1. My brother Tulzapurkar has, in this Criminal Revision Application, referred to a Division Bench the question as to whether in a case falling under the provisions of Sections 236 and 237 of the Criminal Procedure Code, it is permissible for a criminal 'Court to alter the conviction from an offence which is of lesser gravity to an offence of greater gravity, as the question is one which is not directly covered by authority.
2. The facts of the case are that the petitioner (accused) was working as a medical officer attached to the State Reserve Police Camp Dispensary at Dhulia, and while he was so attached, he was alleged to have committed theft of certain medicines from the store-room of the dispensary of that camp. It appeared from the evidence led in the case that there were two sets of keys of the cupboards lying in the store-room as well as the dispensary from out of which these medicines were alleged to have been removed by the accused, one set remaining with the accused and the other with the compounder one Joshi. It also appeared from the evidence in the case that the accused was the principal man in charge of the dispensary. The trial magistrate before whom the accused was prosecuted on a charge framed under Section 381 of the Indian Penal Code, convicted the accused of that offence, but, on appeal to the Court of Session, the Sessions Judge, Dhulia, took the view that since the medicines were in the possession of the accused himself, he could not be convicted of the offence of theft which required that the present accused should have removed the article in question out of the possession of some other person without his consent. The learned Sessions Judge, however, took the view that in view of the provisions of Section 237 of the Code of Criminal Procedure it was open to him to convict the accused of the offence of criminal breach of trust by a public servant, and he accordingly changed the conviction of the accused from one under Section 381 of the Indian Penal Code to one under Section 409 of the Indian Penal Code, though he maintained the same sentence. Against that conviction and sentence, the accused has applied to this Court in revision. When the matter came up before my brother Tulzapurkar on September 17, 1968, he, as well as the learned advocates appearing before him, felt that it would be better if this point is decided once and for all by a Division Bench. My brother Tulzapurkar, therefore, referred to a Division Bench the question stated by me at the very beginning of this judgment. That is how the matter has come before us to-day.
3. It may be mentioned that the offence under Section 381 of the Indian Penal Code with which the accused was charged by the trial Magistrate is punishable with a maximum punishment of seven years and fine, whereas the offence under Section 409 of the Indian Penal Code of which the Sessions Judge has, in appeal, convicted the accused, is punishable with a maximum punishment of imprisonment for life, or for ten years and fine. The latter offence is, therefore, of 'greater gravity' as stated by my brother Tulzapurkar. Section 236 of the Criminal Procedure Code enacts that if an act or series of acts is of such a nature that it is doubtful which of several offences the facts proved will constitute, the accused may be charged with having committed all or any of such offences, or he may be charged in the alternative with having committed some one of those offences. Section 237 of the same Code is in the following terms:
If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
The statutory illustration to that section is in the following terms:
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.
Sub-section (1) of Section 238 of the said Code provides that where a person is charged with an offence consisting of several particulars some only of which constitute a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he can be convicted of the minor offence though he was not charged with it. Sub-section (2) thereof further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Mr. Kotwal for the petitioner commenced his argument by advancing the contention that this is not a case falling under Section 236 of the Criminal Procedure Code, because the accused being himself in possession of the goods in question, he could not have been charged with the offence of theft, but could only have been charged with the offence of criminal breach of trust, and there being no doubt in regard to the same, the case would not fall within the terms of that section. There does not appear to be force in that contention in view of the provisions of Section 27 of the Indian Penal Code, but it is not necessary for us to decide that point in view of the fact that my brother Tulzapurkar has only referred to us the question of law, which is formulated at the beginning of his judgment which proceeds on the assumption that the case is one falling under Sections 236 and 237 of the Criminal Procedure Code. It must be noted at this stage that Section 237, with which we are concerned in the present case, does not use the expression 'minor offence' at all, though that expression is to be found in Section 238 which follows it. It is well-settled (Nanak Chand v. The State of Punjab : 1955CriLJ721 : 1955CriLJ721 , and it is really unnecessary to refer to any authorities on the point as the plain language of Section 237 leaves no room for doubt in the matter, that Section 237 can be invoked only in cases which would fall within Section 236 which precedes it. Mr. Kotwal's main argument before us was, however, twofold. His first contention was that, on general principles of criminal jurisprudence, we should read into Section 237 a limitation to the effect that a person can be convicted under that section of an offence with which he has not been charged, provided that the offence for which he is convicted is not a higher offence but is a lesser offence. He has next contended that such a limitation should be imported into Section 237 by reason of the provisions of Section 238. I will proceed to deal with each of those contentions of Mr. Kotwal.
