The technical definition of attempt to commit an offence and the abetment of such offence under Sec.115 of the Penal Code.

Reuben, J.

1. This petition is directed against an order of the Sessions Judge of Patna allowing a petition under Sec. 436, Cr. P. C.

2. On 12-5-1951 at 11 P. M. C. P. Sinha Assistant Sub-Inspector of Police of Alamgunj police Station, instituted a case under Sections 148/ 323 and 436/511, I. P. C. on a first information report lodged by opposite party Md. Bashir relating to an occurrence which took place that night in Mirshikartoli in the jurisdiction oil the police station. The story told by him was that one Md. Sayeed of. Mirshikartoli remonstrated with one Anandi Mahto for entering the house of one Maju in Majus absence and Anandi became abusive. Thereupon Md. Bashir and Md. Sayeed removed him from the house. On this petitioner Rajindera and the son of one Punit Mahto ran south calling out:

"Dauro Mirshikartoli Wale Musalman logon ko lut lo. Anandiko sab pit raha hai."

On the alarm Jhamela Prasad and Nathuni Sao, petitioners, came to the corner of the road and called out:

"Mirshikartoli ko loot lo aur Musalmano ke ghar me ag laga do."

Thereafter a mob of about 250 Hindus, variously armed, came to the back of the house of Mt. Salema and began to beat her Chappar (roof) with lathis and "ag lagane ka koshis kia". Nathuni Sao gave a tin of kerosene oil to his son and to Raghunath "so that the houses of Musalmans might be set fire to and the entire Mirshikartoli mahalla burnt." Bricks were thrown in plenty into the mahalla. Just as people were attempting to set fire to the roof the Sub-Inspector of Sultangunj police station arrived from the south with some police constables and the Assistant Sub-Inspector of Alamgunj arrived with more constables from the north and stopped the riot and arrested 9 or 10 men at the back of the house of Mt. Salema. After investigation the Assistant Sub-Inspector submitted a charge-sheet against 16 accused persons under Sec.148/323, I. P. C. The case was transferred to Mr. S. P. Varma, Magistrate of the first class, for disposal, who after examining 10 prosecution witnesses framed charges against the accused persons under Sections 147, 148 and 323/149, I. P. C. The Public Prosecutor was apparently satisfied and the trial of the case proceeded in the ordinary course and prosecution witnesses were recalled and cross-examined.

3. In the meantime, however, an objection was made on behalf of the first informant that a charge should be framed under Sec. 436/511, I. P. C. Having heard on two days the arguments in Support of this contention, the Magistrate on the 31st August 1951 rejected the objection, holding that all that the prosecution evidence on the point made out was preparation which had not yet reached the stage of an attempt to commit the offence of arson. This decision was reversed by the Sessions Judge on 17-12-3 951, expressing the view that a charge under Sec. 436/ 511 should be framed. For some reason the return of the record to the Magistrate was delayed and it was not till the 18th February 1952 that proceedings were resumed before the Magistrate who, treating the order of the Sessions Judge as one to make a further enquiry, cancelled the charges already framed by him and gave the accused an opportunity of cross-examining the witnesses under Sec.208, Cr. P. C. The cross-examination of the witnesses was in progress when the present petition was filed and further proceedings were stayed by this Court.

4. Although several eye-witnesses to the alleged occurrence have been examined at length or tendered for cross-examination there are only three witnesses who have given any evidence relevant to the point under consideration. I have already mentioned Bashir (P. W. 1) who is the first informant. He repeats what he said in his first information report about the cry raised by Jhamela and Nathuni Sao and the making over of kerosene oil by Nathuni Sao to Rajendra and Raghunath Koeri. He continues:

"Cloth was wrapped in a lukari and kerosene was put and it was burnt and then attempt was made t