GULABCHAND Vs. EMPEROR

JUDGEMENT

(1.) THE applicant Gulabchand as well as his two co-accused, Bridhichand and Punamchand, whose applications are also disposed of in this order were convicted by the Magistrate, 2nd Glass, Chhindwara, of an offence under Section 160, I. P.C., and each was sentenced to a fine of Rs. 60. The Magistrate, 1st class, Chhindwara, who heard the connected appeals, maintained the convictions and sentences.

(2.) THE only question I am concerned, with in these applications is whether the two lower Courts were correct in framing a charge under Section 147,I. P. C, while convicting the applicants under Section 160, I. P.C. I have been referred in this connexion to the decision of Krishnan, J., in Sreeramulu v. King-Emperor A.I.R. 1924 Mad. 375 as being a direct authority for the proposition that has been advanced on behalf of the applicants viz., that the trial was illegal on the above ground. That case was entirely different, because therein there was clearly no evidence on record that the fight had taken place in the public place and that there was a disturbance of the peace. As regards the latter part of the said judgment, it does not seem to me that in the present case there is the slightest ground for supposing that the applicants were in any way prejudiced in their defence by the action of the Magistrate. The disturbance took place, as is shown by the 1st Glass Magistrate, in his appellate judgment, in a public place and there was obviously a breach of the public peace. If Section 237 of the Criminal P.C. is to have any real meaning at all, the present occasion was obviously one for giving effect to it. In any event, with all deference to the learned Justice who decided the case quoted above, I should personally not have the slightest hesitation in preferring the view taken by Ryves, J., in Sabir Husain v. Emperor A.I.R. 1921 All. 261. Section 237 of the Criminal P.C. must necessarily be limited in its operation to cognate offences. In the present instance, the only alleged new element concerns the breach of the public peace, but this element was obviously present before the minds of the Court and the accused all through the case. The decision of Jenkins, C.J., and Betty, J., in Emperor v. Sakharam Ganu is not in the slightest degree to the point. There the relative offences concerned were ones under Sections 376 and 366, I.P.C. As regards each of these offences, different elements entered into them and different questions of fact were concerned, whereas precisely the reverse is true of the present case and the offences under Sections 147 and 160 respectively were obviously ejusdem generis. This being so, there was, in my opinion, no impropriety whatever in convicting the applicant under Section 160 of I. P.C.