1. The petitioners, five in number have been convicted under Section 323, Penal Code and sentenced to pay varying fines. They were all put on trial for having committed the offence of rioting under Section 147, Penal Code and were convicted by the trial Court of the offence, in addition to their conviction under Section 323, Penal Code. The appellate Court, however, acquitted the petitioners of the charge under Section 147, Penal Code and affirmed the conviction only under Section 323, Penal Code. All the five petitioners have been sentenced to pay a fine of Rs. 40/- each, for each of the assault said to have been made on P. Ws. 1, 2 and 3.
2. The case against them is that they committed an assault on P. W. 1, the complainant. In addition, petitioners Loka, Nanda and Gandhi have been convicted for assaulting P. W. 2 and sentenced each to pay a fine of Rs. 40/-. Petitioner Nanda is further convicted under Section 323, Penal Code for having assaulted P. W. 3 and sentenced to pay a fine of Rs. 40/-.
3. In revision two points have been urged. Firstly that the Sub-divisional Magistrate, after having taken cognizance of the offence under Section 190 (1) (b), Criminal P. C., was not right in ignoring the report of the Police Officer inasmuch as it contained statements alleged to have been made by the complainant and his witnesses. It is pointed out that those statements were at variance with the statements made later in the Court. The order sheet discloses that the complainant filed a petition of complaint before the Magistrate in charge who, without examining the complainant, sent it on to the Police for enquiry and report, presumably under Section 202, Criminal P, C. The case was put up before the Sub-divisional Magistrate who, on receipt of the Police report, directed that cognizance should be taken under Section 190 (1) (b), Criminal P. C. The question that has now been agitated before me is whether the report of the Police can be deemed to be a 'Police report' within the meaning of Sub-clause (b) of Sub-section (1) of Section 190 of the Code. No charge sheet having been filed by the Police, a mere recommending the issue of summons by a Police officer is, it is contended; not a police report. But the authorities on the question go to show that any report from a Police Officer would be enough to give jurisdiction to the Magistrate to take cognizance of an offence under Sub-clause (b) of Section 190 (1). That being so, the petitioners can legitimately complain that that report would be a part of the record which could be availed of by them and used by them, if necessary, for contradicting the witnesses examined for the prosecution. But that would of course not constitute a statement under Section 162, though it would be used as an admission made by the complainant or his witnesses if they were confronted with such a statement or its genuineness had been otherwise proved in the case. The petitioners have not done anything of the kind in this case. But having regard to the orders passed from time to time and, as has been pointed out by the learned counsel for the opposite party, the Magistrate really took cognizance under Section 190, Sub-section (1), Clause (a). The criminal law was set in motion by the complainant, on presentation of a complaint in writing setting out the facts against the accused. This was sent to the Police Officer for enquiry, & report under Section 202 and not for investigation and stating of a case against the accused. The mistake committed by the Magistrate, however, is that he did not examine the complainant on oath when the complaint was presented before him. It is said that this omission constitutes an illegality which would vitiate the trial. On this point, however, the learned counsel for the petitioners was not able to cite any authority in support of this argument. On the other hand, there is a Full Bench decision of the Pama High Court reported in -- 'Bharat Kishore Lal v. Judhistir Modak', 10 Pat LT 779, which lays down that the omission to examine the complainant on solemn affirmation is only regularity and does not vitiate the trial. I in, therefore, satisfied that in this case coglizance was taken under Section 190, Sub-section (1), Clause (a) and that the Magistrate acted under awrong impression when he noted that he was taking cognizance under Section 190 (1) (b). I am also satisfied that the non-examination of thecomplainant has not in any way vitiated the trial.
4. Secondly, on merits, it is urged that the petitioners having been acquitted of the charge under Section 147, Penal Code their conviction under Section 323, Penal Code in so far as the assault on P. W. 1 is concerned is not sustainable. I find that two separate charges had been framed against the accused one under Section 147 and another under Section 323 for assault on P. W. 1. The evidence shows that the petitioners Api Samal, Loka Samal, and Punai Samal were specifically mentioned as having assaulted P. W. 1 while the evidence against the other two petitioners is general, implicating them in the assault. The specific evidence against petitioner Api Samal is that he assaulted P. W. 1 on the left shoulder, that against petitioner Loka is that he assaulted P. W. 1 on the left hand, and that against petitioner Punai is that he assaulted P. W. 1 on the back. So far as the assault on the P. W. 1 is concerned there is specific evidence against all these three petitioners and I can see no reason to interfere with their conviction. The other two petitioners, Nanda and Gandhi are entitled to the benefit of doubt and should be acquitted of the charge under Section 323, Penal Code for assault on P. W. 1.
5. The conviction of the petitioners for having assaulted P. Ws. 2 and 3 does not call for any interference as there appears to be enough evidence to justify the conviction.
6. The petitioners, however, are said to belong to a poor class of persons and I would, therefore, reduce the sentences of fine imposed on them from Rs. 40/- to Rs. 20/- in respect of each of the petitioners, with respect to each of the charges proved against them, in the light of the observations made above. The fines, if already paid in excess of the orders now made, shall be refunded.
7. Subject to these modifications the revision is dismissed.