T.N.R. Tirumalpad, J.C.
1. In this reference, the learned sessions Judge has recommended that We conviction of the petitioners by the First Class Magistrate, Udaipur, Under Section 3/9 IPC may be set aside.
2. The case against them was that on 28-8-59, they dishonestly took away one Brita patrolman light belonging to the complainant from the shop of P.W. 2, where the complainant had temporarily kept it, A forage Under Section 403 IPC was framed against them. the defence of the petitioners was that the said patrolman lignin belonged to them, that sometime before the date of occurrence they had given the light of P. W. 2 for a function in his shop, that it appeared that the complainant had also given a patrolman light to P. W. 2, that there was a wrong exchange of the lights and the complainant had taken away the light belonging to the petitioners and had got his name inscribed on it, while the light belonging to the complainant was given to the petitioners and that all that the petitioners did on the date of occurrence was to hand over the complainant's light at the shop of P. W. 2 and to take away their own light from the said shop. They denied that they committed any criminal mis-appropriation.
Both the complainant as well as the petitioners adduced oral evidence in support of the ownership of the light me learned Magistrate found on the evidence that he was not able to come to a definite conclusion as to whether the light belonged to the complainant or to the petitioners. He found that he cannot convict the petitioners for criminal (mis-appropriation. Thereupon, what he did was to Tina them guilty Under Section 379 I. P. a of theft stating that the petitioners had taken the light from the possession or the complainant without his consent for their own gain. He said that he acted Under Section 237 I. :P. C. without Tram-ing a fresh charge Under Section 379.
3. The learned Sessions Judge has stated in his order of reference that as the petitioners were asserting their ownership of the patrolman light when they took it away from the shop of P. W. 2, it cannot be said that the petitioners did so dishonestly and hence they cannot be held guilty Under Section 379 IPC There is no doubt that the Magistrate was wrong in finding the petitioners guilty Under Section 379 IPC In order to prove dishonesty, the prosecution had to show that the petitioners had the intention of causing wrongful gain to one person or wrongful loss to another person. Where therefore the evidence in the case was that the petitioners removed the light in assertion of their own ownership of the property, n cannot be said that the petitioners acted dishonestly, me conviction Under Section 379 IPC was therefore wrong and it has to be set aside.
4. The conviction is also bad on another ground, when the petitioners were charged Under Section 403 I.P.C. was criminal mis-appropriation and were not charged unaer Section 379 I. ;P. C, the Magistrate cannot apply Section 237'Cr.PC to find them guilty Under Section 379 IPC Evidently, the 'Magistrate forgot that Section 237 Cr.PC has to be read along with section to Cr.PC and that it is only in a case where it is abuttal which of several offences the facts which can be prove will constitute, he can be convicted of the thence which be is shown to have committed without being charged with it. In other words the offence for which he is convicted must be a cognate offence. The ingredient for the offence of criminal mis-appropriation is dishonest mis-appropriation or conversion of property for a person's own use, whereas, Under Section 379 I.P.O., there must be not only dishonest intention, but there should to removal of the property from the possession of another person without the consent or that person. A specific charge Under Section 379 I.P.C. mentioning the ingredients to constitute an potency of men should therefore be framed against the petitioners and opportunity should be given to them to meet the said charge before they can be convicted of theft, it cannot be a one acting Under Section Z37 Cr.PC The charge of theft is certainly graver than a charge of criminal mis-appropriation and the punishment provided for the said charge is also greater. In such a case, the Magistrate cannot apply Section 237 Cr.PC and find a person guilty of mo graver offence without framing a specific charge, on max ground also the conviction of the petitioners was improper.
5. The reference is accepted and the conviction and sentence of the petitioners are set aside.