JUDGMENT 1. This Rule relates to the conviction of, and sentences passed by the Magistrate upon, Sahadev Ahir, Ramlakhan Ahir, Khedan Ahir, Deonath Ahir and Hurdeo Ahir in a rioting case, they being all convicted under sec. 147, I. P. C., and in addition to this, Deonath Ahir and Hardeo Ahir have been found guilty of the offence under sec. 326, I. P. C., and the three others, namely, Sahadev, Ramlakhan and Khedan, of the offence under sec. 326, coupled with sec. 149, I. P. C. It appears that there were two cross rioting cases instituted before the Magistrate, one of these cases being by one Simrikh. This man held certain lands under Sahadev as under-tenant in a Government estate; and his case was that the accused attempted to evict him by forcibly removing a hut on his land, and thus committed a riot, and that some of the party of the accused inflicted grievous hurt upon some of his (Simrikh's) party. The other case was started by Sahadev, his allegations being that Simrikh was never in possession of the land, and that the disturbance was caused by his (Simrikh's) party in attempting to put up a new maroi or hut on the land which was not in his (Simrikh's) possession. Thus, there were two cross-counter rioting cases. The Magistrate tried them out, the trials being held separately, though it may well be said that the cases were tried almost simultaneously. On looking at the order-sheets in both these cases, it appears that Sahadev's case was taken up first, that is to say, on the 18th June, when some witnesses for the prosecution were examined. The other case, namely, the case of Simrikh was taken up on the next day, that is to say, the 19th June, when certain witnesses for the prosecution in that case were examined. The order-sheets show that on certain days certain witnesses were examined in both the cases, while, on other days, witnesses in one or the other case were examined, and, in some instances, some of the accused in one case were examined as witnesses for the prosecution in the other. The charges were framed in Sahadev's case, which as we have already mentioned, was taken up first in order of time, on the 27th June, while the charges in the other case were framed on the 1st July. The charges were framed in Sahadev's case, which as we have already mentioned, was taken up first in order of time, on the 27th June, while the charges in the other case were framed on the 1st July. Then, evidence in both the cases being completed on the 16th July, arguments were heard in the two cases, and, on the 18th idem, both the cases were disposed of, separate judgments being given in each of the cases. The Magistrate was of opinion, that the Petitioners before us were guilty of the offences attributed to them, that they caused the riot, and that, in prosecution of the common object of the unlawful assembly, some of the members of the accused's party caused grievous hurt to some of the people belonging to Simrikh's and he accordingly convicted Sahadev, Ramlakhan and Khedan under secs. 147 and 326 coupled with sec. 149, I. P. C., and sentenced each of them to nine months' rigorous imprisonment, six months for the first-mentioned offence, and three months for the other offence ; while Deonath and Hurdeo were sentenced each under sec. 147 to six months' rigorous imprisonment, as also to six months' rigorous imprisonment under sec. 326, I. P. C. In the other case, the Magistrate was of opinion, as we gather, that as Simrikh's party was not in fault the case should be dismissed. 2. The learned Sessions Judge, on the appeal presented to him by the Petitioners before us, has arrived at the same conclusion as the Magistrate ; and he has further expressed the opinion, that though the simultaneous trial of the two cases was not quite commendable, yet the accused were not prejudiced by this irregularity. 3. The chief contention that has been raised before us by the learned counsel for the Petitioners is, that the trial was altogether bad in law by reason of the two cross-cases having been tried together or simultaneously and he has referred us to certain cases decided by this Court, as also to the case of Subrahmania Ayyar I. L. R. 25 Mad. 61 (1901). 61 (1901). In regard to the last-mentioned case, all that we need say, is that the observations of the Judicial Committee relied upon referred to the joinder of charges which should never be joined together in the same trial, and they held that the joinder of such charges in contravention of the provisions of secs. 233 and 234 of the Code of Criminal Procedure was not an irregularity, but an illegality, which could not be remedied by sec. 537 of the Code. 4. As regards the other cases to which reference has been made, the one which is chiefly relied upon is In the matter of Chakowri Lall 13 C. L. R. 275 (1883) where a riot occurred, and complaints were lodged by both parties, the witnesses for the prosecution were in each case in turn examined-in-chief and then in turn cross-examined, and, in like manner, re-examined, and the Court discharged the accused in one of the two cases, and called upon the accused in the other to go into his defence. And it was held, that the procedure adopted was improper and that, therefore, there should be a new trial. It will, however, be observed that, though this Court condemned the procedure adopted by the Magistrate, they did not order a retrial in the case in which the accused was discharged, upon the ground that there was no failure of justice in that case ; while in the other case, they held that the trial was irregular, being evidently of opinion, that the Magistrate had prejudged the case. We need hardly say, that the mode of trial adopted by the Magistrate in the two cases with which we are concerned was very different indeed. In this view of the matter, the case just referred to does not support the contention of the Petitioners. 