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7. After referring to Barendra Kumar Ghosh's case, (C),' their Lordships of the Patna High Court in Ramsunder's case, (B)', observed:

It is true Section 149 is an offence in respect of which there has been participation. It prescribes new set of conditions to which the section shall become applicable, but in the end the guilt of the person shall be the guilt attaching to the principal's crime. Now when the notification of the 11th September 1921, declares that the trial of an offence under Section 436 must be by Jury and not by assessors, the assessors are incompetent to determine whether a certain set of facts constitute the offence. It follows that the disability continues where the enquiry is whether upon the additional set of facts widening the field of liability prescribed in Section 149 the accused has rendered himself punishable for the same Offence. The trial remains a trial under Section 436; the court must always first determine whether that offence has been committed by an individual and next whether Section 149 makes the participators responsible.
There is an assumption in the observation quoted above that because the trial under Section 436, I, P. C., could not have been with the aid of assessors tout could only be by a jury, the assessors were Incompetent to try an offence under Section 149 when it was to be read with Section 436. The two offences are quite different. An offence under Section 436 will be committed by an individual person, or read with Section 34 may be committed by some persons Jointly. But in order to determine that an offence under Section 149 read with Section 436 has been committed certain other facts will have to be determined, namely, whether they were members of an unlawful assembly, and further whether the commission of the offence was in prosecution of the common object of the assembly, or the offence was committed in such circumstances as the members of the assembly knew to be likely to be committed in the prosecution of the common object of the assembly.
For reasons best Known to the Government, the Government did not include the trial of an Offender-under Section 149 as a trial by a Jury and considered that such an offence should be tried by the Judge with the aid of assessors. It is not for us to find out the reasons which led the State Government to exclude the trial of offences under Chapter VIII from the purview of jury trial. The fact remains that a trial for an offence under Section 149 read with Section 436 will be different from a trial for the offence under Section 436 simpliciter.
Very often the trial for such an offence is stated as an offence "under Section 438 read with Section 149". To be accurate, the offence : should be mentioned as "under Section 149 read with section 486", because the substantive offence for which a person is being tried in those circumstances is not under Section 436, but under Section 149 read with the help of Section 436, In our opinion, therefore, the trial of the offences under Section 323 read with Section 149 and Section 333 read with Section 149, or to be more accurate of the offences under Section 149 read with Section 323 and, Section 149 read with Section 333 should have been with the aid of assessors and not by Jury.