JUDGMENT 1. The Petitioners before us were charged under sec. 324 of the Penal Code and were convicted by the Sub-Deputy Magistral of Kalna and each of the Petitioners was sentenced to undergo three months' rigorous imprisonment. On appeal the District Magistrate of Budwan altered the conviction to one under sec. 35 I. P. C, as regards Moti Sheikh and sentenced him to rigorous imprisonment for 14 days. The conviction and sentence of the Petitioner, Sital Chandra Moitra, were upheld. The main ground on which we issued the Rule was that the charge as framed was improper and extremely confusing. It says that " you, on or about the 1st day of February 1906, at Malatipur voluntarily caused hurt to Babnuilah, Sadhu Sheikh and Lal Chand by a dio a cutting instrument and thereby committed an offence punishable under sec. 324, I. P. C." There were two persons charged with causing hurt to three persons with a dao. 2. The fact is that there was no case of hurt by dao by one of the accused and Motilal Sheikh has now been convicted under sec. 352 for using a lathi against Sadhu and Babnuilah. This irregularity in the charge might have prejudiced the accused in their trial. 3. The judgment of the District Magistrate shows that there was some provocation and a little confusion at the time. 4. Having given our best consideration to the evidence and the judgments of the two lower Courts we think that the conviction of the accused should be set aside and that they should be retried on charges properly framed. The case should not be tried by the same Magistrate again. The District Magistrate will appoint some Magistrate at the headquarters to take up the case. We further direct that in the event of a fresh conviction being come to against the Petitioners the imprisonment they have already undergone be taken into consideration.