1. The appellant was found in the streets quarrelling with one Kaikobad. The police proceeded against him and sent him on a police report under Section 122 of the City of Bombay Police Act. In the course of the trial the learned Magistrate altered the charge to one under Section 352 of the Indian Penal Code and has convicted him to one month's rigorous imprisonment and to be bound over in a sum of Rs. 100 for one year.
2. The only substantial argument for the appellant is that Section 352 of the Indian Penal Code is a non-cognizable offence and therefore in the absence of a complaint from Kaikobad to the Magistrate, the conviction and sentence are wrong.
3. For the Crown the Government Pleader relies on Section 246 of the Code of Criminal Procedure. We are of opinion on the whole, following Dasarath Rai v. Emperor I.L.R. (1909) Cal 869 that Section 246 authorises the Magistrate to follow the course be actually adopted in this case. And it will be observed that even if Kaikobad's complaint, strictly speaking, was necessary, Kaikobad's evidence before the Magistrate leaves no doubt that he desires to proceed against the appellant; and practically it was at Kaikobad's instance that the police took action, Section 529(c) of the Code of Criminal Procedure is also in point. In the result, therefore, the legal objection, in our opinion, fails. The maximum punishment under Section 352 is one of three months and the case under the original charge was also a summons case. We think Section 246 applies even in the absence of a formal complaint from Kaikobad to the Magistrate in the first instance.
4. As regards the sentence, the applicant's youth has been urged before us. There are two previous convictions, one under Section 323 and the other under Section 122 of the City of Bombay Police Act against him Moreover, in the present instance, he appears to have assaulted Kaikobad, because Kaikobad had previously complained to the Police against him. The last consideration is, in our opinion, decisive. An assault on a citizen for appealing to the police needs a deterrent sentence.
5. Accordingly we dismiss the application and confirm the conviction and sentence. The accused who is released on bail must surrender in order to serve the remaining portion of his sentence.
6. I agree.