Sarat Chandra Ghosh And Others v. Emperor Opposite Party.

1. This Rule was granted only on the ground that the separate sentences passed on the petitioners were illegal. They were convicted of offences punishable under sections 147 and 225, Indian Penal Code, and sentenced to three months' rigorous imprisonment on each count, the sentences to run consecutively. In the charge of rioting, punishable under section 147, Indian Penal Code, the common object of the unlawful assembly is set out “to resist the execution of law by forcibly rescuing a prisoner (accused). Lalu Kabiraj, from the lawful custody of two constables Harun Rashid and Srimanta Bera.” In the second charge, of an offence punishable under section 225, Indian Penal Code, the words used to describe the offence are “intentionally rescued or attempted to rescue a prisoner, Lalu Kabiraj, from the lawful custody cf constables Harun Rashid and Srimanta Bera.” It might be argued that rioters being members of an unlawful assembly with the common object of committing an offence and the actual commission of that offence are separate and distinct offences. But even accepting this contention we must hold, having regard to the provisions of section 71 of the Indian Pentl Code and section 35 of the Code of Criminal procedure, that a person convicted of such offences would not be liable to separate punishment for each offence. This follows from the illustration to section 35, Criminal Procedure Code. When the offences of committing housebreaking with intent to commit theft and the actual commission of theft are declared by law not to be distinct offeces with in the meaning of section 35, Cuminal Pn.ce-dure Code, it follows that the two ofie???ces of which the petitioners have been cc n-victed are not disti of offences for which separate sentences case bt passed. This view is supported by the authority of the decisions in the cases, Bhup Shigh v. Emperor (1) and Alim Sheikh v. Shahzada, Singh Bwrkunidaz (2).

2. We accordingly mabe this Rule absolute and direct that the sentences of three months rigorous imprisonment passed on the petitioners under sections I-17 and 225, Indian Penal Code, will run concurrently and not consecutively.

3. Rule made bsohite.