karnataka judicial academy · cognizance of that offence without the accused being committed to it...

NOVEMBER

2012

Karnataka Judicial Academy

Crescent House, Crescent Road, Bangalore 560 001 Tel . : 2238 2894/96 Fax:2238 2895

Emai l . : d irkjab@gmail .com Www.kjabl r .kar.nic . in

CONTENTS

From the Desk of the

President

Important Amendments

by Parliament

Important amendments

by the Karnataka State

Legislature

Important judgments of

Supreme Court of India

Important judgments of

High Court of Karnataka

Articles

Programmes of Karna-

taka Judicial Academy

Other News

From the Desk of the President

PAGE 2 KARNATAKA JUDICIAL ACADEMY NOVEMBER 2012

KARNATAKA JUDICIAL ACADEMY NOVEMBER 2012

NARCOTIC DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985

(61 OF 1985)

*Section 36-A. Offences triable by Special

Courts-

(1) Notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974),-

(a) all offences under this Act which are pun-ishable with imprisonment for a term of more

than three years shall be triable only by the

Special Court constituted for the area in which the offence has been committed or

where there are more Special Courts than one for such area, by such one of them as may be

specified in this behalf by the Government;

(b) where a person accused of or suspected of

the commission of an offence under this Act is

forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the

Code of Criminal Procedure, 1973, such Mag-

istrate may authorise the detention of such person in such custody as he thinks fit for a

period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magis-

trate and seven days in the whole where such

Magistrate is an Executive Magistrate:

Provided that in cases which are triable by

the Special Court where such Magistrate con-siders-

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of

the period of detention authorised by him,

that the detention of such person is unneces-sary, he shall order such person to be for-

warded to the Special Court having jurisdic-

tion

(c) the Special Court may exercise, in relation

to the person forwarded to it under clause (b), the same power which a Magistrate having

jurisdiction to try a case may exercise under

Section 167 of the Code of Criminal Proce-dure, 1973, in relation to an accused person

in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of po-

lice report of the facts constituting an offence under this Act or upon complaint made by an

officer of the Central Government or a State

Government authorised in this behalf, take cognizance of that offence without the accused

being committed to it for trial.

(2) When trying an offence under this Act, a

Special Court may also try an offence other than an offence under this Act, with which the

accused may, under the Code of Criminal Pro-

cedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be

deemed to affect the special powers of the High Court regarding bail under (Section 439

of the Code of Criminal Procedure, 1973) (2 of

1974), and the High Court may exercise such powers including the power under clause (b)

of sub-section (1) of that section as if the reference to "Magistrate" in that section

included also a reference to a "Special Court"

constituted under (Section 36).

(4) In respect of persons accused of an offence

punishable under Section 19 or Section 24 or Section 27-A or for offences involving commer-

cial quantity the references in sub-section (2)

of Section 167 of the Code of Criminal Pro-cedure, 1973, (2 of 1974) thereof to "ninety

days", where they occur, shall be construed as

reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one

hundred and eighty days, the Special Court

may extend the said period up to one year on the report of the Public Prosecutor indicat-

ing the progress of the investigation and the

specific reasons for the detention of the ac-cused beyond the said period of one hundred

and eighty days.

(5) Notwithstanding anything contained in

the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under

this Act with imprisonment for a term of

not more than three years may be tried summarily.

* Subs. by Act 9 of 2001, sec. 15 (with effect from 2-10-2001).

