1. We are of opinion that this Rule must be made absolute on the ground on which it was issued.
2. The petitioners were charged with rioting under Section 147 with the common object of ~ causing hurt to the complainant and with other objects with which we are not concerned. They have been convicted of causing hurt to another person, and the learned Magistrate in his explanation maintains that on the finding that the injuries caused to the complainant were covered by the right of private defence of property, but that the injuries caused to Sarup were not so covered, the Magistrate was justified in convicting the accused under Section 323 and sentencing them to undergo six months' rigorous imprisonment each. He says that the omission to frame a charge is immaterial, because there was no prejudice, inasmuch as evidence was produced on both sides as to the responsibility for the injuries caused to Sarup, and had a charge under Section 323 been framed, the matter could not have been more fully investigated and it cannot be said that the accused have been in any way prejudiced in their defence or misled as to the nature of the charge against them. Had such a charge been framed or were the case now remanded for re-trial, it would have to be decided on precisely the same evidence as has already been recorded.
3. Now, admitting all that the Magistrate puts forward, it is clear that under the law this conviction is not merely irregular but illegal. Section 233 is mandatory ; for every distinct offence of which any person is accused, there shall be a separate charge and every charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. Now, we presume that the Magistrate relies upon Section 535 as covering this case. That section says that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. Now 'merely on the ground that no charge was framed' must, in our opinion, mean a case where the offence being a petty one and the evidence, being fairly taken, the Court framed no charge at all. But where the Court has framed a charge, then it cannot be said that the conviction is invalid merely on the ground that no charge was framed. We cannot deal with this case under that section. A charge was framed and that charge has distinctly included the causing of hurt to the complainant, and the accused has been convicted of a totally different matter which was not charged at all. Then, it cannot either come under Section 537(a) 'any error or omission or irregularity in the charge.' It is clear that the accused could raise no objection as he could have had no idea that he is going to be tried upon this particular charge, there being a specific charge against him. It is not an omission in the charge which has been framed; it is the total omission to frame a charge upon the offence for which he has been convicted. Then, Section 232 does not help him; that is, 'If any Appellate Court, or the High Court, in the exercise of its powers of revision, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.'
4. Now, it is impossible for us to say that the accused have not been prejudiced. Supposing in the course of a trial for rioting, as we have before pointed out, the evidence shows that murder has been committed, can it be said that the accused can be convicted of murder by the Magistrate on the charge of rioting, or that he can be committed to the Sessions without any charge being framed? The matter is not an irregularity but an error of law which vitiates the trial.
5. Then we come to Section 237 which is a case, where in the case mentioned in Section 236, the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section. But this does not apply, because Section 236 only refers to a series of acts which are of such a nature that it is doubtful which of the several offenses the facts constitute. Now here there was no doubt whatever about what was charged, nor on the evidence, as the Magistrate says, about hurt being caused to Sarup. That was not the question whether the man should be convicted of causing hurt to Sarup. The conviction of rioting and causing hurt to another man are questions totally different and independent, and the trial should also have been on a distinct and separate charge. We see that the Magistrate has fallen into another error by not framing a charge, for the medical report shows that Sarup had both bones of his leg fractured, which is, of course, a case of grievous hurt.
6. The conviction and sentence must be set aside and a re-trial ordered on a charge properly framed under Section 325 or 323, Indian Penal Code. The petitioners meanwhile will remain on the same bail.