Mitter and Beverley, JJ.
1. In this case the record was sent for in order to ascertain whether the conviction and sentence under Section 353, as well as that under Section 147 of the Indian Penal Code can be sustained.
2. It is contended before us that, inasmuch as by its definition in Section 146 of the Indian Penal Code the offence of rioting involves the use of force or violence, the accused cannot be separately convicted and sentenced for the use of the same force under Section 353.
3. The facts, as found by both the lower Courts, are that one Ramdoyal Dey, a Civil Court peon, accompanied by Abbas Mirdha and Lal Mahmood, went to arrest one Kashi Chandra Bhattacharjee; that the process was resisted by the accused, and that both the peon and Abbas Mirdah were assaulted in the struggle that ensued.
4. The four accused were convicted under Sections 147 and 353 of the Indian Penal Code, and sentenced to a separate punishment under each section. Soshi Bhusan Bhattacharjee has also been convicted and sentenced under Section 324 of the Indian Penal Code, for the assault committed on Abbas.
5. It having been found by the lower Courts that force was used both to the peon and also to Abbas, it seems clear that the force used to either by any member of the unlawful assembly would suffice to constitute the offence of rioting. It follows that the offence of rioting was completed by the assault on Abbas, and that the assault on the peon was a further offence under the first sub-section of Section 235 of the Code of Criminal Procedure.
6. But the matter has been argued before us on the assumption that it was the force used towards the peon that constituted or completed the offence of rioting, and that the accused cannot fairly be convicted and sentenced under another section for the use of the same force.
7. We think that this view of the law is wrong, and that even if Abbas had not been assaulted, the conviction and sentences passed for the assault on the peon were legal and must be upheld. Sub-section 3 of the section in question (235 of the Code of Criminal Procedure) runs as follows: 'If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined, or for any offence constituted by any one or more of such acts.'
8. In the present case we have acts separately constituting offences under Sections 143 and 353 of the Indian Penal Code, and when combined constituting an offence under Section 147 of the Indian Penal Code. Under the sub-section quoted, therefore, the accused might be charged with and tried at one trial for the offence under Section 147, for that under Section 143, or for that under Section 353. It follows that they might also be separately convicted and sentenced for each offence.
9. Section 235, however, goes on to say that 'nothing in this section shall affect the Indian Penal Code, Section 71 ;' and turning to that section as amended by Act VIII of 1882, we find it laid down that in cases (such as that before us) falling under Sub-section (3) of Section 235 of the Code of Criminal Procedure, 'the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.'
10. Now the aggregate punishment actually awarded under Sections 147 and 353 of the Indian Penal Code is eight months' imprisonment only, whereas the Deputy Magistrate might have awarded two years' imprisonment under Section 147 alone.
11. There is, therefore, nothing illegal in the sentences passed.