Bijjoy Chand Potra vs The State

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 30 of 1951

Decision Date: 14 December 1951

Coram: Saiyid Fazal Ali, Vivian Bose

In the matter of Bijjoy Chand Potra versus The State, the Supreme Court of India delivered its judgment on the fourteenth day of December, 1951. The judgment was authored by Justice Saiyid Fazal Ali, with the bench comprising Justice Saiyid Fazal Ali and Justice Vivian Bose. The petitioner in the appeal was Bijjoy Chand Potra and the respondent was the State. The decision is reported in the 1952 volume of the All India Reporter at page 105 and in the 1952 volume of the Supreme Court Reporter at page 202. The case involved provisions of the Criminal Procedure Code, Act V of 1898, specifically sections 237 and 342, as well as sections 307 and 326 of the Indian Penal Code, enacted in 1860.

The headnote of the reported judgment states that the appellant, who had caused serious injuries to another individual, was initially charged under section 307 of the Indian Penal Code. However, the jury returned a verdict of guilt under section 326 of the Penal Code, and the Sessions Judge, accepting that verdict, convicted the appellant under section 326. It was argued before the Court that the conviction was unlawful because the offence under section 326 was not a minor offence when compared with the offence under section 307. The Court held that, on the facts, the Sessions Judge was entitled to frame the charge alternatively under sections 307 and 326, thereby bringing the case within the ambit of section 237 of the Criminal Procedure Code. Consequently, the conviction under section 326 was deemed proper even though a specific charge under that section had not been formally framed. The Court applied the precedent set in Begu v. King Emperor (52 I.A. 191). Regarding section 342 of the Criminal Procedure Code, the Court observed that a conviction may be set aside for non-compliance with the provision only if the accused demonstrates that the failure to be fully examined, as mandated by the section, has caused material prejudice to him, not merely that such an examination was incomplete.

The criminal appeal, numbered 30 of 1951, originated from the judgment and order of the High Court of Calcutta delivered by Chief Justice Harries and Justice Lahiri on the fifteenth day of June, 1950, in criminal appeal number 71 of 1950 and revision number 295 of 1950. Counsel for the appellant was identified as S.N. Mukherjee, while counsel for the respondent was recorded as B. Sen. The judgment of the Supreme Court was pronounced by Justice Fazal Ali on the fourteenth day of December, 1951. The appeal challenged the decision of the Calcutta High Court, which had affirmed the order of the Sessions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and imposing a sentence of three years of rigorous imprisonment.

The prosecution case, as summarized in the judgment, stated that the appellant and the injured party, Kurnad Patra, were first cousins residing in the village of Andria, their houses situated merely three or four cubits apart. A dispute arose between them concerning a pathway adjoining their houses that led to a tank, and this dispute escalated into a quarrel on the eleventh day of July, 1949. Two days later, on the thirteenth of July, while Kurnad Patra was washing his hands at the brink of the village tank, the appellant approached from behind and inflicted seventeen injuries upon him, resulting in the amputation of two fingers and the extraction of a bone fragment from the appellant’s left thumb. The police were informed, commenced an investigation, and subsequently lodged a charge-sheet against the appellant. The case proceeded before the Sessions Judge and a jury, where the appellant was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilt under section 326, leading the Sessions Judge to convict the appellant under that section.

When the matter was subsequently brought before the High Court on appeal, a rule was issued directing the appellant to show cause why his sentence should not be enhanced. At the final hearing, the rule was discharged, the appellant’s appeal was dismissed, and both the conviction and the original sentence were upheld.

In this case the facts were that the appellant approached the injured person, Kurnad Patra, from behind while Patra was standing at the edge of the village tank and inflicted seventeen injuries. The assault resulted in the amputation of two of Patra’s fingers and the removal of a fragment of bone from his left thumb. After the police were notified they commenced an investigation, prepared a charge-sheet against the appellant and committed him to the Court of Sessions where the trial was conducted before a Sessions Judge and a jury. Although the charge framed by the prosecution was under section 307 of the Indian Penal Code, the jury returned a verdict finding the appellant guilty of an offence punishable under section 326 of the same Code. The Sessions Judge accepted the jury’s finding and pronounced conviction under section 326, imposing the sentence of three years’ rigorous imprisonment as recorded in the lower court’s order. Upon appeal, the High Court issued a rule calling upon the appellant to show cause why his sentence should not be enhanced. At the final hearing the rule was discharged, the appellant’s appeal was dismissed and both his conviction and the original sentence were upheld.

