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Criminal Revision No. 516 of 1958, decided on 6th October 1959.

(a) Penal Code (XLV of 1860), S. 160‑Affray‑ Passive sub mission to beating by one side not affray

In re : Ramakudumban A I R 1950 Mad. 408 rel.

(b) Criminal Procedure Code (V of 1898), S. 203 (2)‑--Dismissal of case under one section of Penal Code‑Does not warrant dismissal of fresh complaint on same facts for a distinct offence.

Ali Ahmad Khan for Petitioner.

A. H. Najafi for Respondents.

Mufti Nazar Muhammad Advocate, for A. G. for the State.

Date of hearing : 6th October 1959.

This is a petition for revision of the order of Sheikh Muhammad Akbar, Sessions Judge, Gujranwala, dated the 5t11 of April 1958.

2. The facts are that Mst. Walayat Bibi petitioner made a report at the Gujranwala Sadar Police Station to the effect that she had been beaten by her husband's relations. As her injuries were simple, the police refused to register a case and advised her to file a private complaint. At the same time, however, the present respondents were challaned under section 160 P. P. C. but acquitted by the learned Additional District Magistrate, Gujranwala, vide his order dated the 29th of November 1957, the present petitioner being apparently the only witness for the pro secution.

3. After the dismissal of the above case, Mst. Walayat Bibi filed a complaint against the respondents under sections 323/34, 325/ 149/34 and 452, P. P. C. in the Court of Chaudhri Ghulam Rasul, Magistrate 1^st Class, Gujranwala, who dismissed it under, section 203 of the Code of Criminal Procedure on the ground that a complaint on the same facts had been dismissed by the Addi tional District Magistrate and that to allow the petitioner to pursue the matter further would be causing hardship to the respondents, and defeating the ends of justice. A revision petition filed in the Court of the Sessions Judge was also dismissed, but in addition to the reasons given by the learned trial Court, the learned Sessions Judge held :‑

"After having applied my judicial mind to the facts of this case, I am of the opinion that it is a dispute between a married girl and her in‑laws people. Indication for an offence under section 325, P. P. C. is being sought on account of alleged dis location of a bone of a finger. It is cooked‑up affair and on merits the allegations are wrong. Then, Mst. Walayat Bibi has implicated in this case not only her own mother‑in‑law but also the brothers and sister of her husband, dragging in Court thereby the female people from amongst her in‑laws. This was an attempt to put pressure upon all the family of her in‑laws, * * * Even on merits, I do not consider that there is any sufficient ground for ordering further proceedings."

4. The position adopted by the Courts below is erroneous. In the first place, they have failed to appreciate that if the story put forward by the petitioner in her complaint is true, the respondents could not possibly have been convicted at the previous trial of an offence under section 160 P. P. C. The offence in question contains three essential ingredients ; (1) there must be a fight between two or more persons ; (2) the fight must occur in a public place ; anti (3) the public peace must be thereby disturbed, Mst. Walayat Bibi's story, on the other hand, is that she was wantonly attacked by the respondents in the walled courtyard of her house. Accepting this position as correct, it follows that there was no fight, since the expression "fight" implies active parti cipation by two parties. As remarked in In re : Ramakudumban (A I R 1950 Mad. 408): "A war and an affray both require two sides fighting. A Passive submission to beating by the other side will not do." Moreover, even if, for the sake of argument, it be assumed that a fight did occur, Mst. Walayat Bibi's statement is to the effect that it did not occur in a public place. On both the above grounds, therefore, the case under section 160, P. P. C. was bound to fail. The argument of the Courts below that he acquittal of the respondents in the previous case operated as a bar to their subse quent prosecution for the offences alleged by Mst. Walayat Bibi to have been committed is consequently entirely misconceived, and her complaint could not legally be dismissed on that ground.

5. The matter may also be looked at from another point of view. The only provision of law that could operate as a bar to Mst. Walayat Bibi's complaint would be section 403 of the Code of Criminal Procedure. Subsection (1) of that section provides that 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 of the Code. In the present case, section 236 has no application, since it cannot be said that there was any doubt which of several offences of the facts proved would constitute, and section 237 is limited to the case mentioned in section 235. Subsection (1) of section 403 cannot consequently be invoked by the respondents.

6. Subsection (2) of section 403 is to the effect that 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 in the former trial under section 235, sub‑section (1). This subsection, which operates to the disadvantage of the respondents, is, unfortunately for them the one applicable to the facts of this case.

7. Subsections (3), (4) and (5) of section 403 of the Code of Criminal Procedure are irrelevant to the present case, and it follows that the principle of autrefois acquit cannot be availed of by the respondents.

8. For the above reasons, I hold that the complaint of the petitioner was wrongly dismissed under section 203 of the Code of Criminal Procedure by the trial Court.

9. In addition to approving the argument of the learned Magistrate, the learned Sessions Judge purported to dismiss the revision petition on the ground that even on the merits there was no cause for interference, but it is obvious that there was not sufficient material before the Court to enable it to reach such a conclusion.

10. In the result, I accept the petition, set aside the order of discharge passed by the learned Magistrate, and return the proceed ings to the District Magistrate, Gujranwala with the direction that further proceedings according to law be taken by a Court of competent jurisdiction other than that of Chaudhri Ghulam Rasul, who has, to some extent, expressed his opinion. The Court will, of course, not be bound by the remarks made by Sheikh Muhammad Akbar in his revisional order concerning the merits of the case, and should disregard them.

K. B. A. Petition accepted.

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