MUTHUKANAKKU PILLAI Vs. EMPEROR

JUDGEMENT

(1.) In this case accused Nos. 2, 3, 4, 5 and 7 were convicted by the Second Class Magistrate of an offence under Section 147 of the Indian Penal Code, i.e., of rioting. It is unnecessary to go into the evidence for the prosecution which was believed by the Second Class Magistrate who originally tried them. The common object alleged was of getting P.W. No. 1, Udayar Pusari, to execute a certain re-conveyance of lands. On appeal to the First Class Sub-Divisional Magistrate, he agreed with the lower Court as to the credibility of the prosecution evidence bat altered the convictions into convictions under Section 352, i.e., assault, as against accused Nos. 4, 5 and 7. Accused Nos. 2 and 3 were convicted of abetment of assault under Sections 352 and 114, Indian Penal Code.

(2.) With regard to accused Nos. 2 and 3 their case can be dealt with at once. The conviction of the abetment of assault on a charge under petition 147, Indian Penal Code, clearly cannot stand, and if authority is wanted, it is to be found in the case reported in Padmanabha Panjikannaya V/s. Emperor 5 Ind. Cas. 145 : 33 M. 264 : 7 M.L.T. 79: 20 M.L.J. 84 : 11 Cr. L.J. 49. With regard to the second conviction against accused No. 7, i.e., wrongful restraint, Mr. Kesava Iyengar, who has delivered a very learned argument for the accused, had little to say and I think that the conviction can stand.

(3.) The real point of this revision petition is as concerns the convictions of accused Nos. 4, 5 and 7 under Section 352, they having been charged under Section 147. The learned Vakil admits that the point is a technical one and is purely one of law and I have to decide whether such a conviction is illegal, and, if so, I must interfere, Now, several cases have been sited but they are, many of them, cases on Section 323, i.e., hurt. It is contended that Section 238 of the Criminal Procedure Code does not apply to a case of this kind. In other words, that assault is not a minor offence to rioting. Reliance is placed on a judgment of the Calcutta High Court in Kanta Neya V/s. Emperor 9 Ind. Cas. 455 : 12 Cr. L.J. 82 which was, as a matter of fact, a case of Secs.147 and 323. The passage which has caused me some perplexity in the judgment is as follows "It cannot be said that any minor offence is included in Section 147, The use of criminal force is a necessary ingredient in that offence but any particular kind of voluntary use of such criminal force may and should be separately charged, etc." I think the word any must be taken as equivalent to every kind of minor offence. I do not think that the learned Judges meant to lay down that there could be no minor offense under Section 147 at all and this view finds support in a case reported in Sabir Husain V/s. Emperor 63 Ind. Cas. 157 : 19 A.L.J. 487 : 3 U.P.L.R. (A.) 101 : 22 Cr. L.J. 621. But that does not dispose of the difficulty. The question is, is the second part of the sentence quoted above applicable to any particular kind of voluntary use, etc.?