JUDGMENT

Asutosh Mookerjee, C.J. - This Rule was issued on the application of seven constable who had been convicted of rioting u/s 147, Indian Penal Code, and sentenced to two months' rigorous imprisonment each. The Rule calls upon the District Magistrate of Howrah to show cause why the convictions and sentences should not be set aside. Eleven grounds were set out in the petition; two of these were over ruled by the Bench which granted the Rule; these raised questions of identification and severity of sentence. The other grounds have been summarised in the course of the argument before us under four heads, namely first, that the first Singh, have been tried in contravention of the provisions of Section 403(1), Criminal Procedure Code; secondly, that there is no legal evidence on which any common object could at all be found; thirdly, that the common object found is not supported by the evidence and fourthly, that the common object found is not the common object mentioned in the charge. Before we examine these points, it is necessary to recapitulate briefly the facts as found by the Courts below.

2. Mr. Bankim Krishna Ghose Executive Engineer in charge of the Brahmani Division in Orissa, has a house on the Sibpur Road in the town of Howrah. On the 2nd July 1919 two female hawkers took up their position with their baskets on the front step of the house; a third woman took up her place at the point where a private lane belonging to Mr. Ghose enters the public road. A constable, by name Murabbi Singh came up and demanded pice from the hawkers. They refused to pay and were supported in this by two persons Rishikesh Ghose and Amulyaratan Sarkar; the latter took down the number of the constable. An altercation thereupon ensued; Mr. Ghose came out of the house and asked what the matter was. The constable stated that the women were liable to arrest for selling vegetables on the public road. Mr. Ghose dissented, as according to him the hawkers were seated on his private property. He, however, told the constable that if he thought that the hawkers had committed an offence, he might arrest them, but that he need not create a disturbance. On this, the constable, aided by the fifth and seventh petitioners, Ramasis Singh and Raghuram who were constables in plain clothes, seized the hawkers' goods, loaded them on a passing out and took them as far as the Grand Trunk Road. Baghuram then went off to the Sibpur Police Station and reported to the senior Sub-Inspector that Murabbi Singh and Ramasis Singh were being assaulted as they had shifted some hawkers from the public road. The Sub-Inspector thereupon sent off a party of constables, including the rest of the petitioners, with orders to arrest the offenders and to bring them to the Police Station. The Sub-inspector also deputed the junior Sub-Inspector to accompany the constables; the junior Sub-inspector demurred at first but finally followed the party. On the way to the house of Mr. Ghose, the constables were jointed by Murabbi Singh and Ramasis Singh, and the whole party then proceeded to the spot, shouting some words among which one could catch the expression "Numberwalla Babu." When the party reached the house, they found at the doorway Pashupati Ghose, the son of Mr. Ghose. Murabbi Singh called out "this is one of them," whereupon the other constables hit him with sticks and proceeded to arrest him. The boy struggled and clung on to the door-leaves. His father came out at that moment and appears to have caught his arm with a view to prevent his arrest. There was a struggle in the course of which the Head Constable and Taluka Singh struck Mr. Ghose with sticks and finally father and son ware both arrested and marched off to the Police Station. A neighbour Hemanta Kumar Pal asked what the matter was; he was at once taken into custody by Ram Sahay Ram. A little further on, Brojendra Lal Dutta, brother-in-law of Mr. Ghose, turned up and asked the same question. He was forthwith arrested by Ta