4. In my opinion, a section in a statute cannot be limited by any general or abstract principle of jurisprudence, however salutary, if the plain language of the section does not incorporate any such limitation. A limitation may, however, have to be read into a section of a statute by reason of another section of the same statute, or of some other statute, if the language of that statutory provision is wide enough to make it applicable to the section which is to be construed. In my opinion, Section 238 does not contain any general principle, but applies to a particular restricted class of offences which are independent of Sections 236 and 237 in so far as there may be cases governed by Section 238 to which Sections 236 and 237 would be inapplicable, and vice versa. There is, in my opinion, no reason whatsoever for reading into Section 237 a limitation that is to be found in Section 238 which deals with a totally different situation. Mr. Kotwal has argued that in so far as it is possible to conceive of a case falling under Section 238 which would also be covered by Section 237 read with Section 236, Section 237 must be read subject to the limitation which is to be found in Section 238, as the accused would otherwise be deprived of the benefit of that limitation by the Court resorting to the provisions of Section 237 and convicting him even of a higher offence. As observed by Bose J. in his judgment in the case of W. Slaney v. State of M.P. : 1956CriLJ291 , Para 35 the Code of Criminal Procedure does deal with the same subject-matter under different heads, and there is no doubt some over-lapping as far as its provisions are concerned. That, however, is, in my opinion, no ground for limiting the application of Section 237 only to 'minor offences' in the same manner in which the Legislature has limited the application of Section 238 of that Code. As stated by Maxwell on the Interpretation of Statutes (11th edn.), p. 265, in the case of penal laws, even if the Court comes to the conclusion that certain words have been accidentally omitted, they can be supplied by implication only if existing words in the statute would otherwise be deprived of all meaning. There can be no doubt that, even without reading the words which Mr. Kotwal has urged upon us to read into Section 237, the words of that section would have a clear and unambiguous waning as far as the situation to which they are intended to apply Having considered the question, apart from authority, I will now turn to the authorities that were cited before us by Mr. Chitnis on behalf of the State. The first decision which was cited by him was the decision of the Supreme Court in the case of Nanak Chand v. The State of Punjab. The question which arose before the Supreme Court in that case was whether the appellant, who had been charged inter alia with the offence under Section 302 read with Section 149 of the Indian Penal Code, could be convicted of the substantive offence under Section 302 of the Indian Penal Code. The conclusion reached was that prejudice was disclosed and an acquittal was, therefore, ordered. Section 236 of the Criminal Procedure Code was sought to be invoked before the Supreme Court, but in repelling that contention it was stated (at p. 1212) that the provisions of Section 236 can apply only in cases where there is no doubt about the facts which can be proved, but a doubt arises as to which of several offences had been committed on the proved facts, in which case any number of charges can be framed and tried, or alternative charges can be framed. It was, however, further observed in the judgment that, in those circumstances, if there be an omission to frame a charge, then under Section 237, a conviction could be arrived at on the evidence although no charge had been framed. As there was no doubt in the case before the Supreme Court about the facts and about the evidence, it was held that there was no room for the application of Section 236 of the Code of Criminal Procedure. The next decision which was cited by Mr. Chitnis was another decision of the Supreme Court in the case of W. Slaney v. State of M. P. already referred to above in another context. The facts of that case were that the accused along with one other person, was charged under Section 302 read with Section 34 of the Indian Penal Code, but there was no separate alternative charge of the substantive offence under Section 302 of the Indian Penal Code against the accused. His co-accused was acquitted for absence of evidence against him, but the appellant-accused was convicted of the substantive offence of murder under Section 302 of the Indian Penal Code. It was held by the Supreme Court that, having regard to the nature of the charge framed, the omission to frame a separate charge under Section 302 of the Indian Penal Code against the convicted accused was only a curable irregularity, and, on the facts of the case, it was held that there was no prejudice to the accused by way of failure of justice and the legality of the conviction was, therefore, not affected. The learned judges delivered three separate judgments. It was stated in the judgment delivered by Bose J. on behalf of himself and S. E. Das, Actg. C. J. (paras. 