JUDGMENT
B.K. Mullick, J.
1. The appellants Ramsunder Isser and Jagdambi laser are Brahmins and the complainant Ramdhani goala is their tenant. The other appellants Amrit Gope, Ali Hussain and Gopal Dusadh are the peons of Ramsunder and Jagdambi. The Maliks live in Mouza Kanaila within the jurisdiction of Dalsingsarai thana in the Darbhanga District. Between Kanaila and Ramdhani’s village Jawahirpur runs a District Board road North and South. Ramdhani and his brother Ramsarup live together. His other brothers Ram Kishun and Ramdhari occupy separate houses in Jawahirpur. Ramdhani had a hut consisting of two compartments with a thatch roof and walls of mud; in the northern compartment slept Ramdhani and in the southern Ramsarup with their respective Wives’ and children. In the northern compartment there were four kothis or receptacles for storing grain. In the southern compartment there were three such “kothis.” At the time of the occurrence some cooking used to be done in both compartments. In another hut close by lived Ramdhani’s old mother Pabitri and in a shed near a’ pakar tree to the north east Ramdhani used to keep his buffaloes and cows. Ramdhani does not appear to have been a rich cultivator and had to take service and it appears that so late as the 25th March, 1925 he was being employed by Durga Prasad, the brother and co-sharer of the accused Ramsunder and Jagdambi as a “molajim” and in that capacity swore an affidavit in the Court of the Munsif of Samastipur in proof of service of certain processes. He was a man evidently of better position than the ordinary cultivator and certainly of-greater intelligence and this fact will have to be borne in mind in considering the prosecution evidence in the present; case.
2. It is said that oh the 11th April 1925 Ramsunder and Jagdambi, Who are hot oh good terms with Durga Prasad, sent the three peons Amrit, Ali Hussain and Gopal Dusadh to the house of Ramdhani, and demanded that he should come and do “began” (work Without wages) and help to dig out and uproot certain crops. Ramdhani objected and there is no evidence that either he or his brothers or any of the goala witnesses in this case had ever done begari work for the landlord. The peons thereupon satin front of Ramdhani’s house the whole day from about sun rise till sum set. At the close of the day Ramdhani’s mother Pabitri wanted to go out and, fetch. some water for the children. Thereupon the accused Amrit Gope is said to have broken her pitcher and abused her. Ramdhani attacked Amrit with Amrit’s own stick and gave him one or two strokes. The peon Gopal then went off to Kanaila and informed his masters and thereupon Ramsunder and Jagdambi came with a band of 20 or 25 men from Kamaila which is about a mile from Jawahirpur in order to punish Ramdhani who had by then hidden himself inside his hut. As Ramdhani would not come out Jagdambi and Ramsunder ordered their men to burn down the house. The accused Amrit then pulled out a match box from his pocket and set fire to the roof of the northern compartment. It is alleged that though Ramdhani and his three other brothers were then in the hut they did not try to stop Amrit and the roof was completely destroyed. The month being April, when the hot winds blew the thatch did not take long to burn and the landlords then began running to the south. The three peons, however, ran towards the north and were caught by Ramdhani, with the help of his brothers and villagers. The fire was then put out; but in some miraculous fashion no injury was done except to the roof. It is said that the landlord’s people damaged one maund of jao and five seers of linseed of the total value of Rs. 3, but upon the evidence it is very difficult to see at what stage of the riot this occurred. Ramdhani’s explanation is that all his utensils had been removed either before the landlord arrived or while the house was burning.
3. The scene now shifts to the Dalsingsarai thana which is about four miles from Kanaila. It is established by the evidence that between 4 and 5 p. m. on that day Ramballabh Sahay, the Tahsildar of Jagdambi, arrived at the Police Station and lodged an information to the effect that he had at about 1 p. m. that day seized some buffaloes belonging to Ramdhani which were destroying some grass fields to the west of Ramdhani’s house in Mouza Jawahirpur. He explained that he was himself coming with Amrit and Gopal from the Village Mahesari close by where he had been to collect rent on behalf of his master. Pa stated that upon the peon’s seizing the buffaloes and proceeding to take them to Kanaila Ramdhani and his neighbours turned, out in force and rescued the cattle and carried off Amrit and Gopal as prisoners. The writer Head Constable of Dal-singsarai arrived at Jawahirpur to investigate this charge at about 8 p. m. He found Ramdhani absent and no trace of Amrit and Gopal; but Ramkishun, the eldest brother of Ramdhani, was at home and was arrested.
4. The next act commences with Police proceedings on the following day at Samastipur which is about 12 miles from Jawahirpur. On the morning of the 12th April, at 10 a. m., Ramdhani appeared with his uncle Ramcharan at the Police Station with three prisoners, namely, Gopal, Amrit and Ali Hussain and lodged an information before the Sub-Inspector to the effect that the zemindar had at 4-45 p. m., the previous day made an attack on his house and had caused his hut to be set on fire. His complaint substantially reproduced the story which has been narrated in the early portion of this judgment.
