BIRENDRA CHANDRA DEB Vs. TARANI KANTA DAS,

JUDGEMENT

(1.) THE 3 petitioners were convicted by the First Class Magistrate Kamalpur, under Section 352, I.P.C., and sentenced to pay a fine of Rs. 25/ - each and in default to R. I. for 7 days each. The first petitioner Birendra Chandra Deb was further convicted under Section 379, I.P.C., and sentenced to pay a fine of Rs. 50/ - and in default to R. I. for 2 months. They went in appeal to the Sessions Judge, but the Sessions Judge, refused to interfere. Hence, they have come up in revision.

(2.) THE case arose out of a complaint filed by the respondent on 5 -2 -80 stating that on the said day he had gone to the house of P.W. 2 at about 7 -00 a.m. and taken a loan of Rs. 500/ - and that while he was returning from the said house and. had reached near the house of Birendra Chandra Deb, the first petitioner, the 3 petitioners assaulted him and took away the sum of Rs. 500/ - from him. On the said complaint, the petitioners were summoned under Section 392, I.P.C., and after taking the prosecution evidence a charge under Section 392. I.P.C., was framed against them. After the trial was completed, the Magistrate, however, came to the conclusion that no case of robbery under Section 392 was made out, as the assault was not shown to have been committed in order to commit the theft or in committing the theft, or in carrying away, or attempting to carry away the property obtained by the theft. The Magistrate found from the evidence that there was long, standing enmity between the petitioners and the respondent, that the assault was the result of this enmity and not with a view to commit the theft and that in the course of the assault when Birendra Chaudra Deb found that the respondent had the money with him he incidentally committed the theft. The Magistrate therefore acquitted then of robbery under Section 392 I.P.C. But he convicted the petitioners of assault under Section 352, I.P.C., and convicted Birendra Chandra Deb further for theft under Section 379, I.P.C.

(3.) WHAT was argued in revision was that on the said findings, the petitioners should not have been convicted under Section 352 I.P.C., or the first petitioner under Section 379 I.P.C., without charging them under the said sections and without giving them an opportunity to meet the charges. My attention was drawn to Section 238(1) and (2) Criminal Procedure Code, and it was argued that the offence under Section 379 and Section 352 I.P.C., cannot be said to be minor offences in relation to the offence under Section 392 I.P.C. and hence they should not have been convicted under the said sections applying Section 238(1) and (2) Criminal Procedure Code