P L D 1963 Dacca 725 (PLP)

2. The prosecution case was that the four petitioners entered the house of the complainant on a particular night and committed theft of certain articles and some of these articles were recovered from the possession of petitioner No. 1 Muslim Mondal.

3. The defence did not challenge that there was a theft in the house of the complainant on the date alleged but according to them the thieves were not recognised but the accused persons were falsely implicated at the instance of one Makbul with whom they had enmity.

4. Prosecution examined 13 witnesses and on behalf of the accused one defence witness was examined.

5. The learned Magistrate, on a consideration of the evidence, found the accused guilty and convicted them as stated above.

6. The petitioners thereafter preferred an appeal but did not succeed, and hence moved this Court, and obtained the present Rule.

7. Mr. Fazlul Karim, who appears for the petitioners, contends that, as the learned Magistrate passed appeal-able sentences in this case, the failure on his part to frame formal charges against the petitioners has rendered the conviction liable to be set aside. It is pointed out with reference to section 263 of the Code of Criminal Procedure that it is only in cases where no appeal lies that the Magistrate can dispense with the framing of a formal charge. In cases however where appeal-able sentences are passed, the formal framing of the charge cannot be dispensed with. Section 263 provides that in cases where no appeal lies the Magistrate or Bench need not record the evidence of the witnesses or frame a formal charge, but he or they shall enter in such form as the Provincial Government may direct the particulars mentioned in that section. Mr. Fazlul Karim's argument, there fore, is that in cases where appeal-able sentences are passed the provisions of section 264 of the Code of Criminal Procedure apply and the Magistrate cannot dispense with framing of formal charges. I am afraid this argument obviously does not take note of the provisions of subsection (2) of section 264 of the Code of Criminal Procedure which clearly provides that the judgment passed in cases tried summarily but which are appeal-able, the judgment shall be the only record of such cases. Subsection (1) of section 264 provides that in every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall before passing sentence record judgment embodying the substance of the evidence and also the particulars mentioned in section

263. It is, therefore, obvious the judgment and judgment alone shall be the only record and the judgment shall contain only the particulars mentioned in subsection (1) of section 264 in cases tried summarily but where appeal-able sentences are passed. The view that I am taking receives confirmation from what is stated in section 265 of the Code of Criminal Procedure. More over, I find that there are decisions which support this view.

8. In the case of Emperor v. Salig Ram and another (A I R 1926 Lah, 301), it has been held that the language of sections 264 and 265 when read with sections 262 and 263 makes it clear that in no summary trial A whether it be appeal-able or non‑appeal-able, need a formal charge in writing be framed. Section 264 (2) especially when read with the opening words of section 265, makes it clear that the judgment and judgment alone, embodying as it does, the substance of the evidence and the particulars mentioned in section 263 is the self-contained record of the case, and apart from this record, there is no other, and what is more there is no document, which can be defined or described as a portion of a record. The contrary view taken in the case of Natabar Khan v. The King‑Emperor (27 C W N 923) obviously has not taken note of the provisions of subsection (2) of section

264. The learned Advocate appearing for the petitioners states today that this decision of the Calcutta High Court has subsequently been dissented from by another Division Bench of the Calcutta High Court later. The decision is reported in 27 Cr. L J 1295. I therefore find no substance in this contention of Mr. Fazlul Karim.

9. The second contention of Mr. Fazlul Karim is that the conviction of petitioner No. I Muslim Mondal both under sections 380 and 411, P. P. C. cannot be maintained. I find there is considerable force in this contention and Mr. Afzalul Hoque who appears for the State does not dispute this proposition. In that view of the matter, the conviction of the petitioner No. (1) under section 411, P. P. C. cannot be maintained after his conviction under section 380, P. P. C.

10. The third contention raised in this case is that at the trial there was misjoinder of charges. It is pointed out that the charge under section 380 and the charge under section 411 could not be tried together. There was no formal charge and therefore in that view of the matter I do not find any substance in this contention. The learned Magistrate, on a consideration of the evidence, has found the petitioner No. 1 guilty both under sections 380 and 411, P. P. C. as it transpired in evidence that some of the articles stolen were found in his possession. Having come to a finding that the petitioner No. 1 had participated in the theft, it was not correct to convict him both under sections 380 and 411, P. P. C. and I have held accordingly. But it cannot be said that simply because the learned Magistrate convicted the petitioner under both the sections, there was misjoinder of charges in this case. Therefore there is no substance in this contention of Mr. Fazlul Karim.

11. The last contention is that the judgment of the learned Magistrate is not in accordance with the provisions of section 367 of the Code of Criminal Procedure. I am afraid in view of the provisions of section 264 of the Code of Criminal Procedure, the provisions of section 367 cannot apply to a judgment passed under the former section. The learned Magistrate in his judgment has considered the evidence of the witnesses examined. He has found that the complainant on the night of the occurrence recognised the four petitioners inside his but and he told the fact of his recognition to the other witnesses on the very night of the occurrence. He did not accept the defence suggestion that the petitioners were falsely implicated at the instance of Makbul. He has also taken into consideration the evidence of the defence witnesses and he has rejected his evidence. In that view of the matter, it cannot be said that the judgment of the learned Judge is not in accordance with the provisions of subsection (1) of section 264.

12. The result, therefore, is that the conviction of the petitioner No. 1 Muslim Mondal under section 411, P. P. C., and the sentence passed there under are set aside. The conviction and sentence of the petitioners under section 380, P. P. C. are upheld. The conviction under section 457, P. P. C. is also upheld.

13. The Rule is disposed of accordingly. The petitioners who are now on bail will surrender to their bail bonds and serve out the sentences imposed on them. K. B. A. Petition partly allowed.