1. It has been submitted by the Clerk of the Crown for consideration whether the sentences passed by me on accused Nos. 1 and 2 were in accordance with law.
2. Accused Nos. 1 and 2, with two other persons, were tried before me and a jury, under five charges : (l) the first charge was of a criminal conspiracy to print and forge railway tickets, to use them as genuine and to cheat intending passengers and the railway company (s. 120B of the Indian Penal Code). The other four charges were charges of having committed offences in pursuance of the said conspiracy, viz., (2) of forging railway tickets ( Sections 467, 34), (3) f)i forging the tickets knowing that they would be used for the purpose of cheating ( Sections 468, 34), (4) of dishonestly using the tickets as genuine (ss, 467, 471, 34), and (5), of cheating by fraudulent and dishonest representations of having purchased the tickets and inducements, requests for payment etc., connected with or following such representations ( Sections 417, 34).
3. The jury brought in unanimous verdicts of ' not guilty' against all the accused in respect of the first four charges. As to the fifth charge the jury unanimously acquitted accused Nos. 3 and 4; but a majority held accused Nos. 1 and 2 guilty. I accepted the verdict of the majority finding accused Nos. 1 and 2 guilty under the 5th charge, viz., of cheating in pursuance of the conspiracy. I deferred passing sentence for a day, and then after hearing counsel, sentenced accused Nos. 1 and 2 to terms of imprisonment and fines.
4. The question now raised is whether the verdict of the majority as to the fifth charge was legal,-whether accused Nos. 1 and 2 can be found guilty under the fifth charge, having been found not guilty under the first four charges, (the first of which was of conspiracy), and whether consequently my sentences on accused Nos. 1 and 2 were legal and ought to be allowed to stand.
5. The Clerk of the Crown submitted this question when the warrants were placed before me for signature. Out of deference to that Officer's doubts, I had the matter argued before me.
6. It was contended for the Crown, mainly on the strength of the Criminal Procedure Code, Section 369, that at the present stage this Court has no authority to consider the question raised; that the sentences having been pronounced, they cannot be altered, except under the Letters Patent, Clause 25 or 26.
7. Section 369 of the Criminal Procedure Code runs as follows:
Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error.
So that clerical errors may be corrected; but otherwise no Court may, after it has signed its judgment, alter or review it except by virtue of a power derived under the Code or other law or the Letters Patent. The effect of Section 369 may-speaking broadly and without attempting strict accuracy,-be put under three heads - (1) it saves powers to correct clerical errors; (2) it provides that as a general rule no Court shall alter or review its judgment after it has signed it, except to correct clerical errors; and (3) in cases where the judgment has been signed and it is sought (in contravention of the general rule) to alter or review the judgment for the purpose of correcting errors other than clerical, power to correct such errors is reserved only if it can be derived from any provisions in (a) the Criminal Procedure Code, or (b) in any other law for the time being in force, or (c) (in the case of a High Court established by Royal Charter), by the Letters Patent of such High Court.
8. The alleged error in the present case is certainly not clerical. It is argued therefore that Section 369 prevents the correction of the alleged error at the present stage unless jurisdiction to do so is derived from some provision of the Code or any other law for the time being in force, or the Letters Patent.
9. I shall refer to the Letters Patent a little later; but I must first observe that what I have stated as the general rule under Section 369 comes into operation only when the Court has signed its judgment. In the case of the High Court exercising its Ordinary Original Criminal Jurisdiction, no judgment nor any other pronouncement of its decision is signed until the warrant is signed by the presiding Judge. The warrant is drawn up some little time after the sentence has been orally pronounced. The practice has been for the Judges in proper cases to review their sentences though already pronounced in Court so long as the warrant has not been drawn up and signed. That practice does not seem to me to conflict with Section 369 but to conform with the implications in what is left unexpressed in Section 369. I therefore come to the conclusion that, not having yet signed the warrant, the power to alter or review my sentences does not fall under what I have stated as the general rule contained in Section 369. Nor does the case fall under the third head of Section 369 as stated by me. I may, therefore, act in accordance with the practice without seeking the support of any specific provision in the Code or other law or the Letters Patent.
