CHANGOUDA FIRGOUDA Vs. EMPEROR

JUDGEMENT

(1.) This appeal raises a point of law which is not entirely free from difficulty. It may be stated as follows:By virtue of Government Notification No. 7087, dated October 1915 published at page 257 of the Bombay Government Gazztte, Part I, for 1915, the offence of murder, punishable under Section 302 of the Indian Penal Code, is tri-able before the Court of Session of Balgaum with the aid of assessors: and the offence of causing grievous hurt by a dangerous weapon punishable under Section 326 of the Indian Penal Code is triable before the same Court by a jury. In the present case the accused stood charged with murder and with no other offence, and the offence was, therefore, triable by the Sessions Court with the aid of assessors. That offense was so tried up to and including the stage of the trial at which the two assessors recorded their opinions. After those opinions had been recorded the Sessions Judge adjourned the case for judgment. He held that the facts were within the scope of Section 326 and not Section 302 and, therefore, convicted the accused of the former offence.

(2.) It is urged in appeal that the conviction is illegal. The argument is that the offence under Section 326 was triable by a jury and not with the aid of assessors, and that, as it was not tried by a jury, the Sessions Judge could not convict the accused under that section. 2. Apart from the question of procedure, it cannot be doubted that the terms of Section 238 of the Code of Criminal Procedure, as interpreted by this High Court, are wide enough to permit a Court to convict an accused person charged with murder of an offence under Section 326 of the Indian Penal Code, if, for instance, title Sessions Judge had in this case held the accused guilty of an offence punishable under Section 304 of the Indian Penal Code, which is also triable with the aid of assessors, the conviction would clearly be permissible by virtue of Section 238 of the Code of Criminal Procedure.

(3.) I am unable to find that the exact point now before us has ever been the subject of judicial consideration. There are many decisions as those cases where the trial has been wrongly held ab incepto either before a jury or with the aid of assessors as the case may be. But those decisions do not assist us here. As I have said the procedure was strictly in accordance with law up to and including the stage when the assessors gave their opinions. Nor is there any specific direction by the Legislature on the point. In enacting Section 536 of the Code of Criminal Procedure the Legislature must be taken to have had in mind cases where the procedure has been wrong throughout. Literally read, Clause (2) of that section covers the present case but here it is obvious that there was no opportunity to take objection and it is, therefore, difficult to hold that the defect (if any) is cured by that clause. 3. But, in my opinion, there is no defect here. The powers given by Section 238 to convict of a minor offence are not controlled by those sections which prescribe the procedure to be followed in trying the offence charged. Here the charge was of murder and the trial was regular in point of procedure. The Court, therefore, before which the trial was held had power to convict of a minor offense. This view finds support in the case of Pattikadan Ummaru v. Emperor 23 M. 243 : 2 Weir 383 & 483. In that case the jury had power to try the offence charged but the conviction was for a minor offence which was not charged and which the jury were not empowered to try. I agree with the remarks of Bhashyam Ayyangar, J., as to the scope of Section 238, with reference to such cases and those remarks are applicable here for in this case the Court had power to try the offer be charged but the conviction was for a minor offence which was not changed and which the Court had no power to try. I agree that Section 238 invests the Court trying the offence (however constituted) with authority to find as an incident to such trial that certain facts only are proved in the trial which facts constitute a minor offence though such minor offence is not triable by the Court as constituted.