P L D 1954 Baghdad﷓ul﷓Jadid 67 (PLP)

ABDUL RASHID, J.‑Ramzoo respondent was convicted by the Magistrate with section 30 powers at Ahmadpur East of an offence punishable under section 406, P.. P. C. and was sentenced to a fine of Rs. 2,000 or in default to undergo rigorous imprisonment for two years. He appealed to the Sessions Judge of Rahimyarkhan against his conviction and sentence. In the course of arguments,‑ the counsel for the appellant raised a preliminary objection to the effect that the date of commission of the offence as given in the charge was 6th of May, 1951, which did not tally with the facts as alleged by the prosecution and that therefore the appellant was entitled to acquittal. The Appellate Court allowed this objection and setting aside the conviction and sentence of the appellant, remanded the case for fresh trial. From this order of remand the complainant Ch. Alouddin has come up in revision to this Court. I have heard Ch. Farzand Ali for the petitioner and Sheikh Nisar Ahmad on behalf of the respondent. In my opinion the order of remand is not legally correct and must be set aside. In his complaint of 4th June, 1951, and his preliminary examination of the following day Ch. Alouddin has stated in clear terms that a month ago the accused had flatly denied to have received any money in trust from the complainant. Now the trial Court appears to have given the date of 6th May, 1951, or near‑about on the basis of these documents, which was its exact estimation. And even if we take into consideration the calculation of the Appellate Court as 15th of April or 15th of May, 1951, on the basis of the complainant's evidence in the presence of the accused on 15th January, 1952, that also makes no appreciable difference in the exact date of the commission of the offence, as the complainant in his latter statement fixes no precise date of misappropriation, but merely gives an approximate period thereof as 8 or 9 months. I therefore think the trial Court was right in inserting in the charge the date of the offence as 6th May, or there about as no specific date could in view of the material on the record be ascertained by it. And even if we suppose that there was some error in the calculation, it is quite immaterial in the circumstances of the case, as it has not in the least misled the accused in his defence. Section 225, Cr. P. C. provides that no error or omission in the statement of the offence or the particulars required to be stated in the charge is regarded to be material at any stage of the proceedings unless the accused has been misled thereby and it has in fact occasioned a failure of justice, Again section 537, Cr. P. C. provides that no finding, sentence or order in the case shall be reversed or altered under Chapter 27 or on appeal or revision on account of any error, omission or irregularity in a charge, unless it has occasioned a failure of justice. In the present case the examination of the record shows that there was no prejudice caused to the accused as he thoroughly understood the real charge against him, fully cross‑examined the prosecution witnesses and produced large number of witnesses in his defence. Moreover, the answers given by him under section 342, Cr. P. C. Showed that he understood the exact case against him. 1n these circum stances, no failure of justice has been caused and the conviction of the accused remains unaffected by any possible error or irregularity in the charge. In Crown v. Shankar Gopal (A I R 1938 Nag. 445.) which was a case of criminal misappropriation the charge was erroneous in respect of the date and place of payment, but there was nothing in the case to show that the accused had been misled in his defence. It was held that no prejudice having resulted to the accused, the error in the charge was immaterial and could dot effect the legality of the trial. In A I R 1924 Rang. 371 there was a mistake in the charge with regard to the time of the offence, but the accused was not prejudiced thereby. Held the trial could clot be vitiated. Similarly in A I R 1926 Pat. 347 the charge was defective inasmuch as the month and not the exact date of cheating was given therein, but there was no prejudice caused to the accused. The conviction was maintained. In the present case the counsel for the defence has failed to show that any prejudice has been caused to the accused by the alleged error in the charge. Hence the order of remand is quite unjustified and is set aside. The appeal is sent back to the Lower Appellate Court for disposal on merits. A. H. Petition accepted.