10. If I am right in this view, then the question is, whether the verdict of the majority of the jury holding accused Nos. 1 and 2 to be guilty under the 5th charge was legal and could have been accepted, and whether thereupon sentences could legally be passed upon the 1st and the 2nd accused. The legality of the verdict of the majority is questioned because the fifth charge is of cheating in pursuance of the conspiracy, and the jury have unanimously found all the accused not guilty of the offence of conspiracy. The jury, it is rightly contended, cannot, therefore, find under the fifth charge that in pursuance of a conspiracy-which the jury held did not exist-accused Nos. 1 and 2 cheated or did any fraudulent or dishonest acts.
11. But the verdict of the jury on the fifth charge in reality expresses the view that though it is not proved that there was any such conspiracy as the fifth charge alleges, yet accused Nos. 1 and 2 did fraudulently and dishonestly represent that they had purchased railway tickets (though it is not proved that they had conspired or agreed amongst themselves or with the 3rd and the 4th accused to make such representation) and that they induced passengers to refrain from purchasing tickets from the railway, and that they committed the offence of cheating, punishable under Section 417. The verdict was at the time taken, and in my opinion rightly taken, to be a verdict only that the offence of cheating under Section 417 had been committed by the two accused.
12. As I deferred passing sentences till the day following the verdict and the accused were defended by counsel, there was sufficient time to consider the practical bearing of the question. It was not then, nor has it to-day, been suggested that except from the aspect of its technical legality there is any reason why the verdict may not be accepted.
13. The question then turns into the question whether on the jury finding all the accused unanimously not guilty on the first four charges, it was legally permissible to find the accused guilty of cheating on the fifth charge under Section 417-in other words, whether on a charge of cheating in pursuance of a conspiracy, the accused may be found guilty of cheating without a conspiracy.
14. The answer to that question must be found, it seems to me, in Sections 236, 237 and 238 of the Criminal Procedure Code. It is desirable to consider these sections together. The first deals with a case where the facts proved are of such a nature that it is doubtful which of several offences the facts that are proved constitute. In such a case the accused may, under Section 236, be charged with having committed all or any of such offences; and under Section 237 he may be convicted of an offence although he was not charged with that particular offence: where the accused is charged with one offence and it is proved that he has committed a different offence for which he might have been charged under Section 236, he may be convicted of the offence which is shown to have been committed, although he was not charged with it. These two sections, therefore, deal with cases where all the facts constituting the offence of which the accused is sought to be convicted have been alleged in the charge and have been proved, but where it is doubtful what offence those facts constitute. It may accordingly happen that the accused is convicted of an offence with which he was not charged.
15. Under Section 238 again a person may be convicted of an offence with which he is not charged, provided that the facts constituting the offence of which he is sought to be convicted have been alleged and proved, although other facts are also alleged and those other facts are not proved. The section deals in terms with a case where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and where such combination is proved, but the remaining particulars are not proved. In such a case the accused may be convicted of that offence which the combination of the particulars that are proved constitutes, although the remaining particulars are not proved,-and this notwithstanding the fact that the specific offence with which he was charged would have been proved only if the rest of the particulars which had been alleged had also been proved-so that he cannot be convicted of the specific offence with which he has been charged.