5. The Sub-Inspector left Samastipur at 2-30 p. m. and arrived at Jawahirpur between 5 and 6. After due investigation he came to the conclusion that Ramdhani’s case was wholly false.
6. Further investigations were then made by another Sub-Inspector and also an Inspector; but the Police were unanimous that Ramdhani’s complaint was not true and they declined to send up the accused for trial. The Sub-Divisional Magistrate, however, thought that there was a prima facie case and he directed a charge-sheet to be sent up against the five appellants and eventually he framed charges under Section 436, Indian Penal Code, and Section 436 read with Section 109, Indian Penal Code, against the appellants and committed them for trial to the Court of Sessions.
7. In the Sessions Court a curious procedure was adopted. The charge framed by the Sub-Divisional Magistrate upon the evidence recorded by him as regards the offence of arson and abetment of arson was dropped and a new charge of which there had been no mention in the Committing Magistrate’s Court was added at the suggestion of the Public Prosecutor, namely, one under Section 149 read with Section 436, Indian Penal Code. The alteration had an important bearing upon the trial, for in the Darbhanga District certain offences-including an offence under Section 436 and specially enumerated in a notification published in the Official Gazette on the 11th September, 1921 are triable by Jury. All other offences remain triable by Assessors. In the opinion of the learned Sessions Judge an offence under Section 149 read with Section 436 not being an offence under Section 436 but a separate offence the accused could not claim the right of that by Jury.
8. Therefore, the first question that arises is one of jurisdiction. Was the learned Judge right in holding that a trial for an offence under Section 149 read with Section 436 and a trial for an offence under Section 436 are trials for different offences so that the notification does not apply. It may be contended that neither Section 34, Indian Penal Code, nor Section 149 create distinct offences and that they are merely rules of evidence or of Common Law which fix liability upon joint wrong-doers. On the other hand it may be argued that just as specific provision has been made for abetments, attempts and conspiracies and they are treated as separate offences, so also does Section 149 create a distinct and separate offence and that the offence of one who participated is not the same as that of him who set fire to the house. Some support for this view might at first sight seem to be furnished’ by the “judgment of Lord Sumner in Barendra Kumar Ghose v. Empevor 85 Ind. Cas. 47 : 6. P.L.T. 169 : 29 C.W.N. 181 : A. I. B. 1925 P.C. 1 : (1925) M.W.N. 20 : L.R. 6 A. (P.C.) 1 : 20 P. L. R 50 : 27 Bom. L. R 148 : 23 A.L.J. 314 : 41 C.L.J. 240 : 48 M.L.J.543 : 1 O.W.N. 935 : 3 Pat. L.R. 1. Cr.; 52 C. 197 : 26 Cr. L. J. 431 P C… Lord Sumner there speaks of Section 149 creating a specific offence and dealing with the punishment of that offence alone, but the learned Judge was there merely considering the. difference between Section 31, 149 and Section 114 of the Penal Code and in particular whether any of these sections where redundant and how far they overlapped. He came to, the conclusion-that although Sections 34 and 149 overlap they do not wholly cover the same field, and as regards Section 114 his opinion was that it was evidentiary and not punitory. The observations of his Lordship do not affect the questions now before us. It is true Section 149 is an offence in respect of which there has been participation. It prescribes a new set of conditions to which the section shall become applicable but in the end the guilt of the person shall be the guilt attaching to the principal’s crime. Now when the notification of the 11th September 1921 declares that the trial of an offence under Section 436, must be by Jury and not by Assessors, the Assessors are incompetent to determine whether a certain set of facts constitute the offence. It follows that the disability continues where the inquiry is whether upon the additional set of facts widening the field of liability prescribed in Section 149 the accused has rendered himself punishable for the same offence. The trial remains a trial, under Section 436, the Court must always first determine whether that offence has been committed by an individual and next whether Section 149 makes the participators responsible, and so it is with Section 34 also. The trial in the present case was a trial for the offence of arson and by no stretch of argument can I persuade myself that the object of the notification was that while Amrit Gope would have been triable by a Jury those who assisted in the prosecution: of the common object of the unlawful assembly were triable by Assessors, whose opinion was less final on a question of fact than the verdict of a Jury.
9. We cannot tell on the facts before us for what reason the alteration of the charges was made. It was open to the learned Sessions Judge for add an alternative charge but I do not think that it was a proper exercise of discretion to withdraw the charge which the Committing Magistrate thought to be proved and put the accused under a disadvantage by substituting another so that he might be deprived of the right of trial by Jury.
10. In my opinion, therefore, the trial was held without jurisdiction and the question is whether we should order a retrial. The answer to that question depends upon the evidence adduced.
Kulwant Sahay, J.
11. I agree.