1. In this case the accused was put on his trial under Section 457 of the Indian Penal Code and tried summarily. The charge against him was brought by one Kuki Bewa who, in her statement of complaint, said:
While I was sleeping in my room Madhab entered my room by opening the door and touched my body. I at once took up a bamboo piece and hit him and shouted. Drawn by my cries there came Pagal and others. The accused ran away bat was seen by Gada and Pagal.2. The Magistrate thereupon proceeded to try the accused summarily under Section 260 of the Criminal Procedure Code, and in the end the petitioner was sentenced to nine weeks' rigorous imprisonment. The conviction and sentence were upheld in the Court below.
3. In this Court this Rule has been obtained on two grounds: (i) that the learned Magistrate was wrong in law in trying the case summarily; and (ii) that the accused was prejudiced by the omission to frame a charge, specially as the intention has not been definitely found by either of the Courts below, and the accused did not get sufficient information of the charge he was to meet in his defence. In respect of the first ground there is no doubt that an offence under Section 457 of the Indian Penal Code can be tried summarily. But it is argued that here there was complaint not only under Section 457 of the Indian Penal Code, but also under Section 354: an offence which cannot be tried summarily. The complaint has been set out above, and it does not show what was the intention of the accused in forcing his way into the hut that night, whether it was to commit theft or simple assault, or an aggravated form of assault, and the learned Sessions Judge has found that there is no evidence as to what was the actual offence which the accused intended to commit; but both the Courts below found that the accused did commit the offence of house trespass by night with latent to commit an offence punishable with imprisonment. I find no reason why the Magistrate should have to assume that an offence under Section 354 was intended or committed. At the time of complaint no such cause of action was alleged. In my opinion, therefore, there was no illegality in trying the case summarily and this ground must fail.
4. As to the second ground, the procedure of the Magistrate was as follows: He recorded the evidence-in-chief of the prosecution witnesses, and after that recorded:
I find it is a case under Section 457 of the Indian Penal Code, first part.5. He then proceeded to cross-examine the witnesses, and took the plea of defence and then examined the defence witnesses. It is urged that it is necessary in summary trials, in which an appeal lies that there should be a formal charge. It appears that summary trials of cases in which an appeal lies are governed by Section 264 of the Criminal Procedure Code. The procedure for the trial is prescribed in Section 262(1):
The procedure in warrant cases shall be the procedure followed in warrant cases, except as hereinafter mentioned.6. Section 261 of the Criminal Procedure Code says that:
in every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall, before passing sentence, record a judgment embodying the substance of the evidence and also the particulars mentioned in Section 263. Such judgment shall be the only record in cases within this section.7. In the present case the Judge has exactly carried out that procedure. He has recorded the particulars set out in Section 263 of the Criminal Procedure Code and has written a judgment. The only point is that he has not framed a formal charge. Now, apart from anything else under Section 535 of the Criminal Procedure Code mere omission or irregularity in the charge will not justify a reversal of an order of the lower Court, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. So, speaking for myself, as it was perfectly clear to the accused from the evidence on the record and the examination-in-chief what case he had to meet, I cannot hold that the mere failure to frame a charge has vitiated the conviction and sentence. But it is urged that in view of an observation in the ruling in the case of Natabar Khan v. King-Emperor : AIR1924Cal63 , it is necessary in an appealable summary trial to frame a charge. In that particular case the Magistrate had before him a man charged under Section 379 without recording evidence, as is necessary in a warrant case: he accepted the plea of guilty and convicted the accused, without taking any evidence on his own plea, and without framing a charge. The learned Judges of this Court set aside the conviction and sentence on two grounds: first stating that there was no exemption from framing a charge in a case tried summarily in which the sentence passed is appealable; and further, as under Section 262 of the Criminal Procedure Code the procedure was that of a warrant case the accused could not be convicted merely on his own plea. As I read Section 264 of of the Criminal Procedure Code I have considerable doubt as to whether there is any provision in law requiring the framing of a charge under Section 264 in a summary trial, whether an appealable sentence is passed or not: for Section 264 states exactly what the record shall consist of, and that is a judgment embodying the substance of the evidence and the particulars set out in Section 263. In Section 263 it will be seen that it is not necessary to record the evidence of witnesses or to frame a formal charge. This case, however, to which I have referred, was also decided on another ground, that is, the absence of any evidence being recorded at all. There is also the provision of Section 535 to which I have also referred. For these reasons I do not hold that, owing to omission to frame a charge, especially when here, at the close of the prosecution evidence-in-chief the Magistrate laid down exactly what was the charge, i.e., an offence under Section 457 of the Indian Penal Code, first part, the trial has been vitiated. I would, therefore, discharge the Rule.
8. I agree.