The appellant argued before this Court that, since no formal charge under section 326 had been filed and because the offence under that provision was not a minor one in relation to the charge under section 307, he could not be convicted under section 326. The Court observed that this argument overlooked the provisions of section 237 of the Criminal Procedure Code, which, following section 236, permits an accused to be convicted of a different offence than the one originally charged if the evidence shows that the accused committed that other offence and a charge could have been brought for it. The Court noted that the language of section 237 expressly allows conviction of an offence not originally charged when the facts established that the accused committed it. Applying this provision, the Court held that the Sessions Judge was fully empowered to consider alternative charges of both sections 307 and 326, and therefore the conviction under section 326 was proper even in the absence of a specific charge.

The Court further referred to the decision in Begu v. The King Emperor, where the Privy Council affirmed a conviction under section 201 of the Penal Code despite the charge having been framed under section 302, emphasizing that a conviction may stand where the evidence would support a charge that could have been made. The Privy Council’s observation that “a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made” was quoted to reinforce the applicability of section 237 to the present case. Consequently, the Court concluded that the appellant’s conviction under section 326 was legally sound and did not violate procedural requirements.

In this case the Court observed that there was no doubt that the procedure followed was proper and fully authorized by the Code of Criminal Procedure. The appellant argued that because the High Court had issued a rule for enhancing the sentence, he ought to have been permitted to present arguments on the merits of the case, an opportunity he claimed was denied. However, the appellant’s counsel was unable to demonstrate that even if such arguments on the merits had been allowed, the final decision would have been different. The counsel raised only three specific contentions: first, that several material witnesses had not been examined; second, that the appellant’s case had not been presented to the jury in a fair manner; and third, that the appellant had not been examined properly under section 342 of the Criminal Procedure Code. The Court examined each of these contentions and found them entirely without merit. Regarding the first contention, the counsel pointed out that persons who owned houses to the east, north and north-west of the tank where the alleged occurrence took place had not been examined, and that one Sarat Chandra Ghose, who was present at the accused’s house when it was searched, had also not been examined. The Court held that these arguments carried little weight because there was no evidence that any of those individuals had actually witnessed the occurrence, and because the prosecution’s evidence, if believed, was sufficient to support the conviction. The Sessions Judge, in his charge to the jury, specifically referred to the argument raised by the appellant and informed the jurors that they were free to draw an inference against the prosecution if they thought it appropriate. The Court concluded that the jurors were properly directed on this point and that they evidently found the evidence before them adequate for a conviction. The second contention concerned the appellant’s defence, which was described briefly as follows: Kumad Patra, the injured man, allegedly entered the appellant’s house during a temporary absence, proceeded to the bedroom of his young wife, committed an indecent assault on her, and was assaulted in the process. This narrative was not supported by any evidence and was merely suggested during cross-examination. While referring to this defence version in his charge, the Sessions Judge remarked that, had he been alone, he would not have believed the defence story, but he also warned that the jury was not bound to accept his opinion and should not be influenced by it. The Court therefore found that the appellant’s second contention also lacked merit.

In this case, the Sessions Judge expressed his views on the defence suggestion with some vigor, but he also gave the jurors an appropriate warning that they were not obligated to accept his opinion and should not be influenced by it. The judge’s observations were within the range of commentary that he was entitled to make, and the warning ensured that the jurors retained their independent judgment. The jury rejected the defence version, and there is no doubt that, based on the material recorded in the proceedings, any court of fact would have reached the same conclusion.

The final contention raised by counsel for the appellant was that the appellant had not been examined as required by section 342 of the Criminal Procedure Code. The record shows that after the prosecution had finished presenting its evidence, the Sessions Judge asked the appellant three separate questions. First, the judge asked the appellant to state his defence in response to the evidence presented against him. Second, the judge referred to the dispute concerning the pathway and inquired whether the appellant had inflicted injuries on Kumad Patra. Third, the judge asked whether the appellant intended to adduce any evidence. Since the facts of the case were straightforward and the issues simple, the Court found it difficult to conclude that the examination of the appellant was inadequate in these circumstances.

The Court held that to succeed on a claim of insufficient examination under section 342, the accused must not only demonstrate that the examination was incomplete but also that such incompleteness caused material prejudice. In the present matter, the point of alleged inadequate examination had not been raised in the appellant’s grounds of appeal before the High Court, nor did it appear in the grounds of appeal or the statement of case filed in this Court. No allegation or evidence was presented to show that the appellant suffered any prejudice as a result of the questioning. Having reviewed the Sessions Judge’s charge to the jury, the Court found it to be fair and comprehensive, and no material was found that would justify overturning the jury’s verdict.

Accordingly, the Court dismissed the appeal. Counsel for the appellant was noted, and counsel for the respondent was likewise identified.