5. There are, however, other cases in which the question now before us was discussed, and considered, but it is not necessary to refer to all of them. It will, we think, be sufficient if we refer to the last reported case upon the point, and that is the case of Queen-Empress v. Chandra Bhuiya I. L. R. 20 Cal. 537 (1892). It will, we think, be sufficient if we refer to the last reported case upon the point, and that is the case of Queen-Empress v. Chandra Bhuiya I. L. R. 20 Cal. 537 (1892). There two cross-cases of rioting and grievous hurt were committed separately for trial before a Sessions Judge, who, having heard the evidence in the first cusp, heard the evidence in the second case, examined some of the accused in the one case as witnesses for the prosecution in the other, and vice versa, and subsequently heard the arguments in both the cases together, and the opinions of the Assessors (who were the same in both the cases) were taken at one time, and both the cases were dealt with in one judgment. And it was held, that this mode of trial, although irregular, did not prejudice the accused in their defence and that, under such circumstances, a retrial was not made necessary, by reason of such irregularity. It will be observed, that Mr. Justice Prinsep, who delivered the judgment in this case was one of the Judges who decided the case In the matter of Chakowri Lall 13 C. L. R. 275 (1883) to which we have already referred, and that learned Judge, in delivering his judgment referred to the Full Bench decision of this Court in the case of Queen v. Bazu 8 W. R. Cr. 47 : s. c. B. L. R. Sup. Vol. 750 (1867); and he observed as follows :--" In the present case, it can safely be affirmed, that the mode of trial, although irregular, did not prejudice the Appellants in their defence and there is the high authority of the case of Queen v. Bazu 8 W. R. Cr. 47 : s. c. B. L. R. Sup. Vol. 750 (1867) for holding that under such circumstances a retrial is not made necessary by reason of such irregularity. We may observe that in that case, it was said by Mr. Justice Phear that, in the peculiar circumstances of the case, the prisoner has perhaps been rather benefited than prejudiced by the particular course in question having been taken in his trial." 6. It was held that there was no prejudice to the accused by reason of the mode in which the trial was held, and the learned Judges accordingly dismissed the appeal. It was held that there was no prejudice to the accused by reason of the mode in which the trial was held, and the learned Judges accordingly dismissed the appeal. We further observe that the case of In the matter of Chakowri Lall 13 C. L. R. 275 (1883) was referred to in the course of the argument though we do not find any notice of it in the judgment that was delivered by Prinsep, J., in the case. Upon a consideration of the authorities upon this point we are unable to say that the trial in this case is vitiated by reason of the procedure that was adopted by the Magistrate, nor do we think that the Petitioners have been in any way prejudiced thereby, and it seems to us, that it was, as Phear, J., observed in the case of Queen, v. Bazu 8 W. R. Cr. 47 : s. c. B. L. R. Sup. Vol. 750 (1867) an advantage to the accused rather than a disadvantage to him, that the Magistrate should have had before him the evidence in both the cases before he made up his mind as to which case was true and which untrue. Upon these grounds, we are unable to accept the contention which we may here say, is the chief contention that has been raised before us by the learned counsel for the Petitioners. 7. The next ground that has been raised before us by Mr. Jackson for the Petitioners is, that the conviction of Sahadev, Ramlakhan and Khedan under sec. 326 read with sec. 149 of the Indian Penal Code is bad, it being not proved that they individually committed any act in order to cause grievous hurt to the complainant's party. We think this contention is correct; for, referring to the case of Nilmoni Poddar v. Queen-Emprees I. L. R. 16 Cal. 442 (1889), decided by a Full Bench of this Court, we find it laid down that separate sentences passed upon persons for the offences of rioting and grievous hurt are not legal, where it is found that such persons individually did not commit any act which amounted to voluntarily causing hurt, but were guilty of that offence under sec. 149, I. P. C. We think that having regard to this ruling the conviction of these persons under sec. 326, coupled with sec. 149, I. P. C. We think that having regard to this ruling the conviction of these persons under sec. 326, coupled with sec. 149, I. P. C., should be set aside, and the sentence for that offence, namely, three months' rigorous imprisonment, must be struck out. Another contention that has been raised before us by the learned counsel for the Petitioners is with reference to certain observations in the judgment of the Sessions Judge. We do not think it necessary to say anything in particular upon this matter. It is sufficient to say that the Magistrate came to a distinct finding that the Petitioners were guilty and the learned Sessions Judge has substantially affirmed the same view.