SREERAMULU AND FOUR ORS Vs. KING-EMPEROR

JUDGEMENT

(1.) IN this case five accused apply in revision to this Court to set aside their convictions by the appellate Magistrate under Section 160, INdian Penal Code. They were originally convicted under Secs.147 and 323, INdian Penal Code by the trying Magistrate but on appeal the Appellate Magistrate acquitted the first accused altogether and changed the conviction of the five accused under Secs.147 and 323 INdian Penal Code, into one under Section 160, INdian Penal Code, acquitting them of the offences "which they were originally charged with. It seems quite clear to my mind that the charge under Secs.147 and 323, INdian Penal Code, cannot be altered into one under Section 160 without a proper charge being framed and the accused tried again on the latter charge. It is not a case where an accused charged for a major offence is convicted of a minor offence where the major offence is not proved. The offence under Section 160, INdian Penal Code, is different from those under the sections under which the accused were originally charged, for under Section 160 to establish an offence of affray it must be shown that the fight took place in a public place and that there was also a disturbance of the public peace. Neither of these facts are in evidence in this case. The Public Prosecutor has drawn my attention to a case in Sabir Husain V/s. Emperor (1921) 19 A.L.J. 487 in which a learned Judge of the Allahabad High Court converted a conviction under Sections 147 and 323, INdian Penal Code, into one under Section 160 in revision. But in doing so, he does not seem to have considered the propriety of altering the conviction in that manner and whether it was right to do so without giving the accused an opportunity to meet the charge under Section 160. No reasons are given and there is no discussion in the judgment as to whether such alteration could legally be made. The learned Judge thinking that on the evidence in the case an offence under Section 160 was made out, convicted the accused under that section in revision. I am unable to follow the precedent that has been so created. I am of opinion that the alteration of the charge under Secs.147 and 323 INdian Penal Code, into one under Section 160 is not justifiable in this case. The accused must, therefore, be acquitted of that charge. IN the result all the accused succeed in revision. Their convictions and sentences must be set aside and the fines, if paid, refunded.