Chandea Reddy, J.
1. The petitioner is the same in both the cases and the charges against him in both were under Section 409, I.P.C. The case against him was that he committed criminal breach of trust in respect of Rs. 164-7-1 out of collection of land taxes between 28-4-1950 to 28-4-1951 forming the subject matter of the first case and a similar offence in respect of Rs. 745-6-4 between 29-4-1951 to 29/4/1952.
He was found guilty of the offence charged in both cases and sentenced to four months' rigorous imprisonment and a fine of Rs. 85/- with a default sentence of one month R. I. in the first case and to a fine of Rs. 170/- with a default imprisonment of two months in the second case. It may also be mentioned that the Village Munsif also was charged for and convicted of the same offences but he is not before us and it is not necessary to refer to his case.
2. In appeal, the Sessions Judge thought that the petitioner could not be convicted of the substantive offence under Section 409, I, P.C. the offence having been committed by the Village Munsif but that he should be convicted of abetment of that offence, as the petitioner conspired to facilitate the misappropriation. In his opinion, the petitioner could in any event be found guilty under Section 403 as it had been established beyond reasonable doubt that he had misappropriated the sums mentioned above and fulfilled the requisites of Section 403, I.P.C.
3. The judgment under revision is assailed mainly on the ground that the appellate Court had no jurisdiction to substitute a conviction for the abetment of an offence when he was charged in the trial Court only for the offence itself.
The foundation for this argument is - 'Padmanabha Payi Kanniah v. Emperor' 33 Mad 264 (A). There, the appellant and another were charged under Sections 467 and 468, I.P.C. and he was convicted under those sections. On appeal, it was found that since as there was no material to show that the document was altered by him, the convictions under Sections 467 and 468 could not be upheld.
Dealing with the request to convict the appellant for abetment of those offences, the learned Judges Munro and Abdur Rahlm JJ. remarked that it was not open to a Court to find a man guilty of the abetment of an offence on a charge of the offence itself. - Reg. v. Chand Nur' 11 Bom HCR, 240 (B) was relied upon for this view. This was followed by King J. in - Hampana Gowd v. Emperor' AIR 1936 Mad 280 (C).
To the same effect is the ruling of the Allahabad High Court in - 'Mahabir Prasad v. Emperor' AIR 1927 All 35 (D), and the opinion expressed by a Bench of the Nagpur High Court in - 'Kisandas v. Emperor' AIR l929 Nag 325 (E). In our opinion, these decisions should not be understood as laying down the proposition that; in no case a conviction for the abetment of the offence can be substituted when the prisoner was charged for the substantive offence itself. We feel that the rule could not be stated in such wide terms.
If on the facts a charge for abetment could as well be framed, it would then he competent for an appellate Court to after the conviction into one for abetment though the charge was for the substantive offence. If, on the other hand, the facts charged amount only to the main offence and there is no indication of the commission of any abetment it would not be competent for tee appellate Court, to substitute one for the other.
(3-A) The confines of this rule are set cut by Sundara Aiyar J. in - 'Subbayya v. Emperor' 23 Mad LJ 722 (F). The learned Judge remarked that 11 Bom HCB 240 (B), had not laid down any absolute rule t);at under no circumstances was such a substitution permissible. The distinction between the two cases is well brought out by the learned Judge in the following passage:
It is quite true that if the facts are not the same, the accused cannot be convicted for another offence the elements of which are not all included in the offence charged against him. Ordinarily the facts required to prove the abetment should not be included in the facts constituting the principal offence. The abetment would precede the commission of the principal offence itself where it consists of the abettor being a party to a conspiracy or in instigating the principal offence or helping the commission of it.
If he be present at the commission of the offence itself he would ordinarily be guilty of the principal offence. The abetment therefore would be complete before the principal offence is committed and the facts constituting the abetment need not be proved in order to prove the principal offence. No doubt in order to bring home the offence to any particular accused the facts preceding may be adduced in evidence by which by themselves may make him the abettor. But when the charge is of the principal offence only it cannot be said that he has to meet facts which occurred before the principal offence.
With respect we must say that the law on the topic has been stated correctly and succintly and we endorse the view of the learned Judge.
4. The opinion expressed by Desai J. in - 'Azam Ali v. Rex' : AIR1950All412 , relied on by Miss Prasanna Kumari in support of her contention is not different from that of Sundara Aiyar J. in - 'Subbayya v. Emperor', (P). This is how the learned Judge states the proposition:
The case for an appellate Court's substituting conviction for abetment becomes unanswerable where the facts mentioned in the charge itself make out a case of abetment. But in ordinary practice charges are so defectively framed by Magistrates and they lack details to such a lamentable extent, that there would rarely be a case in which the facts stated in the charge itself would make out a case of the principal offence as well as its abetment. In the present case the facts stated in the charge cannot make out a case of abetment.
5. What emerges from these decided cases is that, in the absence of facts stated in the charge which constitute the offence of abetment a conviction for abetment could not be substituted by an appellate Court if it finds that the conviction for the substantive offence itself is unsustainable. But if the facts charged are sufficient to frame a charge for the abetment, it is then open to an appellate Court to alter the conviction for the offence into one of abetment.
That this is not a rigid and inflexible rule appears from the recent pronouncement of the Supreme Court in - 'Bhagat Ram v. State of Punjab' : AIR1954SC621 . The law is stated by Jagannadhadas J. who delivered the opinion of the Court in these terms:
In an appropriate case the conviction may probably have been altered to one of abetment of an offence under Section 409, Penal Code.
The circumstances under which such an alteration could be effected have already been set out This point need not detain us any longer as It is unnecessary for us to express any opinion, whether such an alteration is permissible on the facts of this case, and whether the offence under Section 409, I.P.C. has been made out or not. The learned Judge has taken the view that the petitioner would in any view be guilty under Section 403, I.P.C.
This finding has not been assailed by us. That an accused charged with a major offence could be found guilty of a minor offence is evident from Section 238, Cr. P.C. It is indisputable that the offence under Section 403, I.P.C. is a minor one, compared with the one under Section 409, I.P.C. The counsel for the petitioner has not canvassed this position.
That being so, the petitioner could be validly convicted under Section 403, I.P.C. and he could be sentenced to two years rigorous imprisonment under that Section. So while we alter the conviction into one of misappropriation within the meaning of Section 403, I.P.C. we maintain the sentence This is not a case in which a lenient view should be taken as the petitioner was systematically misappropriating the collections of land tax for two years. In these circumstances the Revision Petitions are dismissed.