1. This is an application for revision of an order of the Sessions Judge, Aligarh, convicting one Mahabir Prasad of the offence of abetment of burglary. Mahabir Prasad, who is a Post Office clerk, was charged along with another person with committing burglary at the Aligarh Post Office and stealing a sum of about Rs. 14,000. Both were found guilty by the Assistant Sessions Judge and Mahabir Prasad appealed to the Sessions Judge. The latter found that it was not proved that Mahabir Prasad, took part in the burglary, but he convicted him of abetment of the offence. Put briefly, the view taken by the learned Sessions Judge is that Mahabir Prasad used his position in the Post Office to obtain the keys of the safe and strong room and had duplicates made which were used by the burglar or burglars to enter the office at night and remove this large sum of money.
2. It was laid down by the Bombay High Court as far back as the year 1874 in the case of Reg. v. Chand Nur 11 B.H.C.R. 240, that it is not open to a Court to find a man guilty of abetment of an offence on a charge of the offence itself. The only section under which the appellate Court can base a conviction for abetment is Section 423, Criminal P.C. This section empowers an appellate Court to alter the finding and maintain the sentence. But this section must be read with Sections 237 and 238 of the Code. Section 237 deals with a case where the offence has been wrongly described in the charge sheet and Section 238 deals with a case where a Court finds that the major offence of which the accused has been charged has not been brought home to him but a minor offence has been proved. Abetment is not a minor offence and it can only come under Section 237 if there is no element in the abetment which is not included in the charge. The learned Assistant Government Advocate attempts to support the order of the Sessions Judge in this case by referring to a ruling of the Madras High Court, Yeditha Subbaya v. Emperor  23 M.L.J. 722; but this ruling does not in any way assist the case set up for the Crown on the contrary, the judgment of the Bombay High Court to which I have already referred, is carefully considered and followed by the Madras High Court in this very case. As the learned Judge observes:
Ordinarily, the facts required to prove the abstinent would not be included in the__facts constituting the principal offence.... The abetment, therefore, would be complete before the principal offence is committed.
3. The principle underlying these rulings is that no man should be convicted of an offence on a charge which he has not had an opportunity of answering. In the present case Mahabir Prasad was never charged with abetting the commission of this burglary by obtaining duplicate keys, and although the trial Court Went into this question in detail, it did so merely in order to use this circumstance as proof that the accused took part in the burglary; but now that the lower Court has held that the accused did not take part in the burglary, and the finding that he abetted the offence before its commission by obtaining duplicate keys is contrary to law.
4. The only question which I have still to decide is whether I should order a retrial or not. I have been through the whole of the evidence in this case and I find that there is a strong suspicion against this Mahabir Prasad. The reason for this suspicion is that he had an opportunity of obtaining duplicate keys, because on two occasions he was in charge of the Treasurer's key and on one occasion, there is a suspicion that he obtained possession of the Postmaster's key. It is not proved, nor even alleged, that,he is the only person who could obtain access to the two keys, and the evidence that he actually obtained the Postmaster's key is only this: that the Postmaster missed the key at 4 p.m. one day and that the accused searched for it and found it in a register the next day. This is suspicion, but not proof; and apart from this incident there is very little to connect the accused with the case. Much is made of his movements on the evening of the burglary; but there is nothing that he did on that night which is incapable of an innocent explanation. The learned Judge seems to lay some stress on the fact that Mahabir Prasad was pointed out by the co-accused during the investigation; but this fact even if it is admissible in evidence, is discounted by the finding of the learned Judge that these men were known to each other before. There is absolutely no proof that the accused had duplicates made of the keys, that he handed over the keys to his co-accused, or that he obtained any part of the stolen property, for the finding of three five rupee notes in his possession proves nothing.
5. I do not consider that on this evidence I should be justified in ordering a re-trial for had the case come before me in appeal it is not improbable that the accused would have been acquitted. I, therefore allow this application, set aside the conviction and sentence passed upon the accused and order that he be set at liberty. The fine if paid, will be returned to him.