Important amendments by the Parliament


KARNATAKA JUDICIAL ACADEMY

The Registration Act, 1908 *Section 16 A Keeping of books in computer floppies, disk-ettes, etc.- (1) Notwithstanding anything contained in section 16, the books provided under sub-section (1) of that section may also be kept in computer floppies or diskettes or in any other electronic form in the manner and subject to the safeguards as may be prescribed by the Inspector General with the sanction of the State Government. (2) Notwithstanding anything contained in this Act or in any other law for the time be-ing in force, a copy or extracts from the books kept under sub-section (1) given by the registering officer under his hand and seal shall be deemed to be a copy given under section 57 for the purposes of sub-section (5) of that section. *Inserted by Act 48 of 2001, Section 2 Section 17 ……... **(1-A): The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not regis-tered on or after such commencement, then, they shall have no effect for the purposes of the said section 53-A. ** Inserted by Act 48 of 2001, Section 3 Section 17 ……… sub-section (2) ………. *** (v) any document other than the doc-uments specified in sub-section (1-A) not it-self creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creat-ing a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or in-terest; or ***Substituted for “any document” by Act 48 of 2001, Section 3.

NOVEMBER 2012

Section 30: Registration by Registrars in certain cases- Any Registrar may in his discretion receive and register any document which might be regis-tered by any Sub-Registrar subordinate to him. **** Sub-Section (2) omitted by Act 48 of 2001, Section 4. Prior to its omission, Sub-Section (2) read as under:- “(2) The Registrar of a district in which a Presi-dency-town is included and the Registrar of the Delhi District (...) may receive and register any document referred to in section 28 without regard to the situation in any part of India of the property to which the document relates.” Section 32A: ***** 32A. Compulsory affixing of photo-graph, etc.- Every person presenting any doc-ument at the proper registration office under section 32 shall affix his passport size photo-graph and fingerprints to the document: Provided that where such document relates to the transfer of ownership of immovable proper-ty, the passport size photograph and finger-prints of each buyer and seller of such proper-ty mentioned in the document shall also be affixed to the document. ***** Inserted by Act 48 of 2001, Section 5 Section 52 Sub-Section (1)(a): (1)(a): The day, hour and place of presentation, ******[the photographs and finger-prints affixed under section 32-A,] and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it: ****** Inserted by Act 48 of 2001, Section 7 Section 69 Sub section (aa): *******[(aa) providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under sub-section (1) of section 16A;]. ********Inserted by Act 48 of 2001, Section 9.

*Order V Rule 8 sub-rule 5A & 5B

“(5A) Whenever orders on deemed service are required to be made on the basis of endorse-ment of such service or refusal under this rule, the person effecting service shall file an affidavit in the language known to him stating, inter alia, as to who were all present at the time of service. The Court, on consideration of such affidavit, shall pass orders as to deemed service.

(5B) If the contents of an affidavit filed under sub-rule (5A) are found to be false, the depo-nent can be summarily tried and punished for perjury and the concerned courier company can be black-listed.”

*“12A. Service of summons/notices on authorised agents of local bodies, statutory bodies, corporations and autonomous bod-ies:-

The District Judge in consultation with the local bodies, statutory bodies, corporations and autonomous bodies within the juris-diction of the district shall prepare a panel of their respective authorised agents empowered to accept service of summons/notices in the suits, appeals and other proceedings initiated against such local bodies, statutory bodies, corporations and autonomous bodies, on their behalf which shall be deemed as valid service.”

*Order VI, Rule 15, in sub-rule(4), after the words “his pleadings”, the following shall be inserted, namely:-

“further, on amendment of the pleadings, a fresh affidavit has to be filed in consonance thereof.”

*Order VII, Rule 14, in sub-rule(4), in sub-rule (4), for the words “plaintiff’s witnesses”, the words “defendant’s witnesses” shall be substituted.

*Order IX, Rule 5, in sub-rule (1), the follow-ing shall be substituted, namely:-

“(1) Dismissal of suit where plaintiff after summons returned unserved fails for seven days to apply for fresh summons:-

Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiffs fails, for a period of seven days from the next hearing of

the suit to apply for issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, un-less the plaintiff within the said period satis-fied the Court that -

(a) he has failed, after using his best en-deavour to discover the residence of the defendant who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it think fit.”

