JUDGMENT : R.N. Misra, C.J. - A Police Havildar, attached to the Puruna Bazar Outpost within Bhadrak Police Station, gave a written report that the Petitioners on one side and opposite parties 2 to 4 on the other committed affray at about 9 a.m. on 20-8-1978 Charge sheet was received by the Subdivisional Judicial Magistrate, Bhadrak on 20-11-1978 against all the six persons for an offence u/s 160, I.P.C. and by an order of that date cognizance was taken. The matter was kept pending in the court for almost four years without any substantial progress. On 18-10-1982, the learned Subdivisional Judicial Magistrate made an order to the effect that on going through the evidence of the witnesses examined for the prosecution he found a prima facie case u/s 323, I.P.C. He indicated that the evidence disclosed that one Kisanlal Gupta, opposite party No. 2, was assaulted by the three Petitioners. Out of the two sets of accused persons implicated in the case u/s 160, I.P.C. Kisanlal alone had sustained injuries in his body. It was pointed out to the court on behalf of the Petitioners that cognizance of the offence u/s 323, I.P.C., could not be taken in 1982 after more than four years of the occurrence in view of the limitation provided u/s 468 of the Code of Criminal Procedure, the limitation being one year. Dealing with this contention, the learned Subdivisional Judicial Magistrate indicated: After going through the section. I find the restriction imposed u/s 468, Code of Criminal Procedure is not applicable to such cases because while the court is in seisin of a case as material incriminating accused for different offence is revealed, the court, being in its seisin of the case much prior to the limitation period, has got every power to take cognizance of offence in addition to the accusation made against the accused earlier. The same principle regarding addition and alternation of the charge contemplated u/s 216, Code of Criminal Procedure is also applicable in the instant case. The same principle regarding addition and alternation of the charge contemplated u/s 216, Code of Criminal Procedure is also applicable in the instant case. Accordingly, the limitation cannot be a bar for taking cognizance u/s 323, I.P.C. He overruled the other objections raised and ultimately directed: ...I find that not only two sets of accused persons face trial in a joint trial u/s 160 as well an 323, I.P.C. but also if no trial has taken place u/s 323, I.P.C. and only the accused have faced trial u/s 160, I.P.C., a fresh complaint u/s 323, I.P.C. by one set of accused against other is punishable even after the disposal of the case. In the background of my aforesaid discussion 1 step to a conclusion that taking of cognizance u/s 323, I.P.C. at the stage of trial is permissible under law and it will not cause any prejudice to any accused. Hence, in addition to the accusation u/s 160, I.P.C. as made in the charge sheet. I also take cognizance u/s 323, I.P.C., Recall the witnesses already examined for the purpose of cross-examination by the caused.... This direction is assailed in the revision application. 2. There can be no dispute that if the entire case is before the court, on the basis of evidence which may come before it, a new charge can be framed or a charge already framed can be altered at any stage during the pendency of the case. I am prepared to agree with the learned Magistrate's approach to the matter keeping that aspect in view. Prosecution came with a case of afray, which meant that two or more persons by fighting in a public place had disturbed the public place. The Petitioners on one side and opposite parties 2 to 6 to the other have been reported to have fought. Opposite party No. 2 had not made any complaint to the court of having been assaulted by the Petitioners. It is quite possible that as a result of fighting in a public place, opposite party No. 2 sustained certain injuries while the others did not. The evidence led by the prosecution was in support of the charge of afray and not in regard to assault by the Petitioners on opposite party No. 2. It is quite possible that as a result of fighting in a public place, opposite party No. 2 sustained certain injuries while the others did not. The evidence led by the prosecution was in support of the charge of afray and not in regard to assault by the Petitioners on opposite party No. 2. Merely because the learned Magistrate has found that there have been some injuries on opposite party No. 2, it cannot follow that the Petitioners had not been assaulted. A charge of afray brings in both the sides as accused persons since both the fighting groups have committed the offence. A charge of assault punishable u/s 323, I.P.C. has a prosecutor on one side and the accused persons on the other. The First Information Report which led to the furnishing of the charge-sheet did not relate to the incident of assault but involved the allegation of fighting in a public place leading to disturbance of the public peace. In a case of this type, the approach of the learned Magistrate on the analogy of the Court framing a new charge or altering a charge would not apply. On the other hand, it would be appropriate to look at the matter as if cognizance was being taken of an offence u/s 323, I.P.C. independent of the charge-sheet for the offence u/s 160, Code of Civil Procedure. The observation of the learned Magistrate that even if the case u/s 160, I.P.C. ended either in acquittal or in conviction, a case for the offence u/s 323, I.P.C. would still be maintainable. He is clearly wrong in taking view as he overlooks the limitation provided u/s 468, Code of Criminal Procedure while saying so. This aspect apart, the other objection which had been raised on behalf of the Petitioners has also a bearing. The cases which the learned Magistrate referred to were of a different type. In the present case, it is not the stand of opposite party No. 2 that the event was one-sided and he was beaten up If the case be so, the charge u/s 160, I.P.C. would not be mentionable because there would be no afray and it would be only a case of assault. In the present case, it is not the stand of opposite party No. 2 that the event was one-sided and he was beaten up If the case be so, the charge u/s 160, I.P.C. would not be mentionable because there would be no afray and it would be only a case of assault. Learned Standing Counsel has accepted this analysis and has argued that the order of the learned Subdivisional Judicial Magistrate should be vacated in so far as the taking of cognizance of the offence u/s 323, I.P.C. is concerned. 3. I accept the revision petition, set aside the learned Sub-divisional Judicial Magistrate's order taking cognizance of the offence u/s 323, I.P.C. and direct that the case relating to the charge u/s 160, I.P.C. be concluded quickly. The records be returned immediately. Final Result : Allowed