A. K. DAS, J. ( 1 ) THIS is a revisional application under Section 439, Code of Criminal Procedure against an order passed by Sri R. K. Sarma, Additional Sessions Judge, Birbhum dismissing the petitioner's appeal against an order of Magistrate, Suri, Birbhum convicting petitioner for an offence under Rule 41 of the Defence of India Rules and sentencing him to suffer rigorous imprisonment for two years. ( 2 ) THE prosecution case is that on 15th November, 1962 at Rajnagar Hat the petitioner delivered a public speech saying, inter alia "that there was no war between China and India; China was within its own territory; Government's appeal for gift of gold and other valuables is part of its business the people should not contribute money or gold. " ( 3 ) THE speech was heard by persons who attended the hat and the petitioner was therefore prosecuted for prejudicial activities as enumerated in clauses (e) and (n) of Rule 35 (6) of the Defence of India Rules. ( 4 ) THE petitioner pleaded not guilty and contended that he was falsely implicated to belittle him and the Communist Party of India before the people. He denied that he was present in the hat on the 15th November, 1962 or delivered the speech as alleged by the prosecution and contended that the prosecution was bad under Rule 154 of the Defence of India Rules in the absence of a report in writing of the facts constituting such contravention. He further pleaded that he was prejudiced by the amendment and alteration of the charge at a late stage which vitiated the whole proceeding. ( 5 ) THE learned Magistrate found that the prosecution witnesses who heard the speech in the market proved that he delivered the speech in the hat and its contents and that he was not prejudiced by the amendment or alteration of the charge as the trial was started de novo. The learned Magistrate also found that cognizance was taken on the charge sheet submitted by the Officer-in-Charge, Suri Police Station and that proceeding started thereafter was according to law. The learned Additional Sessions Judge who heard the appeal accepted the finding of the learned Magistrate and dismissed the appeal. ( 6 ) THE learned Advocate for the petitioner Mr. The learned Magistrate also found that cognizance was taken on the charge sheet submitted by the Officer-in-Charge, Suri Police Station and that proceeding started thereafter was according to law. The learned Additional Sessions Judge who heard the appeal accepted the finding of the learned Magistrate and dismissed the appeal. ( 6 ) THE learned Advocate for the petitioner Mr. Roy has urged that the identity of the petitioner was not established as the witnesses for the prosecution saw him for the first time on that date only and there was no test identification parade for the purpose of testing their identification. There is no substance in this argument as the prosecution witnesses who heard the speech in the hat are all local people and identified the petitioner as the man who delivered the speech. The learned Magistrate and the Court of appeal considered their evidence carefully and came to the same conclusion and we do not think that it is open to this Court sitting in revision to interfere with that finding of the Courts below. We may, however, point out that conclusion drawn by the learned Additional Sessions Judge on the basis of his failure to challenge identification in his statement under Section 342, Criminal Procedure Code is not correct, either on facts or on law. He made a detailed statement when he was examined for the first time under Section 342, Criminal Procedure Code denying his presence in the Hat or delivering his speech. The learned Additional Sessions Judge was not also right in holding that "the Court has every right to construe the silence and in construing the silence" "to find that" the allegation that the witnesses could not have properly identified the appellant. . . does not carry any weight". The Court may undoubtedly draw such inference as it thinks fit from accused's refusal to answer but the silence cannot be construed as a substitute for the prosecution evidence to establish guilt. The most that can be said of silence on the part of the accused is that he left unexplained the circumstances appearing in evidence but this does not lighten the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt. ( 7 ) THE learned Magistrate took cognizance on the basis of a charge-sheet submitted by the Officer-in-Charge, Suri Police Station on 22. 3. ( 7 ) THE learned Magistrate took cognizance on the basis of a charge-sheet submitted by the Officer-in-Charge, Suri Police Station on 22. 3. 63 wherein the subversive activity is stated as follows:"the gist of the case is that the accused Suren Banerjee was engaged in subversive and prejudicial activities affecting the safety and stability of the State, that is, property-Chinese activities during the period 21. 10. 62 to 21. 11. 