BALDEOSINGH Vs. EMPEROR

JUDGEMENT

(1.) THE seven applicants were convicted of offences punishable under Sections 148 and 325 read with Section 149,1. P.C., and each of them was sentenced to undergo imprisonment for six months in respect of each offence. The sentences were directed to run consecutively. In addition, each of the applicants was ordered to execute a bond for keeping the peace for one year under Section 106, Criminal P.C. Their appeal having been dismissed they have moved this Court in revision. An attempt was made to attack the conditions, but I see no reason to interfere with them in view of the ample and consistent evidence to sustain them. There is however a question of law argued in the case which calls for careful consideration. The question argued is whether separate sentences for offences under Section 148, I.P.C. and Section 325, I.P.C, read with Section 149, I.P.C, are according to law. On this point there has been some divergence of judicial opinion. In Queen-Empress v. Ram Partab (1883) 6 All 121 Straight, J., held that a member of an unlawful assembly some members of which have caused grievous hurt could not lawfully be punished for the offence of rioting as well as for the offence of causing grievous hurt. That case was dissented from in Queen-Empress v. Bisheshar (1887) 9 All 645 on the ground that Section 149, I.P.C, does not create a substantive offence but merely declares a principle of common law that an accused who comes within Section 149, I.P.C, cannot put forward as a defence that it was not his hand which inflicted the injury. Section 71, I.P.C, was therefore held not to come into operation.

(2.) THIS view did not find favour with the High Court of Calcutta, as will appear from. Nilmony Poddar v. Queen-Empress (1889) 16 Cal 442 (FB). The problem came there for consideration before a strong Bench of five Judges. Four Judges including Petheram, C.J. approved of the view taken in Queen-Empress v. Ram Partab (1883) 6 All 121. Tottenham, J., who dissented expressed his willingness to adopt the view if Section 149,1. P.C, defined and made punishable a specific offence which in his view it did not. The Bombay High Court in Queen-Empress v. Bana Punja (1893) 17 Bom 260 (FB) took the view that separate punishments were legal. It followed the view taken in Queen-Empress v. Bisheshar (1887) 9 All 645 In later cases there is a marked tendency to accept the view taken in Queen-Empress v. Ram Partab (1883) 6 All 121 which was followed in Nilmony Poddar v. Queen-Empress (1889) 16 Cal 442 (FB) as will be evident from. Kianuddi Karikar v. Emperor (1924) 11 AIR Cal 771. Bajo Singh v. Emperor (1929) 16 AIR Pat 268 and In re Pooniah Lopes (1934) 21 AIR Mad 388. The preponderance of judicial opinion is decidedly in favour of Straight J.'s view in Queen-Empress v. Ram Partab (1883) 6 All 121 viz., that separate sentences for the offences under Section 148, I.P.C, and Section 325 read with Section 149, I.P.C, are not sanctioned by law There appears to be but little doubt that the two offences can be tried together under Section 235, Criminal P.C, to be followed by separate convictions. The question that arises for consideration is whether separate convictions can be separately punished. The answer depends on whether Section 71, I.P.C, governs the case. In. Nilmony Poddar v. Queen-Empress (1889) 16 Cal 442 (FB) the majority of the Judges observed: The offence of voluntarily causing hurt under Section 324 coupled with Section 149, I. P.C. is primarily made up of two parts, viz., (1) the appellants in that case being members of an unlawful assembly by which force and violence was used in prosecution of its common object and the members of which were armed with deadly weapons; and (2) the offence of voluntarily causing hurt being committed by two other members of the unlawful Assembly in prosecution of its common object. The first of these two parts is itself an offence, viz. noting armed with deadly weapons under Section 148, I.P.C. It is nowhere expressly provided in law that under circumstances set forth above the offender may be punished separately for the two offences constituted by the whole and the part respectively. Therefore we find that all the conditions laid down in para. 1, Section 71, I.P.C. are present here. Consequently the infliction of separate punishments for the two offences is illegal under it.

(3.) WOULD there be any logical reason for not applying this rule if instead of an individual there is a body of persons acting collectively in prosecution of a common object ? If five persons or more are banded together so that each individual composing the unlawful assembly is animated by an identical object as specified in Section 141, I.P.C., their collection becomes an unlawful assembly. The unlawful assembly has a collective individuality. Consequently, when anything is done by any member of that assembly in prosecution of the common object it becomes an act not merely of that individual but of the whole assembly and that makes the other members equally liable to punishment as the active member of it for the obvious reason that they share the common object of the assembly. They stand in the position of abettors to say the least. The significance of Section 149, I.P.C., lies in the fact that the act done by one member of the assembly is treated as the act of the rest in so far as the act falls within the scope of the common object of the assembly.