Das Gupta, J.
1. This Rule was obtained by these petitioners against an order of Mr. G. Kumar, Presidency Magistrate, Calcutta, convicting the petitioners Under Section 116/161, Penal Code, and sentencing them to rigorous imprisonment for six months, each.
2. A preliminary point has been taken by Mr. Talukdar on behalf of the petitioners that the trial has been vitiated by the fact that the charge on which the petitioners were originally tried was altered after arguments of both sides had been heard and immediately before judgment was delivered, on 13th February 1950. The charge originally framed was in these words:
'That you, on or about the 21st day of April 1949, at Calcutta abetted the commission by one Sri Kedar Nath Sett, Civil Supply Officer, a public servant in the department of. Civil Supplies, of an offence Under Section 161, Penal Code, punishable with imprisonment for accepting Rs. 100/-, a gratification other than legal remuneration, as a motive for forbearing to do an official act, viz., to mend the adverse note Ex. I made by the aforesaid officer in his inspection book which said offence was not committed in consequence of the abetment, and thereby committed an offence punishable Under Section 161/116, Penal Code, and within my cognizance ......'
3. From order No. 15, dated 13th February 1950, it appears that at the time of writing judgment, it appeared to the learned Magistrate that the charge framed was not happily worded and so he altered the charge. The order continues in these words:
'As the alteration is purely a technical one, it is not likely to prejudice the accused if the case be proceeded with immediately. So, judgments will be delivered today at 3.30 p.m.'
4. The charge as altered reads thus : 'That you, on the 21st day of April 1949, at Keventer's Milk Shop, New Market, Calcutta, abetted the commission by Sri Kedar Nath Sett, an Inspector of the Civil Supply Department, of an offence Under Section 161, Penal Code, by offering him Ex. 1, a 100 rupee C/N, as illegal gratification, so that he might be induced to change his inspection report dated 24th April 1949 (Ex. 2), and thereby committed ......'
5. It appears that this amended charge was read over and explained to both the accused and that they pleaded not guilty. After this plea of not guilty of the accused, it appears, without any further examination of any witness or any further argument, the learned Magistrate delivered his judgment convicting and sentencing the petitioners as stated above.
6. In his explanation to the Rule, the learned Magistrate has said that the original charge was not at all materially altered by the newly framed charge, that only the wording of the charge was changed and as in his opinion, the accused were not likely to be prejudiced in their defence, he proceeded immediately and delivered the judgment.
7. Section 227, Criminal P. C., authorises any Court to alter or add to any charge at any time before judgment is pronounced and provides that every such alteration or addition shall be read and explained to the accused.
8. Section 228, Criminal P, C., provides that if the alteration or addition is such that proceeding immediately with the trial is not likely to prejudice the accused in his defence, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered charge had been the original charge.
9. Section 229, Criminal P. C., provides that if the altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may direct a new trial.
10. Section 231, Criminal P. C., provides that whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re-call or re-summon and examine with reference to such alteration or addition any witness who may have teen examined and also to call any further witness whom the Court may think to be material.
11. It has to be noticed that while Section 227, Criminal P. C., by itself only requires that every such alteration shall be read and explained to the accused, the learned Magistrate did not merely read and explain to the accused but apparently asked them whether they were guilty and the accused said that they were not guilty of the charge as altered. This plea of guilty or not is taken Under Section 255, Criminal P. C., and after this has been done, the procedure which has to be followed is laid down in Section 256 and in the subsequent sections of the Code of Criminal Procedure.
12. I am prepared to agree with the learned Magistrate that no material alteration was made in the charge by the change which he did effect, but the fact remains that he did take a new plea of the accused and so in spite of the fact that he might have proceeded Under Section 228, Criminal P. C., as if the altered charge was the original charge, he did not so proceed. As soon as he took a new plea of the accused to the charge, he ought to have followed the procedure as laid down in Section 256 and the subsequent sections of the Code of Criminal Procedure. In my opinion, the preliminary point taken should prevail.
13. I would, therefore, set aside the order of convictions and sentences passed upon the accused and remand the case to the learned Magistrate for re-trial from the stage where the accused's plea was taken. The trial should be by some Magistrate other than Mr. G. Kumar.
14. Let the petitioners continue on the same bail.