*Order XVIII, in rule 4, after sub-rule (8), the following shall be inserted, namely:-

(9) Whenever a Commissioner is appointed by the Court to record evidence to en-sure safe and proper custody of docu-ments entrusted to the Commissioner, the Court shall retain a set of photostat copies of such documents which are certified to be true copies by the Judge.”

*Order XXA, in rule 1, after sub-rule (f), the following shall be inserted, namely:-

“(g) Cost awarded under sub-rule (a) to (f) shall have to be actual or reasonable cost in-curred by the successful party including the loss of income during effective days of hearing, conveyance charges and lodging charges if any.

(h) In case the Court finds that in respect of statutory notice caused under Section 80 of the Code of Civil Procedure, reply given is evasive and vague and has been given with-out proper application of mind, the Court shall ordinarily award heavy costs, which shall not be less than Rs. 3,000/- against the Government or Statutory Body and direct it to take appropriate action against the con-cerned officer including recovery of costs from him.”

* Amended as per the Code of Civil Procedure (Amendment) (Karnataka) Rules, 2005 (w.e.f., 29.12.2006, vide Gazette notification No.LAW 293 LAC 2005)


Important amendments by the Karnataka State Legislature

Prevention of Corruption Act 1989-Section 19-Sanction

for prosecution-maintainability of private complaint-duties

of sanctioning authority-

Supreme Court of India

(Dr. Subramanian Swamy vs Dr. Manmohan Singh And

Anr.) on 31 January, 2012 Bench: G.S. Singhvi and A.K.

Ganguly, CIVIL APPEAL NO. 1193 OF 2012 decided on

31st January, 2012 2012 (3)SCC 64

While considering the nature and scope of consideration

by the sanctioning authority of sanction for prosecution

and the maintainability of a private complaint, the Apex

Court has observed as follows:-

“There is no provision either in the 1988 Act or the Code

of Criminal Procedure, 1973 (CrPC) which bars a citizen

from filing a complaint for prosecution of a public servant

who is alleged to have committed an offence. Therefore,

the argument of the learned Attorney General that the

appellant cannot file a complaint for prosecuting

respondent No.2 merits rejection. A similar argument

was negatived by the Constitution Bench in A.R. Antulay

v. Ramdas Sriniwas Nayak”. (Para-28)

“Before proceeding further, we would like to add that at

the time of taking cognizance of the offence, the Court is

required to consider the averments made in the complaint

or the charge sheet filed under Section 173. It is not open

for the Court to analyse the evidence produced at that

stage and come to the conclusion that no prima facie case

is made out for proceeding further in the matter. However,

before issuing the process, it that it is open to the Court to

record the evidence and on consideration of the aver-

ments made in the complaint and the evidence thus ad-

duced, find out whether an offence has been made out.

On finding that such an offence has been made out

the Court may direct the issue of process to the

respondent and take further steps in the matter. If

it is a charge-sheet filed under Section 173 CrPC,

the facts stated by the prosecution in the charge-

sheet, on the basis of the evidence collected dur-

ing investigation, would disclose the offence for

which cognizance would be taken by the Court.

Thus, it is not the province of the Court at that

stage to embark upon and shift the evidence to

come to the conclusion whether or not an offence

has been made out”.(Para-43)

“We may also observe that grant or refusal of sanc-

tion is not a quasi judicial function and the person

for whose prosecution the sanction is sought is not

required to be heard by the Competent Authority

before it takes a decision in the matter. What is

required to be seen by the Competent Authority is

whether the facts placed before it which, in a given

case, may include the material collected by the

complainant or the investigating agency prima

facie disclose commission of an offence by a

public servant. If the Competent Authority is

satisfied that the material placed before it is

sufficient for prosecution of the public servant,

then it is required to grant sanction. If the

satisfaction of the Competent Authority is other-

wise, then it can refuse sanction. In either

case, the decision taken on the complaint made

by a citizen is required to be communicated to

him and if he feels aggrieved by such decision,

then he can avail appropriate legal remedy”.

