1. We are clearly of opinion that this Rule must be made absolute and a re-trial ordered upon the ground on which it was issued. When a Court draws up a charge under Section 325 read with Section 149, it clearly intimates to the accused persons that they did not cause grievous hurt to anybody themselves, but that they are guilty by implication of such offence, inasmuch as some body else, in prosecution of the common object of the riot in which they were engaged did cause such grievous hurt. Now, when these persons are acquitted of rioting, obviously, all the offences which they are said to have committed by implication disappear, and the defence cannot be called upon to answer to the specific act of causing grievous hurt merely because it may have appeared in the evidence; for the Court having already declared by its charge that they did not commit a specific act and not having given effect to the evidence for the prosecution by framing a fresh charge, the defence would not be justified in wasting the time ot the Court in defending themselves on a' charge which had never been brought against them. This will be perfectly clear if the offence disclosed by the evidence was the heinous one of murder and the Court framed no charge of murder, but went on with the charge of rioting. Obviously, in that case, the accused could not be called upon to defend themselves on the charge of murder, for it is only in the Sessions Court that the said charge can be tried. The Magistrate appeals to the provisions of Section 34, but Section 34 can only come into operation when there is a substantive charge of causing grievous hurt. The considerations which govern Section 34 are entirely different and in many respects the opposite of those which govern Section 149, and it is now settled law that when a person is charged by implication under Section 149 he cannot be convicted of the substantive offence.
2. The present conviction, therefore, is bad and must be set aside and the accused must be re-tried on the substantive charge under Section 325. They will remain on the same bail pending their retrial.