STATE OF HYDERABAD Vs. BAQUER HUSSAIN

JUDGEMENT

(1.) THIS is a petition for leave to appeal to the Supreme Court under Section 134 (c) of the Constitution of India.

(2.) THE facts leading to this petition are that one Baquer Hussain was charged and convicted under Sections 134, 217, 263, 330/71 and 389/ 71, of the Hyderabad Penal Code. The accused appealed to the High Court and the High Court acquitted him of all the charges. On behalf of the Government this petition is filed for leave to appeal to Supreme Court. Advocate-General argues that this is a fit case in which leave should be granted. In separate but concurrent judgments of the Division Bench it has been held that the accused cannot be convicted for abetment as there was no charge framed against the accused. The Advocate-General contends that this is not according to law. There are several authorities in which it has been held that though the substantive offence is not proved yet if all the Ingredients disclosed in the offence of abetment were substantiated the accused can be convicted of abetment even though there was no charge. In support of this argument he has relied upon Begu v. Emperor 88 Ind Cas 3 (PC); Jananada Charan v. Emperor AIR (16) 1929 Cal 807; Khuman v. Emperor AIR (18) 1931 Oudh 274, Kadira v. Emperor AIR (15) 1928 Cal 466; Ma Thaw v. Emperor 26 Ind Cas 149 (LB); In re, Padmanabha Payi 11 Cri L Jour 49 (Mad); Hira Sah v. Emperor AIR (34) 1947 Pat 350; Provincial Govt. v. Saidu AIR (34) 1947 Nag 113; Debi Prosad v. Emperor AIR (19) 1932 Cal 455. Samuel John v. Emperor AIR (22) 1935 All 935; Provincial Govt. v. Gomaji AIR (31) 1944 Nag 192, 16 Criminal Law Journal 680, Secondly, he argues that the High Court has erred In deciding that there was mis-joinder of charges; and thirdly, the principles enunciated by the Privy Council essential for granting leave are not applicable to this matter as the Privy Council was not a Court of appeal in criminal cases.

(3.) ON behalf of the accused it is contended that the argument as regards the mis-joinder of charges and the question of convicting the accused for abetment without framing a charge are all questions depending upon facts which have not been proved and as such the petitioner is not entitled to any leave. He relies in his support on Taba Singh v. Emperor 48 Bom 515; Easwara-murthi Goundan v. Emperor, AIR (31) 1944 PC 54; and Otto George Gfeller v. The King AIR (30) 1943 PC 211.