(Para-44)

“……..Therefore, the requirement to take the

decision with a reasonable dispatch is of the

essence in such a situation. Delay in granting

sanction proposal thwarts a very valid social

purpose, namely, the purpose of a speedy trial

with the requirement to bring the culprit to

book. Therefore, in this case the right of the

sanctioning authority, while either sanctioning

or refusing to grant sanction, is coupled with a

duty. The sanctioning authority must bear in

mind that what is at stake is the public confi-

dence in the maintenance of rule of law which is

fundamental in the administration of justice.

Delay in granting such sanction has spoilt many

valid prosecution and is adversely viewed in

public mind that in the name of considering a

prayer for sanction, a protection is given to a cor-

rupt public official as a quid pro quo for services

rendered by the public official in the past or

may be in the future and the sanctioning author-

ity and the corrupt officials were or are partners

in the same misdeeds. I may hasten to add that

this may not be factual position in this but the

general demoralizing effect of such a popular

perception is profound and pernicious”.(Para-75)

“By causing delay in considering the request for

sanction, the sanctioning authority stultifies

judicial scrutiny and determination of the

allegations against corrupt official and thus the

legitimacy of the judicial institutions is eroded.

It, thus, deprives a citizen of his legitimate and

fundamental right to get justice by setting the

criminal law in motion and thereby frustrates

his right to access judicial remedy which is a

constitutionally protected right. In this connec-

tion, if we look at Section 19 of the P.C. Act, we

find that no time limit is mentioned therein.

This has virtually armed the sanctioning author-

ity with unbridled power which has often result-

ed in protecting the guilty and perpetuating

criminality and injustice in society”.(Para-77)

Important judgments of the Supreme Court of India


http://indiankanoon.org/doc/1502681/

http://indiankanoon.org/doc/1502681/


Narcotic Drugs And Psychotropic Substances Act, 1985 , S.20(B)(1),S.36A,] S.20(B)(1),and S.36A - Punish-

ment for contravention in relation to cannabis plant and

cannabis – Jurisdiction of Special Courts .

2009-LAWS(Kar)7-63 (2011-Crimes-1-508), K.K. Rejji

vs State By Murdeshwar Police Station, Karwar [ Crimi-

nal Appeal No. 1719 of 2003: ] Date : 20th Jul ,2009,

Justice Jawad Rahim

While considering the nature and scope of jurisdiction,

Hon’ble High Court of Karnataka has observed as fol-

lows:-

“…….. The Act prescribes three quantities small quantity,

lesser than commercial quantity but greater than small

quantity and commercial quantity” (Para 12)

“Under the Act, Central Government is empowered to no-

tify what will be the small quantity, commercial quantity

and what will be small quantity, lesser than commercial

quantity but greater than small quantity and commercial

quantity. The Central Government, in exercise of that pow-

er has issued notification by virtue of Section 2 of NDPS

Act, 1985 vide notification dated 16.7.1996. As per the

said notification, Ganja is found at SI. No. 55. It defines

small quantity as 1000 grams i.e., 1 kg. And commercial

quantity as 20 kgs. In the instant case, whole plant was

weighing 10 kgs in the two gunny bags. If flowering or the

fruiting part was to be removed, which is actually defined

under the Act, the quantity would have been much less

than the total weight of the product seized. Had the investi-

gation officer done so, it would have been possible to de-

cide whether it was a small quantity or commer-

cial quantity or less than commercial quantity or more than

small quantity. That has not been done. Consequently, the

very jurisdiction of the Court is affected. This is because,

if the offence relates to small quantity then it will become

punishable with rigorous imprisonment up to period of six

months as provided under Section 20(b)(ii)(A) of the

NDDS Act. If the quantity is more than small quan-

tity but less than the commercial quantity it would

be punishable with imprisonment for a term which

may extend to ten years under Section 20(b)(ii)(B)

of the Act. Thus the quantum of punishment also

varies. Section 20 reads thus: "Section 20. Punish-

ment for contravention in relation to cannabis

plant and cannabis-Whoever, in contravention of

any provisions of this Act or any rule or order

made or condition of licence granted thereunder:

