Mallu Gope and Another vs Emperor

Rowland, J.—The petitioners were put on their trial along with others on charges of rioting and of being liable u/s 149, I.P.C., constructively for oulpable homicide not amounting to murder of Nirpat Gop.

Specific acts of violence were charged against other accused persons but not against the applicants.

The jury with whose aid the Assistant Sessions Judge of Patna held the trial, found that there had been no rioting; that Bhuan and Jadu had committed the offences of causing hurt and grievous hurt as charged against them, and that Mallu and Hashi, petitioners, were guilty of assaults which had not been formally charged against them. The Assistant Sessions Judge convicted the petitioners u/s 352, I.P.C. and their appeal having been dismissed by the Additional Sessions Judge of Patna, they have moved this Court in revision contending that in the absence of specific charges against them of causing hurt or of assault they could not in trial on a different charge be convicted of this offence. Section 221(1) enacts that every charge shall state the offence with which the accused is charged; and Section 221(4) requires that the section of law against which the offence is said to have been committed shall be mentioned. Section 223 enacts that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239.

The Assistant Sessions Judge appears to have thought that when accused were charged with rioting having the common object to assault they could be convicted of the assault as a minor offence constituted by some only of the particulars of which the offence charged consists, within the meaning of Section 238, Criminal P.C. Now it has been held by the Calcutta High Court in the case of Kanta Neyo v. Emperor [1911] 12 Cri. L.J. 82, that a charge of rioting does not include as a minor offence any specific act of violence by an individual accused so as to authorize u/s 238 a conviction u/s 352, I.P.C. This decision follows the principle of the case of Panchu Das v. Emperor [1907] 34 Cal. 698, referring to a conviction u/s 325 and Dasarath Mandal v. Emperor [1907] 34 Cal. 325. referring to a conviction u/s 323 The Madras decision Muthakanohku Pillai v. Emperor AIR 1922 Mad. 110, was a decision of a single Judge, and I think it must be conceded in this state of the authorities that Section 238 cannot be invoked to support a conviction in circumstances like the present.

Nor can the fact that the offence u/s 352 is punishable with less than sis months'' imprisonment and ordinarily triable as a summons case, avail to support the proposition that no charge is required to be framed in respect of the offence u/s 352 if an accused is tried for it along with other offences under the provisions of Section 235. The decision in Hossein Sardar v. Kalu Sardar [1902] 29 Cal. 481 is against such a view.

In my opinion, however, the procedure followed by the Assistant Sessions Judge is within the provisions of Sections 236 and 237, Criminal P.C. In Section 236 it is enacted that if a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences or may be charged in the alternative with having committed some one of the said offences; while Section 237 provides that if in the case mentioned in Section 236 the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section he may be convicted of the offence which he is shown to have committed though he was not charged with it. These sections, it has been held by their Lordships of the Privy Council, authorize the conviction of an offence u/s 201, I.P.C. of a person who was charged only with murder; AIR 1925 130 (Privy Council) , and I have no doubt that the conviction in the present case falls within the terms of the sections.

In saying this, I would not be understood to say that in every case falling within those sections it is proper to convict without framing a charge or would be proper to uphold a conviction. It is the duty of the Court in all cases to satisfy itself that the accused has not been misled in his defence. Section 232 of the Code says that if any person convicted of an offence has been misled in his defence by the absence of a charge or by an error in the charge a retrial is to be ordered; and I understand this as applying as well to cases in which the conviction was in compliance with the terms of the law as to eases in which the conviction was irregular. In such a case, as was observed in Hossein Sardar v. Kalu Sardar [1902] 29 Cal. 481:

We are called upon to consider in the terms of Section 232, Criminal P.C. whether, by the absence of such a charge the accused was misled in his defence.

It was there held that the accused had in fact been misled and a retrial was ordered. In Sita Ahir v. Emperor [1913] 40 Cal. 168, where on a charge u/s 147 the trial Court had convicted and the appellate Court had acquitted of that charge but convicted u/s 323, it was held that accused was prejudiced by not having an opportunity in the trial Court to answer the charge u/s 323 and a retrial was ordered.

The petitioners before us, however, cannot reasonably urge that they have been either prejudiced or misled in their defence. The common object of the unlawful assembly was stated in the charge to be to assault Nirpat and his companions and the acts of violence alleged which imporbed the further element to constitute rioting were assault on these very persons. The allegation of assault by the petitioners on Nirpat and Gulab was in the first information report and in the evidence of all the eyewitnesses. This allegation along with the whole story of the occurrence was challenged by the defence at the trial. There is nothing to suggest that there was anything else for them to do, had separate charges been framed.

On the facts of this case, therefore, had there even been an irregularity in procedure, I would have been reluctant to interfere as it seems manifest that there could be no prejudice and had there been a defect in procedure it would be cured by Sections 535 and 537 of the Code, prejudice to the accused being the real test as laid down by their Lordships of the Privy Council in AIR 1927 44 (Privy Council) The application fails and is dismissed.

Courtney-Terrell, C. J.

I agree.