MAHANTH DUKHAN DAS Vs. EMPEROR

JUDGEMENT

(1.) The appellants in these three appeals were tried together by a Special Magistrate in Saran District for offences committed on 19 August 1942 at Parsa police-station, Saran District. The prosecution case was that on that day about 2 P.M. a mob of about a thousand persons armed with various weapons came to the police-station and some of them broke the tiles of the roof and some doors and windows of the police-station building while others brought out furniture and records and burnt them. Members of the mob were also alleged to have broken open the cash-box and carried away its contents, Rs. 9 odd. There are 12 appellants before us, who have all been convicted under Section 143, Indian Penal Code, though no sentence has been passed under that section. They have also all been convicted under Rule 35(4), Defence of India Rules, read, in the case of five appellants --Raktu Sah, Ramgobind, Ramsingar, Maninath and Kripanand. Gir, with Section 149, Indian Penal Code, and they have been sentenced to terms of imprisonment ranging from six years in the case of Murlidhar Pande (the appellant in Appeal No. 498), to two years in the case of Raktu Sah, Ramsingar Sah, Maninath Thakur and Ramgobind Sah. They have also been sentenced to fines with varying terms of imprisonment in default of fine.

(2.) The nature of the occurrence has not been challenged before us; and the contentions on behalf of the appellants fall under two categories: first, arguments as to the validity of the trial, and secondly, arguments as to whether the complicity of individual appellants has been established. A third point of law was raised, though on this point there has been practically no argument. This point is that the conviction under Rule 35(4), Defence of India Rules, read with Section 149, Indian Penal Code, is illegal.

(3.) I will deal with the third point first. There is a decision in Vasudeva Mudaliar v. Emperor A.I.R. 1929 Mad. 880 in which it was pointed out that the word offence in Section 149, Indian Penal Code, is confined to offences under the Code, and does not include within its meaning offences under special Act, such as the Rail, ways Act, which, was in question before the Madras High Court. This will apply in the present case to an offence under the Defence of India Rules. This point would really be sufficient to dispose of the appeal of those five appellants who have been convicted under Rule 35(4), Defence of India Rules, read with Section 149, Penal Code. But I should mention that it was suggested on behalf of the Crown that the wording of the charge specifies that these appellants were guilty of specific offences without reference to Section 149, Indian Penal Code, though a reference to that section was actually made at the end of the charge.