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imperatrix Vs. Baban Khan Valad Mhaskoji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom142
Appellantimperatrix
RespondentBaban Khan Valad Mhaskoji
Excerpt:
the indian penal code (act xlv of 1860), section 217--charge--vagueness in charge. - - he may very well have been prejudiced in his defence by this omission, for we, having carefully perused the proceedings, understood that the gist of the charge was that the accused, a head constable, had allowed stolen property to be returned to the owner in order to hush up the offence; the mere circumstance that evidence was given about the omission to send a report in order to afford a collateral corroboration to the testimony going to prove a criminal breach of duty of another kind, did not, and does not, make the accused liable to punishment for the offence thus incidentally deposed to, but with which he was not clearly and directly charged......we, having carefully perused the proceedings, understood that the gist of the charge was that the accused, a head constable, had allowed stolen property to be returned to the owner in order to hush up the offence; while the government prosecutor now insists that it consisted in the omission of the accused to make a report, under section 415 of the code of criminal procedure, of his having seized the property. we cannot find that, in fact, he had seized it. it appears rather that when it was found he allowed it to be restored to the owner instead of seizing it. that this was a disobedience of a direction of the law--what the direction is, and where it is set forth, has not been shown, as perhaps it might have been, in either court, and on this very account, it would seem, it is now.....
Judgment:

West, J.

1. We think that the first head of the charge in this case did not give to the accused the information which the law intended him to have of the particular offence, expressed circumstantially, to which he was called upon to answer. The descriptions of crimes in the Penal Code must of necessity be expressed in abstract terms, but the very object of a trial is to determine whether particular acts or omissions on the part of an accused fall or do not fall within the rule thus abstractedly stated. Conformably to this principle, all the models of charges in Schedule III to the Code of Procedure contain or imply the setting forth with reasonable particularity of the matters alleged to constitute the offence. Here the accused was charged that he being a public servant * * * knowingly disobeyed the direction of the law as to the way in which he had to conduct himself as such public servant with respect to the property found in an investigation held in a case of theft, etc.;' what the direction was, and what the conduct was, which contravened it, the accused is not informed. He may very well have been prejudiced in his defence by this omission, for we, having carefully perused the proceedings, understood that the gist of the charge was that the accused, a head constable, had allowed stolen property to be returned to the owner in order to hush up the offence; while the Government Prosecutor now insists that it consisted in the omission of the accused to make a report, under Section 415 of the Code of Criminal Procedure, of his having seized the property. We cannot find that, in fact, he had seized it. It appears rather that when it was found he allowed it to be restored to the owner instead of seizing it. That this was a disobedience of a direction of the law--what the direction is, and where it is set forth, has not been shown, as perhaps it might have been, in either Court, and on this very account, it would seem, it is now contended that the conduct consisted in not sending a report. But the least that can fairly be allowed in favour of one criminally convicted is, that when a charge has been expressed in vague terms, the prosecution should be limited to the particular sense in which these terms have been understood in the actual trial. The mere circumstance that evidence was given about the omission to send a report in order to afford a collateral corroboration to the testimony going to prove a criminal breach of duty of another kind, did not, and does not, make the accused liable to punishment for the offence thus incidentally deposed to, but with which he was not clearly and directly charged.

2. We, therefore, reverse the conviction and sentence on the first head of the charge, confirming those on the second head.


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