JHARU SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) This was a Rule calling on the District Magistrate of Howrah to show cause why the conviction and sentence passed on the petitioner should not be set aside on the ground that before convicting under Sections 456, the charge under Sections 457 and 380, Indian Penal Code, should have been amended.

(2.) We think that there can be no doubt on the authorities that the charge under Section 456 of entering the house with an object not specified but which is presumed to be criminal, cannot be sustained when the person is being tried for the specific charge of theft in a dwelling house and house-breaking with intent to commit theft. It is obvious that he must be seriously prejudiced by not knowing what really is the charge against him. Although it is not necessary under Section 453 to specify any particular offence, when such particular offence is specified under Section 457, it is incompetent, in our opinion, to convict of house-breaking with some other intent.

(3.) The question then arises whether there should be a re trial in this case. Considering that the Magistrate in the lower Court thought that the case was one that he was competent to try summarily and, therefore, must have regarded it as a petty case and that the accused has already been one month eight day in jail, we do not think it necessary to order a re trial.