30 and 31) that Sections 237 and 238 are not part of the normal procedure, and Sections 225 to 238, 535 and 537 apply with equal force to every kind of departure from the normal rule laid down in Section 233 that there must be a separate charge for each offence, that Section 237 is only a corollary to Section 236, and that 'all these sections are governed by the over-riding rule about prejudice mentioned, in one form or another in sections 225, 226, 227, 228, 535 and 537. We think it would be monstrous to hold that a conviction cannot be set aside even when gross prejudice is proved in cases covered by Section 237 just because it does not speak of prejudice. We can envisage cases where there would be grave prejudice under that section as clearly as we can see cases where there would be none under the others.' It was further stated in the judgment of Bose J. (para. 40) that the words 'by the absence of a charge' in Section 232(1) cannot mean 'where there is a charge, but none for the offence of which the accused is convicted,' for that would necessitate reading into that section words that are not there. It would follow that Section 232(1) cannot apply to cases under Section 237 of that Code. Bose J. also considered the earlier decision of the Supreme Court in Nanak Chand's case cited above (paras. 53-55), and held that the same was based on the conclusion which the Supreme Court reached '' on the facts,'' after a careful and lengthy investigation in that case, that prejudice was disclosed. None of the above statements in the judgment of Bose J. h(sic) dissented from in the judgments of the other judges. In the case of G.D. Sharma v. State of U.P.  A.I.R. S.C. 400 the charge against the appellants was under Section 467 of the Indian Penal Code but the evidence showed that it -was possible to take the view that a ease under Section 477 A of the Indian Penal Code could be made out and the High Court, therefore, directed a retrial with the framing of a charge under each of those sections. In allowing the appeal and setting aside the order of the High Court, the Supreme Court observed (para. 11) that the provisions of Sections 236 and 237 are clear enough to enable a Court to convict an accused person even of an offence with which he had not been charged and that the High Court erred in ordering a retrial of the appellants and should have decided, on the evidence before it; whether any offence had been committed by the appellants. Another decision of the Supreme Court in the case of the State of Andh. Pra. v. Ganeshwara Rao : 3SCR297 , was also cited in the course of the argument before us but I do not think it necessary to discuss the same as it is concerned mainly with the question of the impact of Sections 233 to 236 on Section 239. The last decision of the Supreme Court to which I will refer is the decision in the case of Sunil Kumar v. State of W.B. A.I.R.  S.C. 706. The High Court had in that case altered the conviction of the appellant from that under Section 409 of the Indian Penal Code to one under Section 420, and the Supreme Court in dismissing the appeal held (para. 15) that all possible offences could have been charged in view of Section 236 of the 'Criminal Procedure Code as it could reasonably be said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute, and that, in accordance with the provisions of Section 237 of that Code, the appellate Court could, in law, convict the appellant of the offence under Section 420 of the Indian Penal Code instead of the offence under Section 409 of the Indian Penal Code which was founded on the facts proved at the hearing. In that case also, the earlier decision of the Supreme Court in Nanak Chand's case cited above was discussed (para. 19). It, was ultimately held (para. 27), on the facts of the case, that as the appellant could not be said to be prejudiced in his conviction under Section 420 of the Indian Penal Code on account of the non-framing of the charge and the consequent non-trial under Section 420 of the Indian Penal Code, his conviction was justified, as the framing of a charge under Section 420 of the Penal Code was not essential in view of the provisions of Section 237 of the Criminal Procedure Code. It was further observed that no question of irregularity in the trial arose in the case at all. These are all the decisions of the Supreme Court on the point which have been cited before us,
