Decided on March 12,1945

Eusof Shaikh Appellant
King -Emperor Respondents


Henderson, J. - (1.) THIS is a Rule calling on the District Magistrate of Khulna to show cause why the conviction of the petitioners should not be set aside on ground No. l attached to the petition which is in these terms: "For that Section 403, Criminal F. 0., is a bar to a proceeding under Section 188, Penal Code." Now that the record has arrived it appears that this ground only applies to the case of petitioner 1. At the hearing Mr. Mukherji further contended that, even if the conviction is sustained, the sentences should be set aside in view of the provisions of s, 71, Penal Code.
(2.) THE petitioners have been convicted of an offence punishable under Section 188, Penal Code on the allegation that they reaped the paddy of plot no. 454 in defiance of an order made by the Magistrate under 8. 144, Criminal P. O. They had been previously convicted of theft in connection with the same incident. In order to make the ground good Mr. Mukherjee must bring the case within the terms -of Section 236, Criminal P. 0., which is in these terms: If a single of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged, with having committed all or any of such offences . . . or he may be charged in the alternative with having, committed some one of the said offences,
(3.) THE interpretation of this section is far from easy and has led to a great divergence of judicial opinion. But at any rate it seems clear that there must be an element of doubt. In the present case the act is clearly one. It may be that the prosecution may be unable to establish the ingredients of either of the offences charged. That, however, is not the kind of doubt with which the section deals. Here the offences are quite distinct and the petitioners might be guilty, of be to of them.;

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