BABU RAM Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Kumaun asking this Court to set aside the convictions of Babu Ram and Bhim Singh under Section 160, I. P.C., and the sentences of fines of Rs. 75 and Rs. 25 respectively. The sole ground for the recommendation is expressed as follows: But I am doubtful whether on the facts stated the conviction under Section 160, I. P.C., is justified. The offence of "affray" is committed when two or more persons, by fighting in a public place, disturb the public peace. There must not only be a disturbance of the public peace; there must also be a fight, and the fight must be between two or more persons. By this I understand that there must be at least one person fighting on each side. In the present case Kali Das was acquitted of an offence under Section 160, I. P.C., on the ground that "he took no part in the affray." He did no fighting at all. He was merely dragged out of his shop and beaten. If this was the case we are left with Babu Ram and Bhim Singh, both on the same side. In the circumstances can there be said to have been a fight at all? If Kali Das did not fight, it is difficult to see how Babu Ram and Bhim Singh can have done so, for as I understand the meaning of the word there cannot be a fight without at least one combatant on each side.

(2.) There are several fallacies in the reasoning of the Sessions Judge and his recommendation that these fines should be remitted. The accused were prosecuted by the police under Section 160, I. P.C., and if the reasoning of the Sessions Judge was correct, and no cognizable offence was committed, by the beating of Kali Das in Pauri Bazaar Street, the result would follow that the constable who intervened would have no right to do so under Section 149, Criminal P. C, but he could only have acted in the right of private defence of the body of Kali Das under Section 97, I. P.C. The Sessions Judge states that traffic was temporarily suspended. But his view is that a constable would have no power to interfere with persons who were suspending traffic in this manner, as there is in his opinion no cognizable offence. If therefore Kali Das did not make a complaint under Section 323, I.P.C., for the wrong done to him privately, the accused Babu Ram and Bhim Singh could not, in the opinion of the Sessions Judge, be in any way punished. If the Indian Penal Code failed to provide for the punishment of persons who obstructed traffic in a public street in this manner, the Code would surely be defective. But Chap. 14, I. P.C., does provide for offences against the public convenience, and Section 283, I. P.C., provides for the punishment of whoever by doing any act, causes danger, obstruction, or injury to any person in any public way by fine which may extend to two hundred rupees. In the present case there is a clear finding that the accused Babu Ram and Bhim Singh caused obstruction to traffic in the public way, and they also caused injury to Kali Das in the public way. They could therefore have been charged under Section 283, I. P.C., or if not charged under that section they could have been convicted under it in accordance with the provisions of Section 237, Criminal P.C., and that conviction under Section 160, I. P.C. could be altered on revision to a conviction under Section 283, I. P.C. Section 283, I. P. C, is cognizable and triable summarily. The only difference would be that the sentences of one week's rigorous imprisonment in lieu of payment of fine would be altered to one week's simple imprisonment, as Section 67, I. P.C. provides that where the offence is punishable with fine only, the imprisonment in default of payment of fine shall be simple.

(3.) The next question is whether on the facts found by the Magistrate the offence of Section 160, I. P.C., was proved against Babu Ram and Bhim Singh. The Sessions Judge has not quoted the findings correctly, and he is wrong in stating that the Magistrate found as regards Kali Das that he did no fighting at all. He was merely dragged out of his shop and beaten.