62. " ( 8 ) RULE 154 (1) of the Defence of India Rules reads as follows:-"no Court or Tribunal shall take cognizance of any alleged contravention of these rules or of any order made thereunder except on a report in writing of the facts constituting such contravention made by a police servant. " ( 9 ) IN the Courts below the word "police servant" was read as public servant. The word "police servant" is rather unusual and we had it verified by the learned D. L. R. , who appeared for the State with reference to the India Gazette Extraordinary dated New Delhi, Monday, November 5, 1962 wherein also the same word "police servant" is used. We are not sure if it was through inadvertence or the Legislature really meant the report by a police servant. We may, however, point out that in the corresponding Rule 130 (1) of the Defence of India Rules, 1939 the word used is 'public servant' and not 'police servant'. In any case in the present case before us, the charge sheet was submitted by the officer in charge of the police station and nothing turns out on the wordings. Admittedly, there was no report other than the charge sheet and the question that arises is whether Rule 154 contemplated a report other than the charge sheet submitted by a police officer. The charge sheet, in our view, is also a report to the learned Magistrate taking cognizance and it cannot, therefore, be said that the charge sheet submitted by the officer in charge of the police station in writing does not satisfy the requirements of a report in writing in Rule 154 (1) of the Defence of India Rules. ( 10 ) THE next point, however, is of importance in so far as it provides that this report in writing must be of "facts constituting such contravention. ( 10 ) THE next point, however, is of importance in so far as it provides that this report in writing must be of "facts constituting such contravention. " In the present case, what has been stated is merely that the petitioner was "engaged in subversive and prejudicial activities affecting the safety and stability of the State, that is, property-Chinese activities. " This, in our view, is merely the allegation and not statement of facts constituting such contravention. The facts stating the contravention are, according to the prosecution, the contents of the speech delivered by the accused in the Rajnagar Hat stating that China was not at war with India, that China was still on her territory and exhorting people not to give money and gold for prosecution of war. These are the facts which, according to the prosecution, constitute subversive and prejudicial activities but these are not stated in the report upon which cognizance can be taken by the Court. That being the position, the cognizance taken by the Court did not satisfy the requirements of Rule 154 (1) and must be treated as bad in law and subsequent prosecution or conviction is illegal and cannot be supported. This question arose under the Defence of India Rules, 1939 before a Division Bench of the Sind High Court reported in (1) AIR 1946 Sind 37 and Davis, C. J. delivering the judgment of the Bench held that, "the report under Rule 130 must state the facts which constitute the offence and it is a condition of fundamental importance. The proceeding would not fail merely because of detailed facts were not mentioned in the police report. The omission to state material facts which are necessary to prove the offence against a particular accused is fatal since the very basis for the prosecution is wanting. " Their Lordships took into consideration the case reported in (2) 51 Calcutta, 402 in Re. Nagendra Nath Chakravorti where it was pointed out that there is a difference between a mere assertion of offences under certain sections and statements of fact, which if proved, would constitute those offences. " Their Lordships took into consideration the case reported in (2) 51 Calcutta, 402 in Re. Nagendra Nath Chakravorti where it was pointed out that there is a difference between a mere assertion of offences under certain sections and statements of fact, which if proved, would constitute those offences. The learned Additional Sessions Judge has referred to a case reported in (3) AIR 1961 (Supreme Court) page 24 (apparently the page number is wrong and the reference is to page 928 of the report) and has relied upon it to hold that the report in the charge sheet was sufficient. This decision refers to a similar provision in Section 11 of the Essential Supplies (Temporary Powers) Act, 1946. The learned Judge held as follows: "the report under Section 11 is required to contain only" a statement of facts constituting the offence" and its function is not to serve as a charge sheet against the accused. ( 11 ) THE two further requirements, viz. , that the report should be in writing and regarding the contents of the report, are to en sure that there shall be a record that the public servant is satisfied that a contravention of the law has taken place. If the contravention in question is sufficiently designated in the report, the requirements of the section are satisfied. " ( 12 ) THE report in that case not only set out the provisions of the law which the appellant contravened but it was stated there that being registered stockholders they had further, in order to conceal their crime, fabricated