Brodhurst, J.:— In this case Dungar Singh, Chunni Singh, and five other accused persons were tried by the Deputy Magistrate of Pilibhit for the offences of rioting and causing grievous hurt, punishable respectively under ss. 147 and 325 of the Indian Penal Code. Dungar, Chunni, and one Nathu Khan were convicted and sentenced to six months' rigorous imprisonment under s. 147, and were also convicted under s. 325, and were each sentenced to a further term of six months' rigorous imprisonment. [30] The remaining four persons were each sentenced to six months' rigorous imprisonment under s. 147.
The prisoners preferred appeals which were dismissed by the Sessions Judge, and Dungar and Chunni have each now presented an application to this Court for revision of the orders of the lower Courts. Four objections to these orders were taken; three of them are now abandoned by the applicants' learned counsel; and the fourth and remaining one is:— “Because, under a ruling of this Hon'ble Court, separate sentences under ss. 147 and 325, Penal Code, are illegal.” I have therefore to decide whether this plea is valid or not.
In the ruling referred to, Queen-Empress v. Ram Partab, Mr. Justice Straight, after coming to the conclusion that the appeal must be dismissed on the merits, continued:—“But it is incumbent upon me now to consider the further question of whether under the double convictions of the appellant, under ss. 147 and 325 of the Penal Code, the separate sentences of one year and two years' rigorous imprisonment respectively were legally passed. I concede at once that by the first clause of s. 235 of the Criminal Procedure Code, it was competent for the Judge to try him, in a single trial, for the offences of riot and causing grievous hurt;” and my learned colleague, towards the end of his judgment, observed:—“So in the present case the appellant was a member of an unlawful assembly; he participated in a riot, and, in the course of such riot, grievous hurt was caused by persons other than himself, for which he was responsible in law, as if his own hand had inflicted it, by reason of his being a member of an unlawful assembly of which they also were members. It was permissible to try and convict him for riot and for causing hurt or grievous hurt, as the case might be, in respect of each person assaulted, subject, of course, to the limitations of s. 234 of the Criminal Procedure Code as to the number of charges joined; but while he might be punished for the riot or upon each of the charges of grievous hurt separately, I do not think that different sentences can be passed for the riot and in respect of each of such other charges as well. In my opinion the riot is a part of those other [31] offences, the force or violence incident to their commission converting what would otherwise have been a mere unlawful assembly into a riot. In this view of the matter, I hold that the sentence passed upon the appellant under s. 147 should be quashed, and as I think the two years' rigorous imprisonment, imposed under s. 325 of the Penal Code, meets the requirements of justice, I consider it unnecessary to make any further orders.”
I will notice one or two other rulings of this Court under the same or similar sections of the Penal Code, and will then state my own opinion as to the law on the subject.
In the case of the Queen v. Hurgobind the prisoners, who had been convicted under ss. 148, 304 and 326 of the Penal Code, and had each been sentenced to rigorous imprisonment for three years under s. 148, to five years under s. 304, and to two years under s. 326, or in the aggregate to ten years' rigorous imprisonment, appealed against these convictions and sentences, and Turner, J. (now Chief Justice of the High Court at Madras), in disposing of the appeal, observed: “Then it is said, the appellants cannot be convicted of rioting, armed with, deadly weapons and of committing culpable homicide and grievous hurt. The facts established show that these appellants engaged in a riot, armed with deadly weapons; that in the prosecution of the common object of the assembly, one man was killed and several severely wounded. With every respect for the opinion of the learned Judges who decided the case of R. v. Rabi-ulla(2), I cannot assent to the ruling that, under such circumstances as exist in this case, the appellants cannot be convicted of the three several offences. A different view of the law has heretofore obtained in this Court. The sentence is collectively severe, but not so much out of proportion to the offence that I feel justified in interfering. The appeal is dismissed.”
The above-mentioned judgment was delivered when Act XXV of 1861 was the Code of Criminal Procedure in force, but a more recent ruling by Pearson, J., in Empress v. Ram Adhin(3) is to the same effect. In that case, eight persons, who had been separately charged with, convicted of, and punished for [32] offences under ss. 147 and 323 of the Penal Code, by the Magistrate, and whose sentences had, on appeal, been affirmed by the Sessions Judge, presented an application to this Court for revision of the order above-mentioned, and their learned counsel contended that they could not be punished both for the offence of rioting and for that of voluntarily causing hurt. Pearson, J., in the course of his judgment, remarked:—“It appears that in the case of Queen v. Hurgobind decided by this Court on 7th July 1871, Turner, J., held that persons found guilty of rioting may, if the circumstances warrant it, be convicted of the several offences of rioting, armed with deadly weapons, culpable, J. homicide, and grievous hurt. The learned Judge referred to the case of Babi-ulla mentioned above, and expressed his dissent from the ruling therein, and observed that a different view of the law had heretofore obtained in this Court. It further appears that the learned Judges of the Calcutta Court, who disposed of Babi-ulla's case, ruled in a different direction in the case disposed of by them in the following month of April. On the whole, the precedents which have been produced are opposed to the contention in this case. It is obvious to remark that rioting and unlawful assembly are offences against the public tranquillity, while assault, hurt, &c, are offences affecting the human body. Seeing no sufficient reason for interference, I reject this application.”
The then law on the subject was contained in para. 1, s. 454, Act X of 1872, and if any doubt could possibly be entertained as to the meaning of that paragraph, it would have been removed by referring to Illustration (f), which clearly shows that an accused person might be separately charged with, convicted of, and punished for offences under ss. 147, 323, and 152 of the Penal Code.
For many years past, the Sessions Judges and Magistrates of these Provinces have constantly decided such cases in accordance with the above and similar rulings, and a very large number of their judgments has undoubtedly been affirmed by this Court on appeal and in revision.
