KALU MIAN Vs. EMPEROR

JUDGEMENT

(1.) This Rule relates to a conviction and sentence passed upon the accused, one Kalu Mian, under Section 406, I.P.C. The objection which is now taken to the conviction, we are told was not at any time raised before the lower Courts. The charge upon which the accused was tried was: That you, on or about between 15 January 1926 to 15 March 1927, at Madarihat being entrusted with certain property to wit Rs. 600 and 25 cattle, by Charowa Uraon committed criminal breach of trust of same and thereby committed an offence punishable under Section 406, I. P.C., and within my cognizance.

(2.) The charge, it is conceded, is defective. The period mentioned therein during which the offences are said to have been committed is one of 15 months and therefore offends against the provisions of Section 234, Criminal P. C, under which the charges in such a case must be limited to offences committed within the period of 12 months. There is nothing to be found anywhere in the judgments of the lower Courts or, we are told, in the evidence, which would in any way go to] show that the charge in the present case has been framed in any error or by any mistake which could be held to help the complaint so far as the present matter is concerned. That being so the only question is whether it is sound to say, as has been argued, that this is one of those cases in which the defect can be cured by the provisions of Section 537, Criminal P.C. In our opinion it is a matter which is more than a mere irregularity to which the provisions of this section could be held to apply, and therefore the question whether or not it has occasioned a failure of justice, in fact, doe3 not really arise, The defect in the present case particularly mentioned, appears to us to be one on which we must hold that the trial has been vitiated in respect of the complaint, under Section 234, Criminal P.C.

(3.) We have been referred to the case of Hainan Lall V/s. Emperor , where the same principle was laid down and the principle of the case of Subrahmania Ayyar V/s. Emperor [1902] 25 Mad. 61 was held applicable. The matter we think cannot be treated as a mere irregularity to be cured by Section 537. The rule is therefore made absolute and the case is sent back to be reheard on a charge made according to law.