KARIYAPPA Vs. SOMANNA

JUDGEMENT

(1.) The question raised in this case is whether the trial of Petitioners for offences alleged by the Respondent in C. C, No, 158/1954 on the file of the Munsif-Magistrate, Bhadravati, is barred by virtue of the proceedings in C. C. No-951/53 in the same Court. In the latter case the Petitioners as well as the Respondent were accused of committing affray, an offence under Section 160, I. P. C., convicted of the said offence and sentenced to pay a fine" of Rs. 20/- each. The Respondent now wants the Petitioners to be dealt with according to law for causing him hurt. Objection was taken to this on the ground that the facts relating to both cases are common and the offences alleged though different are those committed in the course of the same transaction. The contention in the lower Court and repeated here by Sri Gular Sreenivasa Rao on behalf of the accused is that provisions of Section 403, Criminal P. C. and Article 20 of the Constitution of India operate as a bar to the case being proceeded with. Article 20 states that no person shall be prosecuted and convicted for the same offence more than once; and according to Section 403, Criminal P. C:

(2.) The petition which was posted for hearing before a single Judge at first has been - referred to a Division Bench as the point raised is said to be of importance. The offence for the commission of which the Petitioners were convicted being different from that now complained of, Article 20 or the Constitution cannot prima facie be availed of. As regards Section 403, Cr. P. C., since it is admitted that the trial in the" former case was confined to the offence of affray, the question which needs consideration is whether the Petitioners' should have been tried then also for the offences alleged by the Respondent. It is unnecessary to examine the bearing of this factor on the maintainability of the present complaint in view of the decisions of this Court. So far back as 1902 a Division Bench of this Court in 7 Mys CCR 131 (A) laid down that a pre vious conviction for affray was no bar to a sub sequent trial for causing hurt during affray. Following this decision Doreswamy lyer J. in 31 Mys CCR 335 (B) observed that offences of affray and hurt are distinct- offences and not merely separable offences as that term is explained in Section 35, Criminal P. C. The view taken in these two cases is supported by the decision in 'Thanammal v. Ala- melu Ammal', AIR 1940 Mad 224 (C) where it was held that a conviction under Section 75 City Police Act was no bar to the trial for offences under Sections. 323 ; and 352, Penal Code.

(3.) 35 Mys CCR 10 (D) cited by Mr. Gulur Srinivasa Rao is distinguishable as it is based on the consideration that the facts relating to the offence under the Excise Act of which the accused was acquitted were the same as those relating to offences under the Indian Penal Code. It cannot be said that the requirements for the offence of affray are the same as those for hurt as likelihood of disturbing the public peace is essential for one and harm or injury to an individual for the other. The decision of the Full Bench of the Madras High Court in -- 'Emperor v. John MoIner', AIR 1936 Mad 353 (FB) (E) cannot afford help to the Petitioners as it turned upon the facts constituting offences under Sections. 420. (cheating) and 406 (misappropriation) being the same. For the same reason - 'Chaito Kalwar v. Emperor', Al R 1928 Cal 240 (F) and -- 'Kailashpati Upadhya v. Gopi Koeri', AIR 1930. Cal 60 (l) (G) do not help the Petitioners.