ORDER
Kumaraswami Sastri, J.
1. This petition was admitted by Mr. Justice Napier on the ground that he was unable to find any evidence set out against any of the accused.
2. The judgment though long is very un-satisfactory. Though 12 persons were charged with offences under Sections 147 and 504 of the Indian Penal Code, there has not been the slightest attempt made by the Magistrate to view the case of each separately or to discuss the evidence as against each of the accused. This was all the more necessary as the evidence against each of the accused is by no means equally strong. The whole judgment is a detailed criticism of the defence case and seems to proceed on the view that it was for the accused to establish their innocence.
3. Though the accused were charged with rioting, the common object is not set out in the charge and it is by no means clear from the evidence what the common object was. According to the complainant, the accused threatened him with injury in the evening. Accused Nos. 1 to 9 then went at about 10 P. M. to his house in order to take away the petition which he had written to the District Superintendent of Police. They could not have known that he was going to write the petition when they threatened him. The immediate cause of the assault in this case was his abuse of the accused and their assaulting each other.
4. There can be little doubt that in cases of rioting the common object should be clearly and specifically set out in the charge. 1 need only refer to Behari Mahton v. Queen-Empress 11 C. 106, Sabir v. Queen-Empress 22 C. 276 and Poresh Nath Sircar v. Emperor 33 C. 295 : C.L.J. 516 : 3 Cr. C.L.J. 153.
5. In the present case, the charge simply states that the accused were guilty of rioting. The accused complained during the trial that the charge did not state what the common object was and I cannot say that they were not prejudiced by the omission in the charge. The accused are not charged with having trespassed upon complainant’s property and taken away his complaint or with having assaulted his wife. If after all this took place, the complainant abused first accused as they were assaulting each other and the other accused with a view to rescue first accused intervened, it is difficult to see how they can be guilty of rioting The question of the common object is not “clear as crystal” as the Magistrate supposes.
6. I set aside the conviction and sentence. As regards accused Nos. 7 to 9, 11 and 12, I do not think it necessary to order a re-trial. The evidence is satisfactory and the Public Prosecutor does not press the case. Accused Nos. 1 to 6 will be re-tried before such other Magistrate as the District Magistrate might direct.