IN RE: GUNASINGAM Vs. STATE

JUDGEMENT

(1.) THE revision petitioner seeks to revise his conviction of an offence under Section 323, Indian Penal Code. The Sub -Inspector of Police, Puthukadai, charge -sheeted the petitioner and three others for an offence under Section 290, Indian Penal Code. The learned Special First Class Magistrate, Kuzhitburai, questioned the accused under Section 242, Criminal Procedure Code, as to whether the accused caused public nuisance on 7th December, 1966, at 1 p.m. on the Enayam Keezhkulam Public Road. The accused pleased that they did not commit any offence. After examining P.Ws. 1 to 4 and considering the prosecution exhibits, the learned Special First class Magistrate, convicted the petitioner (and three others were acquitted in the Court below) for an offence under Section 323, Indian Penal Code. From the entire proceedings it emerges clearly that the accused had no notice of the charge for an offence under Section 323, Indian Penal Code. They were charged only for an offence under Section 290, Indian Penal Code. The essential elements of an offence under Section 290, Indian Penal Code, are fundamentally different from the constituent elements of an offence under Section 323, Indian Penal Code. I have no doubt in my mind that the accused was certainly misled by the terms of the charge put to him and the ultimate and eventual conviction was for an offence under Section 323, Indian Penal Code. This is clearly an illegality which vitiates the conviction of the petitioner. The Counsel for the petitioner cited the ruling in Govinda Naidu and Ors., In re, (1959) M.W.N. 85. and the ruling in Nambi and Ramasubbu C.R.P. No. 733 of 1967 (unreported) in support of this proposition of law for quashing the conviction of the petitioner. Kumari O. K. Sridevi cited the authority in Shanmugasundara v. Sadasivam : AIR1968Mad60 . , for the purpose of showing that the conviction is correct. I find no support for such a position from the ruling cited above. That was a case where the Magistrate took cognizance of an offence triable as a summons case but the records and evidence disclose the offence triable as a warrant case. Certainly the Magistrate, if he was otherwise competent from the standpoint of jurisdiction, was quite right to convert summons case into warrant case because he possesses that power. This case has no bearing on the legal position vitiating the conviction of the petitioner. The conviction of the petitioner is quashed. The revision petition is allowed and the fine if paid will be refunded to him.