5. I may now refer to a decision of a single judge of this- Court in the case of Emperor v. Abdul Rahiman (1935) 38 Bom. L.R. 153 A.I.R.  Bom. 193 which was referred to in the course of the arguments before me. The learned Judge who decided that case took the view (at p. 158) that the test by which an offence is deemed in Section 238(1) of the Criminal Procedure Code to be a major or minor offence is not the gravity of the punishment incurred, as the said sub-section does' not refer to the gravity of the punishment at all, but merely refers to the number of particulars constituting the offence. The learned judge observed that he did not overlook the fact that Section 238(2) speaks of the proof of additional facts reducing an offence to a minor offence which would not accord with the view that the minor offence must always consist of fewer particulars than a major offence, but stated that that was only 'a new form that the situation takes.' With respect to the learned judge, I fail to see how the same expression can be given different meanings in the same section of the same statute, and I am unable to accept the explanation which he gives for the same. The question as to whether a particular offence is a major offence or a minor offence, and what is the test in respect of each of them, does not really arise in the case before us in view of the fact that neither of those expressions is used in Section 237 of the Criminal Procedure Code and I have taken the view that the limitation that is to be found by the use of the expression 'minor offence' in Section 238 of the Code of Criminal Procedure cannot be imported into Section 237 of that Code, I may, however, mention that the decision of Tyabji J. in Abdul Rahman's case has been dissented from by the Rajasthan High Court in the case of Parma v. The State in which it was held that the first test in judging whether the offence is a minor offence within the terms of Section 238 is the severity of the punishment, though that is not the only test and the other conditions laid down in Section 238, Sub-sections (1) and (2) must be fulfilled (para. 9). Mr. Kotwal has also relied upon the provisions of Section 72 of the Indian Penal Code for the purpose of showing that severity of punishment is material for the purpose of determining whether an offence is a major offence or a minor one, but, as already stated by me above, that question does not arise for our consideration, in the view which 1 have taken of the matter.
6. I hold that the proposition which clearly emerges from, the decisions of the Supreme Court in W. Slaney's case, as well as in Sunil Kumar's case, is that an accused person can be convicted of an offence with which he has not been charged by virtue of the provisions of Section 237 of the Code of Criminal Procedure in a case which would fall under Section 236 thereof, provided that the overriding rule about prejudice is borne in mind and taken into account, or in other words, provided that no prejudice is thereby caused to the accused. That is the only limitation that can be read into Section 237 of the Code of Criminal Procedure, having regard to its plain language and to the Supreme Court decisions discussed above. The fact that the offence of which an accused person is convicted by virtue of the provisions of Section 237 of the Code of Criminal Procedure is one of greater gravity than the one with which he had been charged does not, in my opinion, necessarily lead to the inference that the accused is prejudiced. The question as to whether the accused is prejudiced by reason of the provisions of Section 237 of the Criminal Procedure Code being invoked for the purpose of convicting him is a question of fact and must be decided on the evidence in and the circumstances of each particular case. In that connection, it may be mentioned that as far as the present case is concerned, the Sessions Judge, whilst acting under the powers conferred by Section 237 of the Criminal Procedure Code and convicting the accused under Section 409 of the Indian Penal Code, has not imposed a higher punishment on the accused than that which had been imposed upon him by the trial Magistrate under Section 381 of the Indian Penal Code. That, however, is a matter which will have to be considered by the learned single judge when the matter goes back to him. It may be mentioned that a single judge of the Oudh Chief Court has in the case of Emperor v. Shankar Dayal A.I.R.  Oudh. 263 taken the same view as we are taking in the present case, and we agree with the decision as well as the reasoning of the learned judge in that case. That appears to be the only reported case in which Section 237 has been expressly held to justify the conviction of an accused of an offence for which a higher punishment has been prescribed by the Indian Penal Code than that with which he was charged.
7. In the result, we answer the question referred to us by Tulzapurkar J. as follows:
In a case falling under the provisions of Sections 236 and 237 of the Criminal Procedure Code, it is permissible for a criminal Court to alter the conviction from an offence which is of lesser gravity to an offence of greater gravity, provided that prejudice is not caused to the accused thereby. This Criminal Revision Application will now go back to the learned single judge for disposal.
8. I agree and have nothing to add.