evidence. It was stated that the investigation revealed that the accused Bhagwati Saran had from time to time sold some iron bars on behalf of this firm after receiving price more than the controlled rate, which he had all along been getting printed, and had been getting some other receipts checked fictitiously under the Control Act from the Office of the Supply Officer and information relating to it was given to Sri P. M. Kapoor, the then D. M. Sultanpur by his munim Kalapnath and on it, a case was registered at this police station and investigation was made. . . . . . . The report further stated that 4 volumes of cash memos and 5 volumes of register of permits were deposited in the Malkhana and would be produced in evidence and followed it with a list of 13 witnesses. The Supreme Court held that if the contravention in question was sufficiently designated in the report, and in the present case that cannot be disputed, since besides a reference to the notification stated to have been contravened, the report stated that the accused had effected sales above the maximum price specified in the notification, the requirements of the section are satisfied. The further details would be necessary to be proved to bring home the guilt to the accused and these details would emerge at a later stage during the trial. In the instant case before us, however, the report contains nothing beyond recitals of the provisions of the Act regarding subversive and prejudicial activities affecting the safety and stability of the State, that is, property-Chinese activities, which is merely an allegation and not enumeration of the facts constituting such contravention and cannot be construed as a report contemplated in Rule 154 of the Defence of India Rules. It was open to the learned Additional Sessions Judge to draw the conclusion he has drawn from this decision of the Supreme Court. The same question was considered by the Privy Council on appeal from the High Court at Patna in Srinivas Mall Bairoliya v. King Emperor, reported in ILR 26 Patna, 461 where the report by the District Magistrate had stated that the accused had made excessive charges for bags of salt on four named dates in July and on other dates. These charges were said to have been exacted from retail salt dealers of the rural area which it was the business of one of the accused persons to supply. The report also stated that the Privy Council Officer had examined a number of these dealers and found that there was sufficient ground for presuming that the allegation was correct. The question that was argued before the Privy Council was whether in the circumstances the Court was justified in taking cognizance of the contravention alleged in the report. The Board held that it would not be right to interpret it as demanding a detailed formulation of charges with the names of witnesses. The question that was argued before the Privy Council was whether in the circumstances the Court was justified in taking cognizance of the contravention alleged in the report. The Board held that it would not be right to interpret it as demanding a detailed formulation of charges with the names of witnesses. In many cases more specific allegations would be desirable but in the particular circumstances of the case the Price Control Officer, with information of a series of offences before him, sufficiently complied with the rule by reporting the result of his opinion tested as it had been by the examination of a number of witnesses. Unfortunately, in the instant case before us the report contains no statement of facts at all and the report therefore did not disclose that there were materials for the public servant being satisfied or that sufficient compliance with the provision for a report in writing of the facts constituting such contravention has been made. There being no report under the law before the learned Magistrate, the cognizance is bad in law and the trial is vitiated. The obvious result would be that the conviction and sentence passed on the petitioner must be set aside. ( 13 ) WE will now deal with the manner in which the trial has proceeded. Initially, after taking cognizance the learned Magistrate framed the charge under Section 11 of the West Bengal Security Act, alternatively under Rule 41 of the Defence of India Rules by his order dated 4. 5. 63. The prosecution witnesses were examined and on 11. 5. 63 the accused was examined under Section 342 Criminal Procedure Code and the next date of trial was fixed on 21. 5. 63 for defence and argument. There were some intermediate dates and in between, P. W. 1 was further cross-examined by defence and the accused was also again examined under Section 342, Criminal Procedure Code. The question of misjoinder of charges arose thereafter and the learned Magistrate by his order dated 27. 6. 