1. The first of the questions referred to the Full Bench is, whether the sentences passed by the Magistrate were legal or illegal? The learned Sessions Judge has held them to have been illegal, as being inconsistent "with the provisions of section 71, paras, 2 and 4."

2. But the provisions of Section 71 of the Indian Penal Code do not fit the facts found by the Magistrate. Illustration (b) to that section runs thus:

"But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y."

3. And this is precisely the state of the facts found by the Magistrate, in this case. It has also been suggested that as, when the trial commenced, the Magistrate, Mr. Saunders, had the powers of a second class Magistrate only, he had not the power to pass sentences of one year's imprisonment. I do not think that this fact makes the sentences passed by him illegal. Mr. Saunders was at the beginning of the trial only a Magistrate of the second class. Such a Magistrate is empowered by law to try charges under Sections 323 and 325 of the Indian Penal Code, but he cannot pass a sentence of imprisonment for a term exceeding six months. When, however, Mr. Saunders convicted the accused persons, be had the powers of a Magistrate of the first class. Section 39 of the Criminal Procedure Code provides that an order conferring powers under the Code shall take effect from the date on which it is communicated to the person so empowered. The District Magistrate has reported that the powers of a Magistrate of the first class, which were conferred on Mr. Saunders by orders of Government dated the 6th September 1884, were communicated to Mr. Saunders on the 8th idem. The sentences were inflicted on the 10th September 1884, and were within the competence of a Magistrate of the first class.

4. The question as to cumulative sentences has been disposed of by the ruling of the Full Bench of this Court in Daulatia's Case I.L.R. 3 All. 305.

5. My answer to the first question put to us is, that the sentences were legal. And this being so, it is unnecessary for me to answer any of the other questions put to the Full Bench.

Mahmood, J.

6. I have arrived at the same conclusion. My reasons are concerned with Sections 39 and 349 of the Criminal Procedure Code. I understand the first question referred to us to be limited to the point whether a Magistrate of the second class, who begins a trial in that capacity, and continues it in the same capacity up to the passing of sentence, and who, previously to passing of sentence, has been empowered as a Magistrate of the first class, can inflict a severer sentence than he could have inflicted as a Magistrate of the second class. My opinion on this point is, that he can. It seems to me that, in dealing with the point, the distinction between the competency of a Magistrate as regards his powers to try and his powers to pass sentences must be borne in mind. Section 39 of the Criminal Procedure Code says that every order conferring powers under the Code shall take effect from the date the order is communicated to the person so empowered. The order conferring on Mr. Saunders the powers of a Magistrate of the first class reached him on the 8th September. The sentence which he passed was within those powers. There is no doubt that he was competent to try the case. All that remained for him to do in the case when he was empowered as a Magistrate of the first class, was to pass sentence. section 349 of the code says that in a case of this kind, whenever a Magistrate of the second class, having jurisdiction, is of opinion that he cannot pass a sufficiently severe sentence, he may submit his proceedings to the District Magistrate. The analogy offered by this section shows the distinction between competency to try a case and competency to pass sentence. Supposing Mr. Saunders had not been invested with the powers of a Magistrate of the first class, he could have submitted the case under Section 349. But having those powers, it seems to me that, if he had not exercised them and had submitted the case under that section, he would have acted erroneously. The District Magistrate might have properly said to him,

"you are a Magistrate of the first class, this section is intended for Magistrates of the second class."

7. Under this view of the case and of the distinction between competency to try a case and competency to pass sentence, I hold that Mr. Saunders was competent to pass the sentences he did. My answer to the first question is, therefore, in the affirmative, and that being so, I need not answer the remaining questions, which do not seem to me to be necessitated by the exigencies of the case.

Brodhurst, J.

8. The Assistant Magistrate, Mr. Saunders, at the time that he heard the evidence for the prosecution in this case, on the 8th and 13th August 1884, was a Magistrate of the second class. He became a Magistrate of the first class on the 8th September 1884; on the 9th idem he framed the charges, recorded the statements of the accused and the evidence for the defence, and, on the following day, the 10th September, he decided the case, and convicted and sentenced the accused under Sections 323 and 325 of the Indian Penal Code.

9. With reference to the evidence on the record the accused should, I consider, have been tried for the offences punishable under Sections 148, 323 and 325 of the Indian Penal Code; and the Assistant Magistrate, when drawing up the charges on the 9th September, should, I think, with reference to the provisions of Section 254 of the Criminal Procedure Code, have done so under each of the three last mentioned sections of the Penal Code. He should then, under Section 255 of the Criminal Procedure Code, have read and explained the charges to the accused, and should have asked them whether they were guilty or had any defence to make. If they did not plead guilty, but claimed to be tried, he should, under Section 256, have called upon each of them to enter upon his defence, and to produce his evidence, and he should at any time whilst they were making their defences have allowed them

"to recall and cross-examine any witness for the prosecution present in the Court or its precincts."

10. As it is, the convictions generally, under Sections 323 and 325 of the Penal Code, are, in the absence of charges under sections 148 and 149 of the code, unsupported by the evidence, and cannot be sustained with reference to the provisions of Sections 109 and 114 of the Penal Code; and as very serious offences have been committed, the accused should, I think, be re-tried under Sections 148 and 149, and Sections 323 and 325 of the Indian Penal Code.

11. My answer to the four questions referred are as follows:

1. The sentences passed by the Magistrate are, as a whole, illegal.

2. If Mr. Saunders had convicted the accused persons under Section 148 of the Indian Penal Code, his order would, under the circumstances above stated, have been legal.

3. A Court of appeal is not competent to alter the finding of a Magistrate, so as to convict an accused person oil an offence which the Court of which the order is in appeal was not competent to try.

