1. In this case accused Nos. 2, 3, 4, 5 and 7 were convicted by the Second Class Magistrate of an offence under Section 147 of the Penal Code, i.e., of rioting. It is unnecessary to go into the evidence for the prosecution which was believed by the Second Class Magistrate who originally tried them. The common object alleged was of getting P.W. No. 1, Udayar Pusari, to execute a certain re-conveyance of lands. On appeal to the First Class Sub-Divisional Magistrate, he agreed with the lower Court as to the credibility of the prosecution evidence bat altered the convictions into convictions under Section 352, i.e., assault, as against accused Nos. 4, 5 and 7. Accused Nos. 2 and 3 were convicted of abetment of assault under Sections 352 and 114, Indian Penal Code.
2. With regard to accused Nos. 2 and 3 their case can be dealt with at once. The conviction of the abetment of assault on a charge under petition 147, Indian Penal Code, clearly cannot stand, and if authority is wanted, it is to be found in the case reported in Padmanabha Panjikannaya v. Emperor 5 Ind. Cas. 145. With regard to the second conviction against accused No. 7, i.e., wrongful restraint, Mr. Kesava Iyengar, who has delivered a very learned argument for the accused, had little to say and I think that the conviction can stand.
3. The real point of this revision petition is as concerns the convictions of accused Nos. 4, 5 and 7 under Section 352, they having been charged under Section 147. The learned Vakil admits that the point is a technical one and is purely one of law and I have to decide whether such a conviction is illegal, and, if so, I must interfere, Now, several cases have been sited but they are, many of them, cases on Section 323, i.e., hurt. It is contended that Section 238 of the Criminal Procedure Code does not apply to a case of this kind. In other words, that assault is not a minor offence to rioting. Reliance is placed on a judgment of the Calcutta High Court in Kanta Neya v. Emperor 9 Ind. Cas. 455 which was, as a matter of fact, a case of Sections 147 and 323. The passage which has caused me some perplexity in the judgment is as follows 'It cannot be said that any minor offence is included in Section 147, The use of criminal force is a necessary ingredient in that offence but any particular kind of voluntary use of such criminal force may and should be separately charged, etc.' I think the word 'any' must be taken as equivalent to 'every kind' of minor offence. I do not think that the learned Judges meant to lay down that there could be no minor offense under Section 147 at all and this view finds support in a case reported in Sabir Husain v. Emperor 63 Ind. Cas. 157 . But that does not dispose of the difficulty. The question is, is the second part of the sentence quoted above applicable to any particular kind of voluntary use, etc.?
4. Now, rioting--section 146 is an intensification of an unlawful assembly Section 141 and the common objects enumerated in 141, (No. 5) is by means of criminal force or show of criminal force to compel any person to do what he is not legally bound to do and, Section 350 is the definition of criminal force. Section 351 is the definition of assault, of which criminal force is undoubtedly an ingredient, Mr. Kesava Iyangar has ingeniously attempted to persuade me that criminal force in Sections 141 and 146 must be essentially different from the criminal force in Sections 350 to 352. He says that in Section 146 the force or violence used by an unlawful assembly is of indeterminable character, i.e., not directed against any particular person as long as it is enough to cause--or to cause a threat of--a disturbance of public tranquillity that will bring it within Section 146. But he says that in order to establish an offence against Section 352, the general or indeterminate force in 146 is not sufficient and a specific charge of using that criminal force as against a determinate person is imperative, There are cases, as I have pointed out above, which were cited to me with regard to Sections 147 and 323 though we have a doubt expressed by Napier, J. in Mongalu Aorodhono Hathi, In re 18 Cr. L.J. 860 as to whether Section 323 is not a minor offence under Section 147. I think there is no doubt that criminal force being an element of the offence of 146, it must be taken to be capable of carrying a conviction under Section 352. I am not satisfied that a different mens rea is necessary in 146 as contrasted with Section 352. In any case, I am inclined to think that this is an instance in which Section 535 of the Criminal Procedure Code may fairly be brought into play. The whole of the defence evidence was let in in the Court of the first instance and was disbelieved. It was also disbelieved in the lower Appellate Court. Under these circumstances, I am unable to say that the convictions of accused Nos. 4, 5 and 7 are illegal and, in my view, these convictions must be confirmed and the criminal revision petition dismissed with regard to accused Nos. 2 and 3, their convictions must be quashed and the fines, if levied, refunded. M.C.P.