63 decided to strike off the charge under Section 11 of the West Bengal Security Act and retain those under Rule 41 of the Defence of India Rules in respect of prejudicial acts at Rajnagar Hat and Bideshipara, P. S. Suri. The charge as amended were read over and the learned Magistrate summoned all prosecution witnesses on a subsequent date. 63 decided to strike off the charge under Section 11 of the West Bengal Security Act and retain those under Rule 41 of the Defence of India Rules in respect of prejudicial acts at Rajnagar Hat and Bideshipara, P. S. Suri. The charge as amended were read over and the learned Magistrate summoned all prosecution witnesses on a subsequent date. They were examined and the accused was again examined under Section 342, Criminal Procedure Code on 13. 7. 63. The accused was examined thrice under Section 342 Criminal Procedure Code and during the first examination he made a detailed statement denying his participation in a meeting at Rajnagar Hat and claiming that on the relevant date he was not even at Rajnagar and had started for Suri from Calcutta in Danapur First Passenger train. ( 14 ) THE important question that arises is whether consequent upon this amendment of charge by striking out one of the two charges framed alternatively, trial de novo was justified and whether the trial has prejudiced the accused. Section 227, Criminal Procedure Code gives power to the Court to alter charge at any time before judgment is pronounced. Section 228 provides that after amendment of the charge the trial may proceed immediately as if new or altered charge had been the original charge unless it may result in prejudice to the accused in his defence or to the prosecutor in the conduct of the case. Section 229 provides that if the new or altered charge is such that proceeding immediately with the trial is likely "in the opinion of the Court" to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. In the case before us the charge is amended by canceling the alternative charges and the question of a new trial should not therefore have arisen. The learned Magistrate's orders also did not disclose that "in his opinion" proceeding immediately with the trial was likely to prejudice either party in the absence of which a new trial would not be justified. Examination afresh of prosecution witnesses may prejudice the accused by enabling the prosecution to plug loopholes in the evidence. The learned Magistrate's orders also did not disclose that "in his opinion" proceeding immediately with the trial was likely to prejudice either party in the absence of which a new trial would not be justified. Examination afresh of prosecution witnesses may prejudice the accused by enabling the prosecution to plug loopholes in the evidence. Trial de novo consequent upon amendment of the charges is permissible only where proceeding with the trial is likely, "in the opinion of the Court", to prejudice the accused in his defence or the prosecutor in the conduct of the case. It is not likely to be so in the facts of the present case and order-sheet does not disclose that the learned Magistrate took the question of prejudice into consideration at all and a trial de novo is not warranted by law. The immediate prejudice to the accused is that his detailed statement under Section 342 on his first examination has been left out of consideration, and the learned Judge hearing the appeal made adverse inference from his silence on his third examination under Section 342, Criminal Procedure Code. It is incumbent on the Magistrate before starting a new trial consequent upon amendment of charge not only to record the opinion of the Court as to likelihood of prejudice but also give an indication of the nature of the prejudice and without that the new trial would be bad in law. ( 15 ) WE have, however, already found that cognizance was not based upon a report in writing of the facts constituting such contravention and as such the trial is bad. We also had that a new trial in the facts of the case has prejudiced the accused in his defence and conviction and sentence passed on the petitioner cannot therefore be allowed to stand. ( 16 ) IN the result this application in revision is allowed and the conviction and sentence passed on the petitioner be set aside and he be released forthwith. ( 17 ) AT this stage, the learned D. L. R. drew our attention to an earlier decision of this Court on the bail application of the petitioner reported in (5) AIR 1964 Cal 220 . There, in pressing the petition for bail, the learned Advocate for petitioner relied on the provisions of sub-section (3-A) of Section 497. ( 17 ) AT this stage, the learned D. L. R. drew our attention to an earlier decision of this Court on the bail application of the petitioner reported in (5) AIR 1964 Cal 220 . There, in pressing the petition for bail, the learned Advocate for petitioner relied on the provisions of sub-section (3-A) of Section 497. Criminal Procedure Code for bail, on expiry of 60 days from the date fixed for taking evidence but it was pointed out that the provision did not apply as the learned Magistrate ordered a new trial on amendment of charge. The question of legality or appropriateness of the order of new trial in the facts of the case did not arise, nor was it considered and the decision therefore is not in conflict with our decision in the present petition. Application allowed.