DADAN GAZI Vs. EMPEROR

JUDGEMENT

(1.) This was a rule calling upon the Magistrate of Dacca to show cause why the conviction and sentence of the accused 1 and 2 under Section 143 read with Section 114 of the Indian Penal Code and of the other accused under Section 143 should not be set aside, or why such other order should not be passed as to this Court may seem proper.

(2.) The facts found in the Lower Courts were that accused were members of an unlawful assembly with the common object of entering with force and causing mischief and using criminal force to the shopkeepers and thereby causing damage to the bazar of Babu Bhabaranjan Banerjee.

(3.) The accused 3, 4 and 5 were found to have gone up into the bazar and committed rioting armed with deadly weapons. The accused 1 and 2 were found to have stood below the bazar and encouraged and directed such rioting. The first question raised before us was whether a conviction under Section 148 read with Section 114 could lie against these persons. No doubt, if they formed members of the unlawful assembly, in which force was used in pursuance of the common object, they could be convicted of rioting and of abatement of any other offence, which might be committed by the mob under their orders or instigation in prosecution of the common object; but could they, having regard to the provisions of Section 148, which confine the offence therein rendered punishable, to persons, who riot being armed with a deadly weapon, be convicted by implication under Section 114 with being present when such an offence was committed and being liable to be punished as abettors, if absent? The question was not argued before us by learned Counsel for the accused after the rule came on for hearing, though it was made much of in obtaining the rule. We do not think that this somewhat difficult question really arises in this case, inasmuch as the two accused in question have been sentenced to pay a fine of Rs. 300 each only, a punishment, which it was competent to the Lower Court to inflict under Section 147.