(a) cultivates any cannabis plant; or (b) produces,

manufactures, possesses, sells, purchases, trans-

ports, imports inter-State, exports inter-State or

uses cannabis, shall be punishable. (i) where such

contravention relates to clause (a) with rigorous

imprisonment for a term which may extend to ten

years and shall also be liable to fine which may

extend to one lakh rupees; and (ii) where

such contravention relates to clause (b) :- (A)

and involves small quantity, with rigorous im-

prisonment for a term which may extend to six

months, or with fine, which may extend to ten

thousand rupees, or with both; (B) and involves

quantity lesser than commercial quantity but

greater than small quantity, with rigorous im-

prisonment for a term which may extend to ten

years, and with fine which may extend to

one lakh rupees; (C) and involves commercial

quantity, with rigorous imprisonment for a term

which shall not be less than ten years but which

may extend to twenty years and shall also be

liable to fine which shall not be less than one

lakh rupees but which may extend to two lakh

rupees: Prouided that the Court may, for rea-

sons to be recorded in the judgment, impose a

fine exceeding two lakh rupees." There-

fore, there is no compulsory term of imprison-

ment envisaged in respect of small quantity, but

if offence relates to lesser than commercial

quantity but greater than small quantity pun-

ishment prescribed is rigorous imprisonment for

a term which may extend to ten years and with

fine which may extend to Rs. 1,00,000”. (Para 13)

“Depending upon the punishment that is pre-

scribed, the jurisdiction of the Court also varies.

This is prescribed by provision of Section 36A of

the Act, which reads thus: ……………….. ……

Thus, it is seen that a designated Court gets

jurisdiction to decide a case only if the punish-

ment prescribed is more than 3 years. If the

punishment prescribed is upto six months, then

the Special Court has no jurisdiction and the

trial has to be by a Magistrate under the

Cr.P.C. The non obstante clause contained in

Section 36A of the Act becomes applicable de-

pending upon the punishment prescribed. In the

instant case as the quantity itself is not speci-

fied, the designated Court could not have em-

barked on the trial. The jurisdictional Magis-

trate ought to have tried the offence against the

petitioners”.(Para14)

“It must be remembered that NDPS Act is a

special enactment which is a self-

contained constituent not only relating to inves-

tigation but preservation of contraband, its cer-

tification, its sampling and its production before

the Court. Provisions are mandatory in nature

and noncompliance to such provisions renders

conviction of the appellant for offence punisha-

ble under Section 20(b)(i) unsustainable”. (Para-

15)

Important judgments of the High Court of Karnataka


Section 6 of the Karnataka General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The effect of clauses (c) to (e) of section 6 of the Karnataka General Clauses Act

is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceed-ings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liabilities. ‘Any investigation, legal proceeding or remedy’ saved by clause (e) is only in respect of any right and privilege

‘acquired’ or ‘accrued’ and any obligations, liability, penalty, forfeiture or punishment ‘incurred’ within the ambit of clauses (c) and (d) of section 6. The saving of rights and liabilities is in respect of those rights and liabilities which were acquired or incurred under a repealed statute and not under the general law which is modified by a statute. The distinction between what is, and what is not a right preserved by the provisions

of section 6, General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere hope or expectation of, or liberty to apply for, acquiring a right. A distinction is drawn between a legal proceed-ings for enforcing a right acquired or accrued and a legal proceedings for acquisition of a right. The former is saved whereas the latter is not. The question whether a right was acquired or a liability incurred under a statute before its repeal will in each case depend on the construction of the statute and the facts of the particular case. The central issue in consider-ing this question in a controversial case will generally be whether the steps that remained to be taken under the repealed statute were steps necessary for acquiring a right or incurring a liability or whether they were steps required merely for enforcing a right or liability (a least contingent) that had come into existence.

