J.K. Misra, J.
1. Both the petitioners have been convicted under Section 447, I. P. C. by a FirstClass Magistrate and each has been sentenced to pay a fine of Rs. 30/-. In default of payment of fine, petitioner No. 1 has been sentenced to one month's simple imprisonment whereas the other petitioner has been sentenced to one month's rigorous imprisonment. The petitioners unsuccessfully moved the Sessions Judge in revision against their conviction.
2. Petitioner No. 1 is the father of petitioner No. 2. The father of the complainant and the petitioner No. 1 are agnatic cousins. The complainant's case is that the disputed plot of land was once the property of this father and petitioner No. 1, which they sold away by a registered deed in favour of the complainant's son in early part of 1956, and the complainant, who lived separate from his father, while in possession of the said land, raised a building in one portion, which he let out to another on hire, and raised jute crops over the other portion in 1957; that the petitioners came armed with lathis, entered the jute field and damaged the jute crops. So he filed a complaint under Section 427 and Section 447, I. P. C. Cognizance was taken by the Magistrate of both the offences.
But in course of trial, the learned Magistrate framed a charge only under Section 427 I.P.C., and no separate charge was framed under Section 447, I.P.C. In delivering the judgment, the learned Magistrate proceeded on the assumption as if charges had been framed under both the sections, and while he acquitted the petitioners of the offence under Section 427, I. P. C. on the ground that the damage caused was very slight, he convicted the petitioners of the offence under Section 447, I.P.C. The learned Sessions Judge, in rejecting the revision petition, took the view that the case was covered by Section 238 (1), Cr. P. C.
3. It was sought to be urged before me on the petitioners' side that offences under Sections 427 and 447, I.P.C. were not cognate offences, and so Section 238, Cr. P. C. had no application. He relied on Kanhaiyalal v. Feliram, AIR 1952 Madh B. 15 which related to a case in which charges had been framed under Sections 426 and 379, I.P.C. but in which conviction was ultimately based on Section 447, I.P.C. His Lordship held that the ingredients of mischief and criminal trespass were completely different from each other and hence a person charged with mischief could not be convicted for criminal trespass, because the accused would be prejudiced in making his defence. His Lordship further observed.
'The general principle for the applicability of Sub-section (2) of Section 238 is that the major offence and the minor offence must be cognate offences. Where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other.'
His Lordship did not consider the implication of Sections 535 and 537, Cr. P. C. Incidentally I may observe here that the learned Sessions Judge's view, that Section 238 (1), Cr. P. C. applied to the case, was entirely wrong and at best he could have considered the applicability of Clause (2) of Section 238, Cr. P. C. to the circumstances of the case.
4. The present case was not one in which, while the petitioners had been charged for one offence, they were convicted of another offence, because of the fact that what was ultimately proved constituted the latter offence and not the offence charged for. Though no separate charge had been framed under Section 447, I.P.C., of which cognizance had been taken at the initial stage, in the examination of the petitioners they had been asked to answer, not only to an offence under Section 427, I.P.C., but also to an offence under Section 447, I.P.C. Evidence was led by both parties in respect of both the offences and the petitioners did cross-examine the witnesses on the complainant's side regarding the question of possession by one party or the other. The petitioners were also being defended by lawyers. It was held by their Lordships of the Supreme Court in W. Slaney v. State of M. P., (S) AIR 1956 SC 116:
'Sections 225, 232, 535 and 537 (a) Cr. P. C. between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice. It is substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence.
Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same board principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt.
But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities whether traceable to the charge or to want of one.'
Relying on Atta Mohammad v. Emperor, AIR 1930 PC 57(2), their Lordships of the Supreme Court further observed,
'Where the accused is defended by counsel, it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars.'
Viewed in the light of the above observations of their Lordships of the Supreme Court and the circumstances of the case, to which I have referred to, I would hold that non-framing of a charge under Section 447, I.P.C., of which the petitioners were convicted, has occasioned no failure of justice. Incidentally I may note here that in offence under Section 447 I.P.C., tried independently, requires no framing of a charge, and a charge is only necessary to be framed for such an offence because it was being tried with another offence triable as a warrant case. It was urged by the learned counsel for the petitioners that if a charge would have been there, the petitioners might have possibly taken a plea of bona fide right of dispute; but the petitioners actually led evidence on their side in which they wanted to say that the disputed land was still in their possession and so the contention has no substance.
5. In coming to his decision, the learned Magistrate has partly relied upon the statement of a witness in another case which did not amount to any admission and which was not covered by Sections 32 and 33 of the Evidence Act. So, that piece of evidence was inadmissible. But without that evidence there was ample material to justify the finding of the learned Magistrate about the complainant's possession and growing of jute crops, and the trespass and damage caused by the petitioners. Another point that was urged was that the complainant's father (C. W. 1) should not have been summoned by the Court as a court witness to fill up the lacuna for prosecution.
The learned Magistrate had ample jurisdiction under Section 540, Cr. P. C. to call for any witness at his own initiative, and when the complainant's father was a party to the sale and he be a competent witness about prior and subsequent possession, there was no irregularity in the learned Magistrate's proceeding on that score.
6. I find no substance in the revision petition which is accordingly dismissed.