyas. In my opinion, upon the facts of the case as presented on behalf of the Crown it is absolutely necessary to come to a finding in the negative on this question before the Petitioners can be held to be guilty. It is not within our purview to arrive at a finding on this question.
6. Leaving out of account the finding last mentioned, and accepting as correct the other findings arrived at by the learned Sessions Judge the case is one of swindling and perhaps swindling on a large scale. Swindling, however, does not necessarily amount to an offence of cheating within the meaning of the Indian Penal Code. For this reason, as also for the reasons that it [will not be right to allow the prosecution to shape its case afresh after the whole matter has been threshed out and the defects brought to light, in the course of proceedings extending over well nigh two years, I do not think it proper or necessary to order a retrial.
7. The Rule, in my opinion, should be made absolute and the convictions of and the sentences passed on the Petitioners set aside and they should be discharged from their bail. The fines, if paid, will be refunded.
8. I agree.