Full Judgment
Sharfuddin and Coxe, JJ.
1. This was a Kale issued to the District Magistrate of the 24-Porgannahs to show cause why the sentences passed, under Section 323 of the Indian Penal Code, on the first three petitioners, should not be set aside, on the ground that separate sentences could not be passed against them under both the Sections 147 and 323 of the Indian Penal Code.
2. The three petitioners referred to above Lave been convicted under Section 147 of the Indian Penal Code, and have each been sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 50. They have also been convicted under Section 323 of the Indian Penal Code and each sentenced to a further term of three months' rigorous imprisonment. Objection is taken by them that the separate sentences under Sections 147 and 323 of the Indian Penal Code are illegal; and reference is made to the Full Bench ruling in the case of Nilmony Poddar v. The Queen Empress (1889) I.L.R. 16 Calc. 442 where it was held 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 cause hurt, but were guilty t of that offence under Section 149 of the Indian. Penal Code. In the present ease, however, there is a distinct finding that each of the three petitioners took an individual part in the assault. The Full Bench ruling above cited does not, therefore, avail them. There is another case, namely, that of Mohur Mir v The Queen-Empress (1889) I.L.R. 16 Calc. 725 where it was held, that separate terms of imprisonment under Sections 147 and 323 of the Indian Penal Code would be legal if the men thus convicted had individually caused hurt. There is another case to the same effect, namely, the case of Ferasat v. The Queen-Empress (1891) I.L.R. 19 Calc. 105 in which also it was held that under the above circumstances separate sentences are legal. In this last case the effect of the case of Nilmony Poddar v. The Queen Empress (1) was explained.
3. In these circumstances, we are unable to interfere with the separate sentences passed on the first three petitioners; and we accordingly discharge this Rule.