K. P. MOHAPATRA, J. ( 1 ) THE petitioner has challenged the order passed by the learned Sub-Divisional Judicial Magistrate, Bargarh convicting him under S. 323 of the Indian Penal Code ('i. P. C. ' for short) and sentencing him to pay a fine of Rs. 50/-, in default to undergo simple imprisonment for 15 days. ( 2 ) ON the informant (P. W. 1) lodging F. I. R. (Ext. 1) charge sheet was submitted against the petitioner for having committed offences under Ss. 294 and 341, I. P. C. The substance of the allegations is that on 24-10-1978 at about 9 p. m. when the informant (P. W. 1) was returning to his house by the village lane, the petitioner appeared at the scene, abused P. W. 1 in obscene language restrained him from proceeding further and gave a push whereby, the petitioner fell down on the ground. The defence plea was denial of the occurrence. ( 3 ) THE learned Sub-Divisional Judicial Magistrate took cognizance of the offences under Ss. 294 and 341, I. P. C. on 29-12-1978 and explained the particulars thereof to the petitioner on 5-2-1979. Thereafter, he proceeded with the trial of the case, recorded evidence of four witnesses in all, did not wait for recording the evidence of the investigating officer because, he did not appear in Court despite repeated summons and delivered the impugned judgment acquitting the petitioner of the charges under Ss. 294 and 341, I. P. C. and convicting him for the offence under S. 323, I. P. C. without addition or alteration of the charge as envisaged in S. 216 of the. Code of Criminal Procedure (hereinafter referred to as 'cr. P. C. ' ). ( 4 ) MR. J. P. Misra, learned counsel appearing for the petitioner has advanced a simple, but an attractive argument to the effect that the petitioner was gravely prejudiced in his defence because, he was charged for minor offences, but was convicted for a graver offence. In support of his contention he has placed reliance on AIR 1956 SC 116 , Willie (William) Slaney v. State of Madhya Pradesh. Learned Additional Standing Counsel has befittingly submitted that the learned Court below, in the facts and circumstances committed a material and incurable irregularity. ( 5 ) SECTION 294 provides punishment of imprisonment of maximum three months or fine or both. Learned Additional Standing Counsel has befittingly submitted that the learned Court below, in the facts and circumstances committed a material and incurable irregularity. ( 5 ) SECTION 294 provides punishment of imprisonment of maximum three months or fine or both. Section 341 prescribes punishment which may extend to one month or fine and S. 341 in the sense that it prescribes punishment which may extend to one year or fine which may extend to Rs. 1,000/- or both. So the moot point for consideration is whether the learned Sub-Divisional Judicial Magistrate was justified, while acquitting the petitioner of minor offences, to convict him of a major offence, without compliance of the provisions of Section 216, Cr. P. C. and if the petitioner was gravely prejudiced in his defence. ( 6 ) IN AIR 1956 SC 116 (supra) one of the observations made was to the following effect:-". . . . . On a charge for a minor offence, there can be no conviction for a major offence, e. g. , grievous hurt or rioting and murder. The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality. "if the learned Sub-Divisional Judicial I Magistrate was satisfied that the evidence on record was such that the petitioner could be ultimately convicted for an offence under S. 323, I. P. C. , he should have complied with the provisions of law by explaining the particulars of the charge relating to that offence and giving opportunity to the petitioner to cross-examine the prosecution witnesses already examined relating to the new charge. But this procedure was not adopted and so in view of the observation of the Supreme Court quoted above and in the absence of the learned Sub-Divisional Judicial Magistrate following the procedure prescribed in law, it cannot but be said that the petitioner was gravely prejudiced in his defence for the offence under S. 323, I. P. C. and the irregularity committed cannot be cured. ( 7 ) IN the aforesaid view of the matter, I would allow the criminal revision and set aside the impugned order. The petitioner is acquitted of the charge. Fine if realised be refunded. Revision allowed.