(1.) In this case the accused was put on his trial under Section 457 of the Indian Penal Code and tried summarily. The charge against him was brought by one Kuki Bewa who, in her statement of complaint, said: While I was sleeping in my room Madhab entered my room by opening the door and touched my body. I at once took up a bamboo piece and hit him and shouted. Drawn by my cries there came Pagal and others. The accused ran away bat was seen by Gada and Pagal.
(2.) The Magistrate thereupon proceeded to try the accused summarily under Section 260 of the Criminal Procedure Code, and in the end the petitioner was sentenced to nine weeks rigorous imprisonment. The conviction and sentence were upheld in the Court below.
(3.) In this Court this Rule has been obtained on two grounds: (i) that the learned Magistrate was wrong in law in trying the case summarily; and (ii) that the accused was prejudiced by the omission to frame a charge, specially as the intention has not been definitely found by either of the Courts below, and the accused did not get sufficient information of the charge he was to meet in his defence. In respect of the first ground there is no doubt that an offence under Section 457 of the Indian Penal Code can be tried summarily. But it is argued that here there was complaint not only under Section 457 of the Indian Penal Code, but also under Section 354: an offence which cannot be tried summarily. The complaint has been set out above, and it does not show what was the intention of the accused in forcing his way into the hut that night, whether it was to commit theft or simple assault, or an aggravated form of assault, and the learned Sessions Judge has found that there is no evidence as to what was the actual offence which the accused intended to commit; but both the Courts below found that the accused did commit the offence of house trespass by night with latent to commit an offence punishable with imprisonment. I find no reason why the Magistrate should have to assume that an offence under Section 354 was intended or committed. At the time of complaint no such cause of action was alleged. In my opinion, therefore, there was no illegality in trying the case summarily and this ground must fail.