That accused persons could, during the ten years and more that Act X of 1872 was in force, be separately charged with, [33] convicted of, and punished for the offences under ss. 147 and 325 of which the applicants in the present case have been convicted and sentenced, appears to be indisputable, and all that remains now to be seen is whether any change on this point has been effected by Act VIII of 1882, or by Act X of 1882, which came into force on the 1st January 1883.
Section 235 of Act X of 1882 is the corresponding section to s. 454 of Act X of 1872. The wording of para. 1, s. 235 of the new Code, differs slightly from the wording of para. 1, s. 454 of the late Code, but the meaning of the two paragraphs is precisely the same, and Illustration (g) to para. 1, s. 235 of Act X of 1882, is almost word for word the same as Illustration (f), para. 1, s. 454 of Act X of 1872. Illustration (g) shows that a person may still be separately charged with, and convicted of, offences under ss. 147, 325, and 152 of the Indian Penal Code; but the word “punished” is not to be found in the new illustration as it was in Illustration (f) above referred to in the Code lately repealed. The word “punished” has apparently been omitted from all the illustrations in the new Code, and the reason of this is explained by Mr. Mayne on page 43 of the twelfth edition of his Commentaries on the Indian Penal Code, as follows:—
“This section (235 of Act X of 1882), combined with s. 71 of the Penal Code, seems to reproduce the provisions of the former Criminal Procedure Code (Act X of 1872), s. 454. The omission of all those references to punishment in the section itself and in the illustrations which were contained in the repealed s. 454, shows that it is to be treated merely as containing rules for criminal pleading and procedure, and that the rules as to assessment of punishment must be sought for in s. 71 of the Penal Code, as amended by Act VIII of 1882, and in the Criminal Procedure Code, s. 35, ante, pp. 34-42.”
Section 71 of the Penal Code did not affect para. 1, s. 454, Act X of 1872, and s. 71, as amended by s. 4, Act VIII of 1882, does not in any 1 way affect para. 1, s. 235 of Act X of 1882, so that an accused person can still, as before, be separately tried, convicted and punished for offences under ss. 147, 325, and 152 of the Indian Penal Code. Reading s. 71 of the Penal Code as amended [34] by s. 4 of Act VIII of 1882 with s. 235 of Act X of 1882, the law on the subject is the same as it was when Act X of 1872 was to force. Portions of paragraphs 2 and 3 of s. 454, Act X of 1872, contained matter of substantive law, and they were, therefore, when the Criminal Procedure Code was re-enacted, omitted from that Code, and were by s. 4, Act VIII of 1882, placed in the tonal Code.
By s. 35 of the Criminal Procedure Code it is enacted:
“When a person is convicted, at one trial, of two or more distinct offences, the Court may sentence him for such offences to the several punishments prescribed therefor which such Court is competent to inflict: such punishments, when consisting of imprisonment or transportation, to commence the one after the expiration of the other in such order as the Court may direct.
It shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court.
Provided as follows:—
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) if the case is tried by a Magistrate (other than a Magistrate acting under s. 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.”
The offence of rioting, and the offences of voluntarily causing hurt and voluntarily causing grievous hurt, each of the two latter offences being committed against a different person, are all distinct offences. The offence of voluntarily causing hurt or of voluntarily causing grievous hurt obviously can be committed without the commission of the offence of rioting, and, in like manner, rioting can be committed without the commission of the two other mentioned offences. If then a person is accused of having committed the offence of rioting armed with a deadly weapon, and also with having at the same time committed the offences of voluntarily causing hurt to one person, and of voluntarily causing grievous hurt, by means of a dangerous weapon, [35] to another person, he may, under the provisions of para. 1, s. 235 of the Criminal Procedure Code, be charged with and tried atone trial, for each of the three above-mentioned offences; and, in my opinion, he may, under the provisions of s. 35 of the Criminal Procedure Code, be sentenced to three years' rigorous imprisonment finder s. 148 of the Penal Code, to one year's rigorous imprisonment under s. 323, and to ten years' rigorous imprisonment under s. 326, or to an aggregate punishment of fourteen years' rigorous imprisonment. This appears to me to be not only in accordance with the law, but also with common sense.
A commits a most aggravated assault on B., causing bone fractures and other very serious injuries, and conducts himself generally in such a way as to render any punishment less than the maximum amount of seven years' rigorous imprisonment that can be awarded under s. 325 of the Penal Code, inadequate. In another case C, a zamindar, collects 1 two hundred men and arms them with lathis, spears, and tulwars in order to eject D., a neighbouring landholder, from a certain portion of his land, and to take in into his own possession. C. and his followers thus become members of an unlawful assembly; when the members of this unlawful assembly proceed to D.'s land, which he is having ploughed, and stop and unyoke the bullocks, they, having thus committed “force,” are guilty of the offence of rioting armed with deadly weapons. C, on being remonstrated with by D., for bringing the members of the unlawful assembly on to his land and stepping his ploughing, assaults D. and commits grievous but of a similar nature to that above described in the case of B.C would, equally with B., be deserving of the maximum term of imprisonment under s. 325 of the Penal Code, and C, having in addition to the serious offence affecting the human body that he is guilty of, committed another grave offence against the public tranquillity, and having caused alarm to women, children, and other peaceably disposed persons within a large tract of country, obviously ought not to go unpunished for the offence of which he is guilty under s. 148 of the Penal Code.
The Deputy Magistrate's decision is in accordance with the vast majority of the rulings of this Court for many years past. It is, moreover, in accordance with the judgments of the majority [36] of the Judges of this Court ever since Act X of 1882 came into force. It is also, in my opinion, in conformity with the law, and is otherwise unobjectionable. I therefore decline to interfere, and I reject the application.
Application rejected.