SANKATHA RAI Vs. KHADERAN MIAN

JUDGEMENT

(1.) The petitioner in revision has been convicted of an offence under Section 323, Indian Penal Code, for hurt caused to one Khaderan and sentenced to a fine of Rs. 30 with 2 months rigorous imprisonment in default. It appears that along with Khaderan and 3 other persons he had in this very connection been prosecuted by the Police for an offence under Section 160, Indian Penal Code. In that trial the petitioner and Khaderan were both acquitted, and I understand that the reason for the petitioner's acquittal was the view of the Magistrate that the petitioner was away in Benares. It has been urged by the learned Advocate for the petitioner that trial on the charge of affray and the finding that the petitioner was away in Benares are a bar to the conviction of the petitioner under Section 323 in the same connection. The learned Advocate has endeavoured to bring his plea within sub Section 1 of Section 403 which provides that: A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

(2.) But can it really be said in the present case that when the petitioner and others were being tried for the affray, a charge under Sec. 323 could also have been framed against the petitioner and tried? The terms of Secs.236 and 237, Criminal P.C, make it clear that the answer must be in the negative. What is more, it has been pointed out by the learned Advocate who appears for the other side that Khaderan himself being under trial at that time, the most direct evidence of the offence under Section 323 would have been necessarily wanting in that case. Precisely the same question was considered by Mukerji, J. in Emperor V/s. Ram Sukh 1925 All 299 where the learned Judge pointed out how the offence of causing hurt in the course of an affray in the public street is an entirely distinct offence from the affray itself, on the ground among others that the affray is committed not alone by the party causing the hurt but by both parties, namely the party causing the hurt and the party receiving the hurt. Where the two offences are connected with each other in that manner, the matter is governed not by Sub-section 1 but by Sub-section 2, Section 403, Criminal P.C., and this sub-section definitely provides for a separate trial of the second offence. The learned Advocate has referred to Maksuddan Misri V/s. Emperor 1921 Pat 22, a case in which Jwala Prasad, J. (sitting singly) held that the principle of autrefois acquit applied to offences under Section 338, Indian Penal Code, and Section 16, Motor Vehicles Act, and observed that the petitioner before him could not be tried a second time on the same facts cognate to or involved in the offence with which he was previously charged. The observation is of somewhat general character, and the matter has to be decided on the wording of Sub-section 2, Section 403 and of Sub-section 1, S.235 which is referred to in the former subsection. Plainly we have here a series of acts so connected together as to form the same transaction in the course of which two distinct offences, one under Section 160 and another under Section 323, were committed.

(3.) The learned Advocate for the petitioner also cited Babulal Mahton V/s. Ram Saran Singh 1930 Pat 26 which contains an exposition of the English Commons Law and Section 403. But it is difficult to see anything in the decision that goes really to help the petitioner. As the learned Chief Justice pointed out in that case, the second trial was not barred because the petitioner was never in peril of punishment and cannot rely on the plea of autrefois convict" in respect of the offence that was tried on the latter occasion. It does not seem necessary to refer to several other cases to which reference has been made at the Bar because it is clear on the wording of the provisions of the law already referred to that we have here a case of distinct offences coming within Sub-section 2 of Section 403 and not a case of offences coming within Section 236 or Section 237 of that Code. The learned advocate has also urged that the petitioner ought at least be given the benefit of the doubt in view of the fact that the Magistrate who tried the case under Section 160, Indian Penal Code, accepted the petitioner's alibi at Benares. But the evidence on which that Magistrate accepted the plea was not before the Magistrate who tried the case under Section 323. The conviction in the present case must, of course, be based on the evidence adduced in this case. Whether the acquittal of the petitioner in the case of affray was or was not justified by the evidence before the Magistrate is not really for consideration in the present case, not that I have any desire to throw any doubt upon it. But that case must be treated as entirely separate from the present case, and I do not see how the acceptance of the petitioner's plea of an alibi in that case can be at all used in the present case. It seems to me that consideration ought to be entirely excluded in the present case. In my opinion the conviction of the petitioner cannot be interfered with on the two grounds that have been urged before me. The petition in revision is accordingly dismissed.