4. For reasons which I have stated at length in my judgment in Empress v. Dungar Singh Ante p. 29 a member of an unlawful assembly, some members of which have caused grievous hurt, can, in my opinion, be legally punished for the offence of rioting as well as for the offence of causing grievous hurt.

Oldfield, J.

12. The accused Pershad, Karan, and Dharam Pal, were sent up by the Police to the Court of Mr. Saunders, a Magistrate of the second class, for trial on charges of rioting (Section 147) and voluntarily causing grievous hurt (Section 325).

13. Mr. Saunders commenced the trial, as a Magistrate of the second class, on the 13th August. He was appointed by Government to be a Magistrate of the first class by order dated the 6th September 1884, which was communicated to him on the 8th of that month, and subsequently he framed charges against the accused--(1) of voluntarily causing grievous hurt (Section 325) to Kundan; (2) a like charge in respect of one Chittar; and he further charged the accused with voluntarily causing hurt (Section 323) to--(1) Hulas, (2) to Kesri, (3) to Dharamjit, and (4) to Akbar; and, after taking their defence, he convicted them on all the charges, and on the first charge sentenced each to two years' rigorous imprisonment, and a fine of Rs. 20, or two months' rigorous imprisonment; on the second charge to one year's rigorous imprisonment, and a fine of Rs. 10, or one month; and on the further charges, to three months' rigorous imprisonment, and a fine of Rs. 5, or fifteen days' rigorous imprisonment in respect of each offence charged; making the total sentence amount to four years' rigorous imprisonment, and a fine of Rs. 50, or five months' rigorous imprisonment.

14. He further directed them to execute a bond for keeping the peace, with sureties, under Section 106 of the Criminal Procedure Code.

15. We are asked whether the sentences passed are legal or illegal. In my opinion they are legal.

16. Mr. Saunders had jurisdiction to try the accused as a Magistrate of the second class, but the sentences of imprisonment which he could pass as a Magistrate of the second class were limited to imprisonment for a term of six months, and he had no power to take security for keeping the peace under Section 106.

17. He could not, therefore, as a second class Magistrate, pass the sentences or make the order which he did; but on the 6th September, the Government appointed him to be a first class Magistrate, under the authority given by Section 13, Criminal Procedure Code; and the order was communicated to him on the 8th September, and in my opinion his appointment took effect from that date, and he was in a position to deal with the case as a Magistrate of the first class, and to exercise the powers which the law confers on a Magistrate of the first class, and to pass the sentences which he passed and to make an order under Section 106, all which were within his competency as a Magistrate of the first class.

18. I do not think that his power to deal with the case as a Magistrate of the first class is at all affected by the fact that the case came before him in the first instance in his capacity as a Magistrate of the second class.

19. There is here no question of jurisdiction to try the case, as Mr. Saunders could try the charges either as a Magistrate of the second or first class. The only question is one as to the sentence or order which could be passed upon convictions, the power of a second class Magistrate being more limited; but when his powers were extended by his appointment to be those of a Magistrate of the first class, he was in a position to exercise them at once; for the order of Government took effect under Section 39 of the Code from the date on which it was communicated to him.

20. If it were otherwise, it is difficult to see how he was to deal with the case, when he considered the punishment which a Magistrate of the second class could inflict was not sufficient.

21. Section 349 provides that in such a case a second or third class Magistrate shall submit the case to the Magistrate of the District, or Sub-Divisional Magistrate to whom he is subordinate, for sentence; but it is only a second or third class Magistrate who can make such a reference; and he had ceased to be a Magistrate of the second class at the time when such a reference could be made under that section. He would have been in the singular position of a de facto Magistrate of the first class taking proceedings as a Magistrate of the second class, which, as a fact, he was not, and referring the case to another Magistrate, to pass a sentence, which, as a first class Magistrate, it was in his power to pass. I cannot think the Code contemplates such a state of things.

22. Nor do I consider that the separate convictions are illegal. The Judge is wrong in holding that Section 71 of the Penal Code has any application. There is here no case of an offence made up of parts, any of which parts is itself an offence. The offence of voluntarily causing grievous hurt and hurt form no part of the offence of rioting, which is a separate offence; and in the same way each assault forms a separate offence, and could be dealt with separately. The Illustrations to Section 235, Criminal Procedure Code, especially Illustration (g), sufficiently show this to be so.

23. I would answer the first question by saying that the Magistrate's sentences are legal, and in this view the grounds on which the Judge interfered with the convictions and sentences, and on which he made a reference to this Court, cannot be supported, and it is unnecessary to consider the other, questions put to us.

23. It will be for the Divisional Bench to dispose of the reference from the Judge, and make such orders as the case requires.

Petheram, C.J.

24. I am of opinion that the sentences are illegal. The prisoners were charged before Mr. Saunders, Magistrate of the second class. He had power to try them, but he had not power as a Magistrate of the second class, to inflict the sentences which he did. For all purposes of the trial, Mr. Saunders' status could not be altered. As I understand the law, a case is supposed to be tried on the day the trial commences, and after that day the case proceeds by adjournment. The only date to be looked at as the date of trial is the date of the first day of trial. Therefore, for all intents and purposes, the Mr. Saunders who finished the trial is the same Mr. Saunders who began it. The case is the same case, the day, the same day, the trial, the same trial, all through. If the books are examined, it will be found that this point has been repeatedly decided. My answer therefore to the first question is in the affirmative.

25. As to the other questions, with the exception of the third, they do not arise. As to the power of altering the charge, I am of opinion that the Judge had no power to alter the charge, or frame a new charge, in any way.