In case of a bare repeal, there is hardly any room for a contrary intention, but when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether

and how far the new Act evinces a contrary intention affecting the operation of section 6, General Clauses Act. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them, for, unless such an intention is mani-

fested by the new Act, the rights and liabilities under the repealed Act will continue to exist by force of section 6, General Clauses Act. It is the repealing Act and not the Act repealed which has to manifest the contrary intention so as to exclude the operation of section 6. The silence of the repealing Act is consistent and not inconsistent with section 6 applying. Another line of approach may be to see as to how far the new Act is retrospective in opera-

tion. When, a saving clause in a new Act is comprehensively worded and is detailed, it may be possible to infer that it is exhaustive and expresses an intention not to call for the application of section 6, General Clauses Act. But normally a saving provision is not exhaustive of the rights and obligations saved or of the rights that survive the repeal and so the rights and obligations not expressly saved by the saving clause survive by recourse to section 6 of the General Clauses Act. A

provision in the repealing Act (which also enacts a new law) that the provisions of the new law ‘shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force’ does not show a contrary indication to displace the applica-tion of section 6 of the General Clauses Act for the repealed law deemed to be in force for enforcement of accrued rights and liabilities by virtue of that section is not a law ‘ for the time being in force’. If there be no analogous provision in the repealing Act, the rights acquired under the repealed Act would continue under that Act by virtue of section 6 of the Karnataka General Clauses Act unless the repealing Act shows a contrary intention to exclude the operation of section 6. If the Repealing Act expressly states that the provi-sions of the Section 6 of the Karnataka General Clauses Act, 1899, shall so far as may be applicable in respect of repeal of the

said enactment and Section 8 and 24 of the said Act shall be applicable, as if the said enactment had been repealed and re-enacted by this Act, the intention of the legislature in manifest. The provisions of the General Clauses applies except to the extent excluded.

Article

EFFECT OF SECTION 6 OF THE KARNATAKA GENERAL CLAUSES ACT

by Justice N. Kumar

Programmes of Karnataka Judicial Academy


Three days Refresher Course for Senior Civil Judges

working in various Districts of the State was conducted

from 18.10.2012 to 20.10.2012—19 Judicial Officers

participated in the Refresher Course.

Training session on CIS & Ubuntu software was conducted on

26.10.2012 for 40 Judicial Officers. Sri. A.T. Ukrani, Member

(Judicial) E-Committee, Supreme Court of India, New Delhi,

gave training to the Judicial Officers on the above subject.

Other News


Inaugural function of Launching of Website, e-News Letter and Judges’ Help Desk was

held in the Academy on 18.10.2012 at 5.45 p.m. Launching of Website was inaugurated

by Hon’ble Mr.Justice S. Rajendra Babu, Former Chief Justice, Supreme Court of India.

Releasing of e-News Letter was made by Hon’ble Mr.Justice Vikramajit Sen, Chief

Justice, High Court of Karnataka & Patron-in-chief, Karnataka Judicial Academy.

Opening of Judges’ Help Desk was done by Hon’ble Mr.Justice N.Kumar, Judge, High

Court of Karnataka & President, Karnataka Judicial Academy.

GOVERNANCE

KARNATAKA JUDICIAL ACADEMY

Hon’ble Mr. Justice Vikramjit Sen

Patron-in-Chief

Hon’ble Chief Justice,

High Court of Karnataka

Hon’ble Mr. Justice N. Kumar

President

Board of Governors

Hon’ble Mr. Justice Ashok B. Hinchigeri

Hon’ble Mr. Justice A.S. Bopanna

Hon’ble Mrs. Justice B.V. Nagarathna

Hon’ble Mr. Justice B.V. Pinto

karnataka judicial academy · cognizance of that offence without the accused being committed to it...

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