16. It was argued that Section 238 is not applicable to the present case, though several particulars were mentioned in the charge, and some of the particulars are proved while other particulars have not been proved and though a combination of those particulars that have been proved constitutes an offence. The contention is that the offence which the particulars that have been proved constitutes is not a minor offence within the terms of Section 238. It is admitted that there is no definition of the expression ' minor offence. (The expression ' major offence' is not used in the section, but it is convenient to adopt it in the present context.) It is argued that the expression ' minor offence' can apply only to a case where, for instance, a person is charged with murder, but it is proved that he has committed not the major offence of murder but the minor offence of grievous hurt or the still more minor offence of simple hurt. I do not think the argument relied upon is sound. It seems to me to proceed on the unwarranted assumption that the test by which an offence is deemed in Section 238 (I) to be major or minor is the gravity of the punishment incurred. The sub-section does not refer to the gravity of punishment at all: it merely refers to the number of particulars constituting the offence: if a number of particulars is needed to constitute the offence, then for the purposes of Section 238 (1) it may be called the major offence: if a combination of some only of such particulars constitutes a complete offence, then that offence is referred to in Section 238 (1) as the minor offence. I do not overlook that Section 238, Sub-section (2), speaks of the proof of additional facts reducing an offence to a minor offence, and this does not accord with the view that the minor offence must always consist of fewer particulars than the major offence. But this is only a new form that the situation takes. In any case, I do not think it is necessary to pursue the question, because it is admitted that in the present instance the charge alleged several particulars, all of which were not proved: but a combination of those that were proved constitutes a complete offence, viz., the offence of cheating. As it happens, if all the particulars that were alleged had been proved, liability to a higher punishment would have been incurred. Presumably this would happen in most cases: the additional particulars would not be alleged in the charge unless they had the effect of enhancing the punishment or some similar effect; the charge would presumably not allege more facts than are necessary for proving liability to the highest punishment. But, confining myself to the present case, I do not see in what sense that offence, which the facts that have been proved constitute, is not to be considered a minor offence. It is a minor offence in the sense that it consists of a combination of fewer particulars than were alleged; it is also a minor offence in the sense that punishment to which the accused became liable is less grievous than that to which they would have been liable if all the particulars alleged in the charge had been proved.
17. The view taken by me of the verdict seems to me, therefore, to have been in accordance with law, that though all the particulars alleged in the fifth charge had not been proved, some of them had been proved; that a combination of the particulars that have been proved constitutes a complete offence,- the offence of cheating,-which must under Section 238 (1) be considered, for the purpose of this charge, to be a minor offence. The accused may consequently be found guilty under the fifth charge of the offence of cheating not committed in pursuance of any conspiracy.
18. It was pressed upon me by counsel that there was a degree of doubt in the question; and it was suggested that I should in some form express the desirability of a certificate under Clause 26 being granted by the Advocate General. I think these arguments were based on some misapprehension. My own view is that, as I have not yet signed any judgment, the Criminal Procedure Code, Section 369, does not preclude the correction of any error that may be discovered in the sentences that I have pronounced,-that I may at the present stage 'correct the error (if there was any) without deriving authority to correct the error from any provision in the Code, or any other law for the time being in force or in the Letters Patent of this High Court. In other words, I think, I have not finally and irrevocably pronounced any sentences: if I find that the sentences verbally pronounced by me were illegal, I can consider them as not pronounced, and proceed in accordance with law. If then I had agreed with the view presented by the counsel for the defence, the proper course for me would have been to give effect to that view by my own revised sentences or if I had felt doubtful on the point, to exercise my discretion under Clause 25 of reserving the point of law for the opinion of the High Court. I have not considered it necessary to follow either course.
19. What, however, was referred to by counsel was Clause 26, not Clause 25, of the Letters Patent. Clause 26, so far as relevant, gives the High Court power and authority to review the case and alter the sentence of the Court of Original Criminal Jurisdiction, on its being certificated by the Advocate General that in his judgment there is an error in the decision of a point or points of law decided by the original Court, or that a point or points of law decided by the said Court should be further considered. This provision is to be brought into operation after the Court of Original Criminal Jurisdiction has decided the case. It would be obviously improper for me, in the view that I have taken, of saying anything with reference to the certificate referred to in Clause 26, which is for the purpose of my errors being reviewed and set right.
20. In my opinion, therefore, I need not give any other orders; the warrants will be drawn up in accordance with the sentences already pronounced by me.