In Re: Mahankali Sreeramulu and Others

Krishnan, J.—In this case five accused apply in revision to this Court to set aside their convictions by the appellate Magistrate u/s 160

I.P.C. They were originality convicted under Sections 147, 323 I.P.C. by the trying magistrate but on appeal the appellate Magistrate acquitted the

first accused altogether and changed the conviction of these five accused under Sections 147, and 323 I.P.C. into one u/s 160 I.P.C. acquitting

them of the offences which they were originally charged with. It seems quite clear to my mind that the conviction under Sections 147 and 323

I.P.C. cannot be altered into one u/s 160 without a proper charge being framed and the accused tried again on the latter charge. It is not a case

where an accused charged for a major offence is convicted of a minor offence where the major offence is not proved. The offence u/s 1 60'' I.P.C.

is different from those under the sections under which the accused were originally charged, for u/s 160 to establish an offence of affray it must be

shown that the fight took place in a public place and that there was also a disturbance of the public peace. Neither of these facts are in evidence in

this case. The Public Prosecutor has drawn my attention to a case in Sabir Hussain v. Emperor (1921) 19 ALJ 487 in which a learned Judge of the

Allahabad High Court converted a conviction under Sections 147 and 323 I.P.C. into one u/s 160 in revision. But in doing so, he does not seem to

have considered the propriety of altering the conviction in that manner and whether it was right to do so without giving the accused an opportunity

to meet the charge u/s 160. No reasons are given and there is no discussion in the judgment as to whether such alteration could legally be made.

The learned Judge thinking that on the evidence in the case an offence u/s 160 was made out, convicted the accused under that section in revision.

I am unable to follow the precedent that has been so created. I am of opinion that the alteration of the charge under Sections 147 and 323 I.P.C.

into one u/s 160 is not justifiable in this case. The accused must therefore be acquitted of that charge. In the result all the accused succeed in

revision. Their convictions and sentences must be set aside and the fines if paid be refunded.