1. This was a Rule calling on the District Magistrate of Howrah to show cause why the conviction and sentence passed on the petitioner should not be set aside on the ground that before convicting under Sections 456, the charge under Sections 457 and 380, Indian Penal Code, should have been amended.
2. We think that there can be no doubt on the authorities that the charge under Section 456 of entering the house with an object not specified but which is presumed to be criminal, cannot be sustained when the person is being tried for the specific charge of theft in a dwelling house and house-breaking with intent to commit theft. It is obvious that he must be seriously prejudiced by not knowing what really is the charge against him. Although it is not necessary under Section 453 to specify any particular offence, when such particular offence is specified under Section 457, it is incompetent, in our opinion, to convict of house-breaking with some other intent.
3. The question then arises whether there should be a re trial in this case. Considering that the Magistrate in the lower Court thought that the case was one that he was competent to try summarily and, therefore, must have regarded it as a petty case and that the accused has already been one month eight day in jail, we do not think it necessary to order a re trial.
4. We would remark, with reference to the explanation of the learned Magistrate, that he is wholly in error in supposing, because the case is tried summarily that a charge under the Penal Code is not necessary. No formal charge need be drawn up, but the accused must be called upon to answer to the particulars of the offence charged, whether the proceedings be summary or otherwise. Section 263 says that the Magistrates need not frame a formal charge but they must specify the offence complained of and that must be, in our opinion, sufficient to give the accused notice of what is charged against him. It cannot be said that in a summary trial, misjoinder of charges can be made without remedy. The same rules of law as apply to charges in warrant cases must apply to the particulars set out in Section 263 in a summary record.
5. The Rule is made absolute. The conviction and sentence are set aside and the petitioner will be released from his bail, unless he is liable to be detained for any other matter.