Emperor v. Fattu Ane Others

Sir John Stanley, C.J:— This is an appeal against the conviction of the appellants on a charge of dacoity under section 395 of the Indian Penal Code and in respect to one of the appellants also under section 397 of the Code, The learned Sessions Judge in framing the charges against the accused appears to have altogether disregarded the provisions of section 233 of the Code of Criminal Procedure. That section expressly provides that for every distinct offence of which any person is accused there shall be a separate charge. The case for the prosecution is that the appellants with others looted the houses of three persons, if not four, on the night of the 12th of December, 1902, namely, the houses of Mussammat Bhaggu and Musammat Badamo and also the house of Timbhu and Nanhe.

2. The charge framed againstall the accused was that they on or about the 12th of December, at Dabri “committed dacoity, and therefore committed an offence punishable under section 395 of the Indian Penal Code.” As regards one of the appellants, Guddi, a charge under section 397 was added. The offences proved against the appellants were distinct offences, in respect of which there should have been separate charges. It may be said that the offences being committed on one and the same night formed one series of acts, so connected together as to form the same transaction, and therefore the accused were properly charged with and tried at one trial for each offence under the provisions of section 235 of the Criminal Procedure Code. Even if this be so, the Court should have complied with the provisions of section 233 and framed a separate charge for each offence. Their Lordships of the Privy Council have held in the recent case of Subrahmania Ayyar v. King-Emperor (1) that the disregard of the express provisions of sections 233 and 234 of the Code of Criminal Procedure was not a mere irregularity, such as could be remedied by section 537, but was altogether illegal. The ruling of a Full Bench of the Calcutta High Court in the matter of Abdul Rahman (2) was dissented from. Having regard to this ruling of their Lordships, the Court is bound to set aside the convictions and sentences passed on the appellants and to direct a retrial. Accordingly the appeals are allowed and the convictions and sentences of the appellants Fattu, Guddi and Kesri are set aside, and their retrial by the learned Sessions Judge in accordance with law is directed.