P L D 1954 Dacca 66 (PLP)

The defence, in short, was that the petitioner was merely the owner and majhi of the sampan, generally used as a cargo boat for carrying goods. The only ground on which this Rule was issued is ground No. 1 which is in the following terms " For that having regard to the fact that an appealable sentence was passed in the case the trial has been rendered invalid by the fact that no charge was framed in the case." When this matter came up before me on the 20th of December, 1951, 1 directed the Crown to appear. Mr. Mofakher has appeared on behalf of the Crown and Mr. Talukdar in support of the petitioner. Mr. Talukdar has mainly attacked the finding on the ground that the case has been tried summarily. He contends that it being a warrant case, a formal charge should have been framed indicating precisely the offence which the petitioner was alleged to have committed. He referred to section 262 of the Criminal Procedure Code which provides that except as thereinafter mentioned the procedure prescribed for summons. cases should be followed in summon cases, and the procedure prescribed for warrant cases should be followed in warrant cases. He then referred to section 263 which constitutes an exception. Under that section, in cases where no appeal lies, the Magistrate need not record the evidence of the witnesses or frame a formal charge, but must enter certain particulars referred to in the clauses mentioned in that section. On a reference to the record, Mr. Talukdar further contends that the learned trying Magistrate adopted the procedure laid down in section 264 of the Criminal Procedure Code. In other words he contends that the judgment was an appealable one and the judgment to be recorded in appealable cases must contain the particulars mentioned in section 263 and something more namely, the substance of the evidence on which the conviction was based. He, therefore, urges that section 264 applies to every case tried summarily by a Magistrate in which an appeal lies. He consequently contends that there is no express dispensation of the necessity of framing a formal charge such as there is in section

263. This omission to frame a formal charge is said to have vitiated the whole trial. Reliance was placed in support of his argument on the case of Natabar Khan v. The King Emperor (27 C W N 923.), and the case of Amaresh Chandra v. Emperor (A I R 1948 Cal. 110.). Mr. Mofakher who has appeared for the Crown repels this argument of Mr. Talukdar by contending that the language employed in section 264 impliedly excludes the necessity for recording evidence or the framing of a formal charge. He has relied on the case of Madhab Chandra Saha v. Emperor (I L R 53 Cal. 738.), and the case of Kalu Bepari v. Emperor (26 C L J 1334.). where the correctness of the ruling in Natabar Khan v. The King‑Emperer (supra) was doubted. Mr. Mofakher has also relied on the ruling in the case of Siri Lail Ram Kanshi Ram and others v. The Crown (51 C L J 1326.), which, in my opinion, is a judgment which com pletely answers the contention of Mr. Talukdar. The learned judge Das C. J., of the East Punjab High Court in the above case of Siri Lall Ram Kanshi Ram and others v. The Crown, (supra) has expressed himself as follows :‑ I find myself in agreement with the views expressed by Duval J with which Suhrawardy J agreed. This view is also in accord with the decision of Page C. J., in King Emperor v. Maung ho Saw (13 Rang. 225 A I R (22) 1935 Rang. 106‑36 C L J 892.). To the same effect is the decision of Harrison J. in Emperor v. Salig Ram (7 Lab. 303‑A I R (13) 1926 Lab. 301‑27 C L J 639.), where the decision in Natabur Khan v. The King‑Emperor (supra), was definitely dissented from. The case of Amaresh Chandra v. Emperor (supra), relied on by learned Counsel for the petitioners does not appear to me to be helpful because, apart from the bare statement that it is necessary that the accused should be charged, there is no reason given in this decision in support of that statement. In any case, the recording of the particulars under clause (f) of section 263 which is also necessary under section 264, clearly informs the accused of the charge against him. For reasons stated above, I do not find myself in agreement with the views expressed in the two Calcutta cases relied on by the learned Counsel for the petitioners and I prefer to follow the latter Calcutta decision and the Rangoon and Lahore decisions I have already mentioned. In any case, the failure to frame a formal charge has not, in my judgment, caused any hardship or failure of justice because I find from the register the judgment that the accused were fully aware of the charge, namely, that they were exporting food grains from the Province of East Punjab to the Province of Delhi In these circumstances the failure to frame a formal charge even if it were necessary is easily cured under section 535 or section 537, Criminal Procedure Code. With these observations, I respectfully agree as they are on all fours with the facts of the present case. If petitioners in those cases were put up for trial for having committed an offence under section 7, Essential Supplies (Temporary Powers) Act, XXIV ‑ of 1946, each of the petitioners in that case was tried summarily under Chapter XXII of the Criminal Procedure Code and was convicted by the trying Magistrate and sentenced to rigorous imprisonment for three months, the foodgrains with respect to which the offence was committed were forfeited to the Crown. In the present case also it appears that the peti tioner was charged under the provisions of the Essential Supplies (The Temporary Powers) Act, XXIV of 1946 and was convicted and the rice was forfeited to the State and the sale proceeds were credited to the Government Treasury. In my opinion, the contention of Mr. Talukdar is devoid of all force. S4 far as section 263 is concerned, it only applies to cases tried summarily where no appeal lies. Section 264 applies to cases tried summarily in which an appeal lies. Although in the case of Madhab Chandra Saha (supra) a doubt was express ed by their Lordships whether the framing of a charge was com pulsory in a summary trial even though the sentences passed were appealable, it was held that under section 535 of the Criminal Procedure Code mere omission or irregularity in the charge would not justify a reversal of an order of the lower Court unless in the opinion of the Court of appeal or revision, a failure of justice had in fact been occasioned thereby. It seems to me that in this case it was perfectly clear to the accused from the evidence on record what case he bad to meet I cannot, therefore, be persuaded to hold that the mere failure to frame a charge has vitiated the trial. For the reasons stated above there is no substance in this application and the rule is accordingly discharged. A. H. Rule discharged.