1. This revision is against the judgment of the appellate Magistrate of Cuttack maintaining the conviction of the petitioners under Section 352, I. P. C. under the following circumstances.
2. On 14-6-1951, a police constable (P. W. 6) went to village Dihapahalo where the parties reside, with a view to serve a notice under Section 144, Cr. p. C., on the petitioners directing them not to enter hi to the disputed house or to interfere in any way with its possession by Chanda Bewa (opposite party). It was alleged that though the notice was shown to the petitioners, they disregarded the order contained in the notice, forcibly dragged out Chanda Bewa from the house and locked it up.
After due enquiry, the Magistrate concerned filed a complaint for the prosecution of the petitioners under Section 188, I. P. C., for disobedience of his order under Section 144, Cr. P. C. That case ended in acquittal on 26-2-53 in the Court of a First; Class Magistrate, Cuttack. Then a complaint was filed by Chanda Bewa against the petitioners for offences under Sections 448, 341 and 352, I.P.C., in respect of the same incident.
A separate complaint case was started on the basis of that complaint and tried by Shri M. N. L. Sarma, Magistrate Second Class, Cuttack. He convicted the petitioners under Ss. 352 and 341, I. p. C. On appeal, however, the appellate Magistrate heldthat the conviction under Section 341, I. P. C. could not stand in view of Section 403(1), Or. P. C., inasmuch as the petitioners could have been validly tried for that offence in the first trial itself, bearing in mind the provisions of Ss. 233 and 237, Cr. P. C.
But he thought that the separate trial and conviction of the petitioners for the offence under Section 352, I. P. C., namely, use of criminal force on Chanda Bewa, was legal and therefore refused to interfere with the conviction though he reduced the sentence of fine to a lesser sum.
3. The main point urged by Mr. K. N. Das on behalf of the petitioners was that the separate trial and conviction of the petitioners for the offence under Section 352, I. P. C., was also hit by Section 403(11, Cr. P. C In support of his contention he relied on 'Manhari Chowdhuri v. Emperor', 1918 Cal 406 (AIR V 5) (A). I am however unable to accept his argument.
4. The first trial was in respect of an offence under Section 188. I. P. C., which is triable as a summons case. The offences under Sections 352 and 341, I. P. C., arc also triable as a summons case. Though in a summons case there is no formal charge, it is now well settled that the accusation made against the accused and intimated to him during his examination under Section 242, Cr. P. C., takes the place of a formal charge. It is also well settled that the principles of Sections 233 to 239, Cr. P. C., apply not only to warrant cases, but also to summons cases. See 'King Emporor v. San Dun', 2 Cri LJ 739 (FB) (B) and 'Emperor V. Amolalc Mulchand', 1933 Nag 368 (AIR V 20) (C).
5. Sub-sections (1) and (2) of Section 403, Cr. P. C., which are relevant for the point under discussion are as follows ;
'(1) 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) 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 235, Sub-section (1).'
Sub-section (1) says that if a person has been once tried for an offence, he shall not be liable to be tried again 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, Cr. P. C., or for which he might have been convicted under Section 237, Cr. P. C.
Sub-section (2) however says that a person acquitted of an offence may afterwards be tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235(1), Cr. P. C. Hence in considering whether Sub-section (1) or Sub-section (2) of Section 403, Cr. P. C. would apply to the present case, we have to see (1) whether the petitioners could have been convicted under Section 352, I. P. C., in the previous trial applying the principles of Sections 236' and 237, Cr. P. C. or else (2) whether they could be validly tried and convicted of the offence under Section 352, I. P. C., in the previous trial itself, by virtue of Section 235(1) Cr. P. C.
6. Section 236, Cr. P. C., says that :
'if a single act or series of acts is of such a nature that it is doubtful which of several offences thefacts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.'
The applicability of this section is therefore limited to those classes of cases where it is doubtful which of several offences, the facts if proved, would constitute. Where however there is no doubt about the offences which those facts would constitute, neither Section 236 nor Section 237, Cr. P. C., has any application.
It is true, in the previous trial also the allegations against the petitioners were to the effect that in disobedience of the order under Section 144, Cr. P. C., they trespassed into the house and forcibly dragged out the woman, but on those allegations there was no doubt as to the offences which were committed by the petitioners. Three distinct offences, namely, (1) disobedience of the order of a public servant under Section 144, Cr. P. C., (2) house trespass, and (3) use of criminal force on a woman were made out on those allegations.
Hence Section 236, Cr. P, C., has absolutely no application. On the other hand, Section 235(1), Cr. P. C., would have clearly applied, because the series of acts which were alleged against them formed part of a transaction in the course of which more than one offence was committed by the same set of persons. It would therefore have been quite legal in the first trial itself to try the petitioners for the offences under Ss. 188, 448 and 352, I. P. C., and pass separate sentences for those offences.
But the Court thought it better to try the petitioners for the offence under Section 188, I.P.C., which however ended in acquittal. As the offence under Section 352, I. p. C., is a distinct offence from the offence of disobeying the order of a public servant, a separate trial for that offence would be permissible in view of the express provision of Sub-section (2) of Section 403, Cr. P. C. Hence I see no illegality in the conviction of the petitioners under Section 352, I. P. C.
7. It was then urged that the appellate Court did not discuss the facts dealing with the question of using criminal force on the woman. But on reading the judgment of the appellate Court, I find that only two questions of law were pressed before that Court and the facts were not seriously that lenged. Hence I am not inclined to interfere in revision, merely because the evidence appearing on the question of using criminal force on the woman was not fully discussed.
8. I however notice that while reducing the sentence of fine to Rs. 20/- for the offence under Section 352, I. P. C., the learned appellate Court has sentenced each of the, petitioners to Rule I. for ten days in default of payment of the fine, whereas the trial Court while imposing the sentence of a fine of Rs. 50/- directed them to undergo S. I. for seven days in default of payment of the fine.
I would, while maintaining the conviction of the petitioners under Section 352, I. P. C. and the sentence of fine of Rs. 20/-, slightly modify the order of the lower appellate Court and direct that in default of payment of the fine, each of the petitioners should undergo S. I. for one week each. In other respects, the appellate Court's order is maintained.