GIRDHARI LAL GUPTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) A Police Havildar, attached to the Puruna Bazar. Outpost within Bhadrak Police Station gave a written report that the petitioners on one side and opposite pNies 2.to 4 on the other committed afray at about 9 a.m. on 20 -8 -1978. Charge sheet was received by the Subdivisional Judicial Magistrate, Bhadrak on 20 -11 -1978 against all the six persons for an offence under section 160, I.P.C. and by an order of that date cognizance was taken. The matter was kept pending in the court for almost four years without any substantial progress. On 18 -10 -1982, the learned Sub -divisional Judicial Magistrate made an order to the effect that on going through the evidence of the witnesses examined for the prosecution he found a prima facie case under section 323, Indian Penal Code. He indicated that the evidence disclosed that one Kisanlal Gupta, opposite party no. 2, was assaulted by the three petitioners. Out of the two sets of accused persons implicated in the case under section 160, Indian Penal Code Kisanlal alone had sustained injuries in his body. It was pointed out to the court on behalf of the petitioners that cognizance of the offence under section 323, Indian Penal Code could not be taken in 1982 after more than four years of the occurrence in view of the limitation provided under section 468 of the Criminal Procedure Code, the limitation being one year. Dealing with this contention, the learned Sub divisional Judicial Magistrate indicated: "After going through the section, I find the restriction imposed under section 468. Criminal Procedure Code, is not applicable to such cases because while the court is in seisin of a case as material incriminating accused for different offence is revealed, the court being in its seisin of the case much prior to the limitation period, has got every power to take cognizance of offence in addition to the accusation made against the accused earlier. The same principle regarding addition and alternation of the charge contemplated under section 216, Criminal Procedure Code is also applicable in the instant case. Accordingly, the limitation cannot be a bar for taking cognizance under section 323, Indian Penal Code." He overruled the other objections raised and ultimately directed: " ¦ ¦. I find that not only two sets of accused persons face trial in a joint trial under section 160 as well as 323, Indian Penal Code but also if no trial has taken place under section 323, Indian Penal Code and only the accused have faced trial under section 160, Indian Penal Code, a fresh complaint under section 323, Indian Penal Code, by one set of accused against other is punishable even after the disposal of the case. In the background of my aforesaid discussion I step to a conclusion that taking of cognizance under section 323, Indian Penal Code at the stage of trial is permissible under law and it will not cause any prejudice to any accused. Hence, in addition to the accusation under section 160, Indian Penal Code as made in the charge sheet, I also take cognizance under section 323. Indian Penal Code. Recall the witnesses already examined for the purpose of cross -examination by the caused... " This direction is assailed in the revision application.

(2.) THERE can re no dispute that if the entire case is before the court, on the basis of evidence which may come before it, a new charge can be framed or a charge already framed can be altered at any stage during the pendency of the case. I am prepared to agree with the learned Magistrate approach to the matter keeping that aspect in view. Prosecution came with a case of afray, which meant that two or more persons by fighting in a public place had disturbed the public peace. The petitioners on one side and opposite parties 2 to 6 on the other have been reported to have fought. Opposite party no. 2 had not made any complaint to the court of having been assaulted by the petitioners. It is quite possible that as a result of fighting in a public place, opposite party no. 2 sustained certain injuries while the others did not. The evidence led by the prosecution was in support of the charge of afray and not in regard to assault by the petitioners on opposite party no. 2. Merely because the learned Magistrate has found that there have been some injuries on opposite party no 2, it cannot follow that the petitioners bad not been assaulted. A charge of afray brings in both the sides his accused persons since both the fighting groups have committed the offence. A charge of assault punishable under section 323, Indian Penal Code has a prosecutor on one side and the accused persons on the other. The First Information Report which led to the furnishing of the charge -sheet did not relate to the incident of assault but involved the allegation of fighting in a public place leading to disturbance of the public peace.

(3.) THIS aspect apart the other objection which had been raised on behalf of the petitioners has also a bearing. The cases which the learned Magistrate referred to were of a different type. In the present case. It is not the stand of opposite party no. 2 that the event was one -sided and he was beaten up. If the case be so, the charge under section 160. Indian Penal Code would not be maintainable because there would be no affray and it would be only a case of assault learned Standing Counsel has accepted this analysis and has argued that the order of the learned Sub divisional Judicial Magistrate should be vacated in so far as the taking of cognizance of the offence under section 323, Indian Penal Code is concerned.