In Re: Mahankalu 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,

Indian Penal Code. They were originally convicted under Sections 147, 323, Indian Penal Code, by the Trying Magistrate but on appeal the

Appellate Magistrate acquitted the first accused altogether and changed the conviction of the five accused under Sections 147 and 323, Indian

Penal Code into one u/s 160, Indian Penal Code acquitting them of the offences which they were originally charged with. It seems quite clear to my

mind that the charge under Sections 147 and 323, Indian Penal Code, 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 160, Indian Penal Code, is different from those under the sections under which the accused

were originally charged, for u/s 160 to establish an coffence 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 Husain v. Emperor 63 Ind. Casxs. 157 : 19 A.L.J. 487 : 3 U.P.L.R. (A) 101 : 22 Cr. L.J. 621 in which a learned Judge of the Allahabad

High Court converted a conviction under Sections 147 and 323, Indian Penal Code, 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, Indian Penal Code, 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 fine, if paid, be refunded.