STATE Vs. SADHU SINGH

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge, Barnala under Section 438, Criminal P.C. The facts of the case are given in the Sessions Judge's order and need not be recapitulated here. All that is necessary to mention is that the accused was prosecuted on the allegations that he along with a number of other persons went to the house of Kehar Singh and, then got up to the roof of the house and from there fired shots, etc. The principal allegations against the accused, which in the opinion of the trial Magistrate were established by evidence, were mentioned in the charge but the exact Sections under which the accused was charged were Sections 392, 397 and 398. At the conclusion of the case the trial Magistrate thought that only an offence under Section 458 was made out and accordingly he recorded the accused's conviction under that section and sentenced him to 3 years' rigorous imprisonment and line. The learned Judge has pointed out two defects in the proceedings of the trial Magistrate. One is that no questions were put to tire accused under S, 341 Criminal P.C. regarding the main facts that were brought out by the prosecution evidence and second that Sections 392, 397 and 237, Criminal P.C. were not applicable and since the charge against the accused was under Section 398 he could not be convicted under Section 458.

(2.) Secondly, I am not convinced that there is any force in the Sessions Judge's observations that the proceedings in the trial Court were defective. He states that the accused was not questioned under Section 342 relating to an offence under Section 458, I.P.C. This is not correct because I find from the record that one of the questions put to the accused before the charge was whether he went to the house of Kehar Singh armed with a rifle and along with other persons and then ascended his house from where he fired shots. As regards the applicability of Sections 236 and 237, since the facts constituting the offence under Section 458 were definitely mentioned in the charge, in spite of the fact that the charge against the accused was framed only under Sections 392, 397 and 398, Section 236 applied because on the strength of those facts charge under Section 458 could have been framed. From this it follows that at the time of recording conviction the Magistrate was competent to convict the accused under Section 458 instead of Sections 392, 397 and 398. The accused's counsel relies upon - Meher Sheikh V/s. Emperor , 1931 AIR(Cal) 414 but the facts of that case were quite different. The case in point is - Gulab Singh V/s. Emperor , 1935 AIR(All) 458. With these remarks the record of the case is sent back to the Sessions Judge with direction that he should dispose of the case on merits.

(3.) The accused who is present in Court has been directed to appear before the Sessions; Judge, Barnala on 22nd October, 1951.