Hossein Sardar vs Kalu Sardar on 5 February, 1902

Calcutta High Court
Hossein Sardar vs Kalu Sardar on 5 February, 1902
Equivalent citations: (1902) ILR 29 Cal 481
Author: P A Stephen
Bench: Prinsep, Stephen


Prinsep and Stephen, JJ.

1. In this case the accused was summoned for offences under Sections 143 and 379 of the Penal Code. A charge was, however, drawn up only for the offence under Section 379, but, nevertheless, the petitioner has been convicted only of an offence under Section 143. A Rule has been granted to consider whether, no charge having been framed under Section 143 and the only charge being under Section 379, the conviction and sentenoe are not bad. The Magistrate in his explanation attempts to support his order on the ground that an offence under Section 143 being triable as a summons case, no charge was necessary. But we think that when a case is being tried as a warrant case and a charge is drawn of a offence, which is triable as a warrant case, if it is intended to proceed against the accused also for an offence which is triable only as a summons case, that offence should form part of the charge. The case of the accused, however, is that no charge has been drawn of the offence of which he has been convicted. We are called upon to consider in the terms of Section 232 of the Code of Criminal Procedure whether, by the absence of such a charge, the accused was misled in his defence. There is every reason to believe that he has been so misled. He was summoned to appear to stand his trial for two offences, and when he was charged only with one of those offences, he would have good reason to suppose that the other offence had been dropped by the Magistrate. In the next place, his examination shows that he was required only to offer an explanation regarding the offence under Section 379. Under such circumstances we think that he was misled in his defence by the error of the Magistrate. We are informed that the petitioner has already undergone a considerable part of the sentence passed on him. Under such circumstances we think that no further proceedings should be taken. The conviction and sentence are set aside.

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