The Public Prosecutor vs Palathingal Valia Peedikakkal Muhamad

Odgers, J.—We agree with the Sessions Judge in thinking it doubtful and arguable whether the part taken by the accused amounted to

waging war, u/s 121, Indian Penal Code. We hare purposely not entered into the merits of the case on the evidence; but the Sessions Judge finds

that the accused had only a stick; he was not otherwise armed or dressed in uniform. We do not for a moment suppose that he was as alleged

innocently walking along the the road; but the police after killing or wounding other Moppilas forced the mob to retire and the mob then dropped

their weapons and 38 of them were arrested. This is admittedly the first incident in the rebellion and we do not express an opinion that it was or

was not an act of war. We think it doubtful, and we think the accused is entitled to the benefit of that doubt. Further the accused was summarily

convicted by a magistrate having no jurisdiction on 6th September, 1921,under Section 149, as far as we can make out, from the vague judgment

of the magistrate. This was subsequently set aside by the High Court on hebeas corpus proceedings, which ended on 30th August 1922. The

Government did not either in 1921, or till 8th December 1922 decide to prosecute this accused u/s 121. We cannot understand this delay and we

think it hard that accused having succeeded before the High Court and now having been charged u/s 121, Indian Penal Code, should now be

further pursued on that charge.

The Sessions Judge refused to find whether the facts proved against accused amounted to waging war or not, but convicted accused, u/s 147,

of rioting. There is no appeal with regard to this. We should add that the habeas corpus proceedings were not completed, till 11 months of the

accused''s sentence of 2 years had been served. The Appeal must be dismissed.