Khalle vs Harnarain

Khan, J.—Har Narayan lodged a complaint before the Sub-Divisional Magistrate, Moongawali u/s 379 Indian Penal Code, that 3000 bricks were stolen from his klin during his absence when be had been away to see his ailing mother, who enventually died. He later on discovered that two cartloads of bricks were taken away by the accused Khalle. The trial Court held that the facts were proved, but instead of convicting the accused u/s 379 I.P.C. for theft, the trial Court held him guilty u/s 403 for the offence of criminal misappropriation and fined him Rs. 20. The accused being unable to file an appeal because of the bar of Section 413 Cr. P.C. filed a revision before she Sessions Judge of Guna, who has made this reference for setting aside the conviction and sentence on the ground that since the accused was not charged u/s 403, he cannot be convicted under it.

In expressing this view the learned Sessions Judge has followed the decisions given in Criminal Revisions No. 52 of 1951 and 70 of 1953 of the Madhya Bharat High Court. In these cases it has been held that where a man is charged under a particular offence, he cannot be convicted for having committed another offence. With great respect I am of the opinion that these unreported decisions of the Madhya Bharat High Court require reconsideration, because according to Section 237 of the Criminal Procedure Code, such a conviction is perfectly valid. Section 237 says that if the accused is charged with one offence, and it appears from the evidence that he has committed a different offence for which he might have been charged, the accused may be convicted of the offence of which he is shown to have committed although he was not charged with it.

The illustration to Section 237 Cr. P.C. makes the meaning abundantly clear. The illustration runs thus:

A is charged with theft, It appears that he committed the offence of criminal breach of trust or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.

I am further fortified in my opinion by a decision, of their Lordships of the Privy Council reported in AIR 1925 130 (Privy Council) Begu and other v. King Emperor. In this case their Lordships of the Privy Council observed that where the accused were charged u/s 302 I.P.C. and on evidence they were found to be guilty of an offence u/s 201. (causing the evidence of crime to disappear) and so were convicted under the latter section, the conviction was proper.

Similarly the or Lordships of the Supreme Court in Bijjoy Chand Potra Vs. The State, Bijoy Chand Patra v. State of West Bengal held that where the accused was charged u/s 307, Penal Code he might be convicted u/s 326, even in the absence of a charge in respect of it, if on the facts of the case he could be charged alternatively under Sections 307 and 326 I.P.C., In making this pronouncement, their Lordships of the Supreme Court, followed AIR 1925 130 (Privy Council) which has been referred to above.

For reasons stated above the recommendation of the learned Sessions Judge is unacceptable and I hold that although a person may be charged under a particular offence, yet he can be convicted of a different offence, provided the evidence supports it.

Reference rejected.