1. On November 5, 1928, there was a fight between the complainant and the accused in connection with the carcass of a cow. The complainant and the accused were all tried on a charge under Section 160 of the Indian Penal Code and convicted and sentenced to varying fines. The complainant then filed the present complaint on November 27, 1928, charging the accused with rioting and hurt. The learned Magistrate dismissed the complaint under Section 203 on the ground that there was no proof of rioting, that the offence fell under Section 323 of the Indian Penal Code, and that the present prosecution was barred under Section 408 of the Criminal Procedure Code. Under Sub-section (2) of Section 408 a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 285, Sub-section (1).
2. The charges under as.. 147 and 323 of the Indian Penal Code could have been joined against the present accused in the previous prosecution under Section 235, Sub-section (1), of the Criminal Procedure Code, as the offences were committed in the course of the same transaction. The offences would not fall within Section 236 of the Criminal Procedure Code, and therefore Sub-section (1) of Section 403 would not apply.
3. In Emperor v. Ram Sukh (1924) I.L.R. 47 All. 284 it was held that the offences provided for by Sections 160 and 323 respectively of the Indian Penal Code are distinct and separate offences, and a conviction under Section 160 on a prosecution initiated by the police would be no bar to a subsequent trial under Section 823 on a complaint laid by the party injured.
4. The case of Emperor v. Kallasani : AIR1927Bom629 stands on a different footing. There it was held that an acquittal on a charge under Section 160 of the Indian Penal Code, bars subsequent trial on the same facts for an offence under Section 61(o) of the Bombay District Police Act, 1890. The offence under Article 61 (o) of the Bombay District Police Act relates to the behaviour in a disorderly manner in a street or place of public resort, The affray under Section 160 of the Indian Penal Code is defined by Section 159, 'Where two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray.' The question, therefore, whether the public peace was disturbed or not would be a matter of doubt from the very beginning and alternative charges under Section 160 of the Indian Penal Code and Section 61(o) of the Bombay District Police Act of 1890 could be framed under Section 236 of the Criminal Procedure Code, On a charge under Section 160, Indian Penal Code, an accused can be convicted under Section 6L (o) of the Bombay District Police Act under Section 237 of the Criminal Procedure Code if it was found that the public peace was not disturbed. In the present case the offences of rioting and hurt were committed in the same transaction together with the offence under Section 160 of the Indian Penal Code and were distinct offences and could have been joined in the same trial with the charge under 8, 160 of the Indian Penal Code under Section 235 of the Criminal Procedure Code and act under Section 236 of the Criminal Procedure Code. Therefore, under Section 403(2) of the Criminal Procedure Code the conviction under Section 160 would not bar the prosecution tinder Sections 147 and 323 of the Indian Penal Code, We would, therefore, set aside the order of the Magistrate and direct the Magistrate to investigate the case on the merits.