Holmwood and Sharfuddin, JJ.
1. We are of opinion that this Rule must be made absolute upon the ground on which it was issued. The learned Magistrate in his explanation has shown either ignorance or neglect of the law as clearly laid down in Section 342. Section 263 does not give him discretion whether he will examine the accused or not. This is governed by Section 342. It gives the accused the right to refuse to say anything if he chooses. But there must be examination in all warrant cases. Therefore, the words 'if any' do not apply to warrant cases. Then again the charge was with intent to commit theft, as alleged by the prosecution in their evidence, and in their evidence they did not aver that there was any other reason for the house-breaking. It was the defence which tried to elicit from the prosecution witnesses that there was some familiarity between the accused and a woman in the complainant's house. It is, therefore, on the defence that the conviction rests and not on the prosecution.
2. There can be no doubt that when the learned Magistrate found that the charge of theft or the charge of house-breaking with a view to commit theft broke down, and it appeared that there was another object, it was his bounden duty to have given the accused notice of that by drawing up a charge clearly stating what it was that he was accused of doing;
3. The trial appears to us to have been vitiated by these errors, and the conviction and sentence are, therefore, set aside. We do not order a retrial because the accused has already been 21 days in jail, and we consider that is sufficient to meet the ends of justice in this case. The petitioner will be discharged from his bail unless he is required to answer to any other charge.