Shital Mahato and Others vs State of Bihar

B.P. Sinha, J.—This revision is directed against the order of the Assistant Sessions Judge of Monghyr, dated the 17th December, 1965 by which he upheld the conviction and sentence passed against these petitioners under Sections 379/114 of the Indian Penal Code by a Munsif Magistrate of Monghyr. The only point of law that has been raised at the time of argument was that in absence of any charge u/s 379/114 the courts below were wrong in convicting and sentencing these petitioners under that Section.

The prosecution case, was that one Narsingh Mandal, Malik of the complainant, had 24 Bighas of land in his Khas cultivation at Kutlupur Diara. The complainant was his Kamatia. It was alleged that on 5th March, 1964 at about 8 a.m. these petitioners armed with Bhala leading a mob of 100 persons came over the same land and began to uproot Kerao crops grown by Narsingh Mandal. The complainant, Ramrup Mahto, who was then keeping, a watch, protested, whereupon the accused persons i.e. these petitioners assaulted him with fists and slaps. The mob took away the uprooted crops causing a loss of Rs. 600/- to Narsingh Mandal.

The defence was that these petitioners has taken Batai settlement of the 22 bighas of land including the lands from which crops were removed, from Narsingh Maudal in 1367 Fasli and since then they have been coming in cultivating possession of the same. It was alleged that the crops in question had been grown by the accused persons and that they had harvested them peacefully a few days before the alleged date of occurrence. The occurrence itself was denied and it was contended that the case was falsely instituted to put pressure on the accused persons, so that they may give up the possession over the land in question.

The trial court believed the prosecution case that the lands were in possession of Narsingh Mandal and the crops in question were raised by him. It also believed the story of the prosecution case as narrated by the complainant. Consequently the trial court held that though the witnesses had stated that the accused persons themselves did not harvest the crops nor did they take away the same, it was the accused persons who had led the mob and who had assaulted the complainant when he had protested. Accordingly the trial court found the accused persons guilty of offences under Sections 379/114 and 323 of the Indian Penal Code. It also found the accused persons guilty u/s 147 of the Indian Penal Code for forming an unlawful assembly with the common object of committing theft of crops and having used criminal force with that common object. Accordingly the trial court convicted them and sentenced each of them to undergo rigorous imprisonment for 5 months u/s 379/114 of the Indian Penal Code, 1 month u/s 323, and 4 months u/s 147 of the Indian Penal Code with a direction that the first two sentences would run consecutively and the last would run concurrently.

On appeal the conviction and the sentence u/s 323 of the Indian Penal Code were set aside and convictions and sentences under the other two Section s were upheld and with such modification the appeal was dismissed.

It appears that the charges under Sections 379, 147 and 323 were framed against these petitioners. Though the charge was u/s 379, the petitioners were convicted u/s 379/114 of the Indian Penal Code. It has been submitted on behalf of the learned Counsel for the petitioners that this was illegal and the conviction and the sentence are fit to be set aside. No illegality has been pointed out with regard to the conviction u/s 147 of the Indian Penal Code. True it is that there should have been a separate charge u/s 379/114 of the Indian Penal Code. The question is whether in absence of such charge the order of conviction and sentence passed by the court below can be set aside or whether the irregularity is curable u/s 537 of the Code of Criminal Procedure. A new Sub-clause (b) has been inserted in Section 537 in the year 1956. This Section, therefore, provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the charge including any misjoinder of charges, unless such errors omission or irregularity has in fact occasioned a failure of justice. In this connection Section 535 of the Code of Criminal. Procedure also can be referred to. That Section provides that no finding or sentence pronounced, or passed shall be deemed invalid on the ground that no charge was framed, unless in the opinion of the court of appeal or revision a failure of justice has in fact been occasioned thereby. In this connection. I may refer to a decision of Supreme Court reported in Willie (William) Slaney Vs. The State of Madhya Pradesh, . It has been held "Now, as we have said, Sections 225, 232, 535 and 537 between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The code is emphatic that ''whatever'' the irregularity it is not to be regarded as fatal unless there is prejudice". Therefore, due to mere omission to frame charge u/s 379/114 the order of the court below need not be set aside. It has to be seen if this has occasioned a failure of justice. The complaint from the very beginning was that these petitioners had come leading a mob of about 100 persons, they, uprooted the crops and took them away. The mob was brought with common object to take away the crops. It is for this reason that charges were framed under Sections 147 and 379 of the Indian Penal Code also. So according to the allegations it was these petitioners who had brought the mob with the common object to take away the crops. It was at their instance that the mob had arrived. For an offence u/s 379/114 of the Indian Penal Code the necessary ingredients to be proved are that there was abetment prior to the commission of the offence and that the abettors were present at the time when the offence was committed. All these ingredients were alleged in the complaint and also in the evidence. The petitioners knew what allegations were made against them. On these allegations case u/s 379/114 of the Indian Penal Code has been made out. Therefore it appears that the petitioners were never prejudiced in the defence. They knew the allegations fully well and set up the defence accordingly. They asserted their own possession over the lands in question and denied the occurrence. They would not have done anything more than this had there been reference to Section 114 of the Indian Penal Code in the charge. By the order of conviction u/s 379/114 of the Indian Penal Code, though the charge was u/s 379 of the Indian Penal Code, there has been no failure of justice and as, such the order of conviction and sentence cannot be set aside on that ground. As has been, noted above no: other point of law has been, argued. There is no substance in the petition and it is, therefore, rejected.