1. This is an application for revision of an appellate order of Pandit Uma Charan Misra, Magistrate, First Class, dismissing an appeal against the order of conviction under Section 290 of the Indian Penal Code passed by the Tahsildar of Mohammadabad against the applicant Raghunath Kandu. The facts of the case are as follows. Applicant Raghunath Kandu was sent up by the Mubarakpur police for trial under Section 34 of the Police Act 5 of 1861. It was complained that he kept logs of wood in a public way, and thereby caused obstruction to the passers-by. It was proved that logs of wood were lying there and they could cause obstruction on market days. The accused admitted that he cut a tamarind tree and some pieces of timber lay on the public way. He, however, pleaded that he could not remove them on account of the prevalence of plague in the village. The accused produced no evidence in his defence.
2. The Tahsildar Magistrate found that the accused's act did not come under Section 34 of the Police Act and it was an offence under Section 290 of the Indian Penal Code. He, therefore, convicted applicant under the latter section and fined him Rs. 10. Applicant preferred an appeal which was dismissed and it was held that under Section 237 of the Criminal P.C. a person charged with one offence can be convicted of another offence. Appellant now comes in revision to this Court and I think this order cannot be upheld.
3. The accused was charged under Section 34 of the Police Act. The accused must have known through his legal advisers that he committed no offence under the Police Act. He, therefore, made no defence. The accused was never told that there was a charge under Section 290 of the Indian Penal Code against him. He had no knowledge of the charge against him until he was convicted and sentenced. It appears from the judgment of the Tahsildar that Section 290 of the Indian Penal Code was introduced by him in his judgment at the very last moment. The accused had no opportunity to meet the charge. He did not even know of it till his conviction. This in my opinion, is not only an irregularity but an illegality which had prejudiced the accused. It is possible the, accused might have been advised to give evidence that there was no public nuisance and the keeping of the wood there caused no public inconvenience had he bean informed that he was charged with committing a public nuisance.
4. Section 227 of the Criminal P.C. deals with alteration of a charge, but it requires that the alteration shall be read and explained to the accused. The accused must know what he is charged with and what offence he has to answer. Section 237 of the Criminal P. C, must be read with Section 227 of the Coda. A Court cannot convict an accused parson of an offence of which he has not been told anything.
5. Then again Section 237 applies only to cases mentioned in Section 236, Criminal P.C., which deals with cases in which an act is of such a nature that it is doubtful which of several offences the facts will constitute. In the present case it was not doubtful whether an offence under Section 34 of the Police Act or under Section 290 of the Indian Penal Code was committed. In my opinion Section 237 cannot apply to this case, and even if it can be said to apply the accused must be told what he is charged with. It is not just to convict a man without telling him his offence.
6. I find a similar case has been recently decided by the Hon'ble High Court in which the same view has been taken. It is the case of Dhum Singh v. Emperor : AIR1925All448 decided by Mr. Justice Banerji on the 9th April 1925. The case has not been reported in any recognizad law report.
7. For the above reasons I allow this application for revision and order the record of this case to be submitted to the Hon'ble High Court with a recommendation that the applicant's conviction may be sat aside and his fine may be refunded. The Magistrate's explanation will also be called for and submitted with the record.
8. This conviction must be set aside and the fine refunded.